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Ship Arrest and the Malaysian Admiralty Court
Welcome to the realm of maritime law and conflict of laws. This is a realm maritime lawyers are familiar with. It is crucially important that the Judge/Arbiter is able to understand the legal and technical issues involved in these maritime cases. In Malaysia, the importance of having a specialist Admiralty Court (“Court”) gained impetus from the needs of the industry and this culminated with the setting up of the Court in October 2010.
A common order issued by the Court is the Warrant of Arrest (“Warrant”). This Warrant once executed on the vessel will prevent the vessel from leaving the Court’s jurisdiction. It is a powerful remedy which can result in quick settlement or the sale of the arrested vessel.
The Malaysian Court is based in Kuala Lumpur and operates as a specialist court within the Commercial Division of the Kuala Lumpur High Court. Since its inception in October 2010, the establishment of the Court quickly became an important support to the growth of the maritime sector in Malaysia. The Court has since its inception rapidly became an important adjunct to spurring the growth of the maritime sector in Malaysia.
The industry quickly embraced the Court as a preferred means to resolve shipping disputes, as the Court possessed several important attributes. In line with an Arbitration friendly stance, Vessels can be arrested in aid of intended and ongoing Arbitration.
The appointment of an Admiralty Judge meant that the cases will be heard before a specialist arbiter, who better appreciates the industry and the technical aspects of a shipping claim. The realm of admiralty practice with its in rem procedure and technical aspects is not easily understood by generalist judges, and the industry and shipping lawyers no longer have to delve into the basics of the law every time a shipping case is argued.
The other attribute that is appreciated by the users of the Court is that the Court operates within a nine-month deadline in which the Court will strive to complete a trial from the date of the filing of the writ. The other apparent benefit of the Court is that there are nominal costs as the only costs parties need to incur are the court filing fees. Thus, the Court offers plenty to litigants – a specialist judge, speed and costs. These benefits were traditionally only found in the realm of Arbitration.
Admiralty jurisdiction under the Court exercises "the same jurisdiction and authority in relation to matters of admiralty as is for the time being exercisable by the High Court of Justice in England under the UK Supreme Court [ now Senior Courts] Act 1981.
Traditionally, the admiralty jurisdiction was limited to hearing claims falling under Sections 20(1) and (2) of the UK Supreme Court Act 1981. Under the Admiralty Court Practice Directions, the categories of cases that can be heard by the Court was expanded from the 18 categories of Admiralty matters within s.24 (b) of UK Supreme Court Act 1981 as applied by the Courts of Judicature Act 1964 to include the following:
Written by: Philip Teoh Partner Head of Practice Shipping, Admiralty, International Trade and Insurance [email protected] Our Admiralty Practice is headed by our Partner Philip Teoh, a Senior Practitioner who argued the Inaugural Reported case of the Admiralty Court who is also an Arbitrator with the key Maritime Arbitration Centres. He has also written key Practitioner Texts. We regularly handle matters in the Court and the Appellate Courts up to the apex Federal Court; we would be happy to answer your enquiries.
- Claims relating to carriage of goods by sea;
- Limitation of actions for maritime claims, including actions seeking to limit liability or for extension of time where the limit of liability or the time for commencement of proceedings is prescribed by maritime convention or legislation;
- Disputes pertaining to marine insurance and reinsurance contracts, including marine insurance agents and brokerage contacts;
- Disputes arising from shipbuilding agreements, including issues with regard to the construction, design, maintenance and repair of ships;
- Disputes arising out of the sale and purchase of ships;
- Civil claims arising out of marine pollution Marine or shippingrelated agency, freight and multimodal transport and warehousing of goods at any port in Peninsular Malaysia;
- Claims related to ship financing and documentary credit for the carriage of goods by sea;
- Death or personal injury, loss or damage arising out of a marine activity in or about a marine facility, which includes ports, docks, berths or any form of structure defined as a ‘ship’ under maritime law;
- Civil claims arising from any breach of any marine regulations, notices, by-laws, rules or guidelines;
- Disputes pertaining to the welfare of any seaman, including wages and contract of service; and
- Applications in connection with maritime arbitrations, including applications for the preservation of assets pending maritime arbitration and the review, setting aside and enforcement of maritime arbitration awards. Appeals in respect of a maritime claim are determined by the Subordinate Courts.
Written by: Philip Teoh Partner Head of Practice Shipping, Admiralty, International Trade and Insurance [email protected] Our Admiralty Practice is headed by our Partner Philip Teoh, a Senior Practitioner who argued the Inaugural Reported case of the Admiralty Court who is also an Arbitrator with the key Maritime Arbitration Centres. He has also written key Practitioner Texts. We regularly handle matters in the Court and the Appellate Courts up to the apex Federal Court; we would be happy to answer your enquiries.