The Wrongful Arrest of Ships.

I recently came across a delightful paper published in issue 6, 2011 of the Journal of International Maritime Law by Dr Aleka Mandaraka-Sheppard, the author of the indispensable ‘Modern Maritime Law’, a barrister and maritime arbitrator, and the Chairman of the London Shipping Law Centre.
The case argues a reform of the standards to allow claimants to proceed in rem against a ship. Under English law, the test for wrongful arrest, as derived from the old authorities of the Privy Council, The Evangelismos and The Strathnaver, requires proof by the owner of the arrested ship of mala fides or crassa negligentia, implying malice. on the part of the arresting party. This test elaborated and well settled for more than 150 years, is sustained by reasons that claimants are to be protected by affording them the right to arrest a ship to obtain security for their legitimate claims against companies that often have but one tangible asset moving from one jurisdiction to another, that can be either sold or lost at sea. Beside, there is a policy that English jurisdiction should be amenable to claimants and such a low threshold of the test for possible wrongful arrest does not discourage them from bringing their claims to this jurisdiction.
The rigid English test provides claimants with immunity from being sued for damages as defendants are discouraged from seeking compensation for wrongful arrest. However, the phenomenal damages that may develop from a ship’s arrest, and the cases were defendants have been coerced without a shadow of reason into caving into unreasonable demands against illegitimate claims beggars the need without yet a decision of the Supreme Court on the issue, to introduce cross-undertaking in damages.
However, three years after this paper was published the new Act 14/2014, of Sea Going Navigation has brought a sensible solution to this matter in the jurisdiction of Spain, achieving a balance between the interests of claimants and owners. This however would only move frivolous or malicious claimants to bring their actions in England. But, being Christmas Eve, let me write more about it later.