Ship Arrest in New Zealand, by Jeanette Waite
Phillips Fox
209 Queen Street
Auckland, New Zealand
Tel: +64 9 303 2019
Fax: +64 9 303 2311
Email: auckland@phillipsfox.com
Web: www.phillipsfox.com
New Zealand law provides that after the issue of a notice of proceeding or counterclaim in rem, the plaintiff or the defendant to the notice or counterclaim may apply for the arrest of the ship against which the action or counterclaim is brought. The purpose of an arrest is to obtain security for the applicants claim. Upon provision of adequate security either the applicant for arrest or a party interested in the ship may apply for its release.
A ship or one of her sister ships (if any) may be arrested where:
1. The applicant’s claim comes within one of the categories set out in the Admiralty Act 1973 which provides for the extent of the Courts in rem jurisdiction.
2. In rem proceedings have been commenced in the High Court.
3. The ship or one of her sister ships (if applicable) is in New Zealand.
4. It has been established from the central registry of the Court that no caveat against arrest has been entered.
The application for a warrant of arrest must be supported by an affidavit. The affidavit must depose to:
(i) The name and description of the party at whose instance the warrant is to issue; and
(ii) The nature of the claim; and
(iii) The name or nature of the property to be arrested; and
(iv) The extent to which the claim has been satisfied, the amount claimed paid into Court, or security for payment of the claim which has been given to the Registrar; and
(v) Whether any caveat against the issue of a warrant of arrest has been filed and, if so, whether a copy of the notice of proceeding or a notice requiring payment or security has been served on the caveator.
The applicant must also give an indemnity to the Registrar and, if requested, pay an amount by way of security to the satisfaction of the Registrar for fees, expenses and harbour dues (if any). Whilst the ship remains under arrest the Registrar may from time to time require additional security to cover fees, expenses (such as watchmen and crew sustenance) and harbour dues (if any).
Provided the above matters are complied with the Registrar must issue a warrant of arrest.
Service of the warrant of arrest
The warrant must be served by the Registrar or any person lawfully authorised to act as the Registrar. The warrant may be served on any day including public holidays, Sundays, Good Friday or Christmas Day. The warrant covers the ship and everything belonging to it. Once the warrant has been served it is contempt of court for the Master or any other person having notice of the arrest of the ship to move that ship from where it is lying or interfere with the ship in any way without the consent of the Registrar.
Court fees
Court fees for the issue and service of a warrant of arrest are approximately NZ$1,000.
Form of security
Most commonly, contractual security is agreed between the parties, usually in the form of a P&I Club letter of undertaking. Other acceptable forms of security are payment into Court and a bail bond.
Release
To obtain a release from arrest the following documents are filed either by the applicant for arrest or by a party interested in the ship:
1 Request for release from arrest
2 Draft release from arrest
Payment of costs upon release
Liability to pay the costs, charges and expenses due in connection with the care and custody of the ship while under arrest is on the party who requests the release.
It is not difficult to arrest a ship in New Zealand. Provided the ship is in New Zealand, an arrest can usually be affected within hours of receiving instructions. By obtaining security for its claim, the applicant can ensure that it does not ultimately obtain an empty judgment against the ship and its owners.
This summary has been prepared by Phillips Fox for the general information of users of www.shiparrested.com. While it directs attention to, and comments upon, aspects of the law, it is not intended to provide legal advice in the area. For legal advice, please contact the Phillips Fox contact named at the intended port of arrest.