Nature of Admiralty Jurisdiction
What is the nature of Admiralty Jurisdiction in Malaysia?
Malaysian Admiralty Jurisdiction is derived from the class of actions available within Sections 20 to 24 of the UK Senior Courts Act 1981 via section 24(b) of the Court of Judicature Act 1964. Apart from this the admiralty jurisdiction of Malaysia is also entrenched in section 3 of the Territorial Sea Act 2012; section 5 of the Baselines of Maritime Zones Act 2006. The rules that regulate admiralty jurisdiction in Malaysia falls within Order 71 of the Rules of Court 2012 together with the Practice Directions for Admiralty Actions namely PD 2/2007 and PD 1/2012.
What type of claims are available to affected parties?
The events that triggers the admiralty jurisdiction mentioned above are as follows (as seen in section 20(2) of the Senior Court’s Act 1981:-
a) Claims to the possession or ownership of the ship or to the ownership of a share therein;
b) Claims arising between co-owners of a ship as to possession, employment or earnings of the ship;
c) Claims in respect of mortgage of or a charge on a ship or any share therein;
d) Claims arising from damage done to a ship and by a ship;
e) Claims that arise from loss of life or personal injury;
f) Claims for any damage for good carried on a ship;
g) Claims arising out of an agreement relating to carriage of goods on a ship or to the use or hire of a ship;
h) Claims for salvage service;
i) Claims for towage in respect of ship or aircraft;
j) Claims for pilotage in respect of a ship or an aircraft;
k) Claims in respect of goods or materials supplied to a ship for her operations or maintenance;
l) Claims in respect of the construction, repair or equipment of a ship or dock charges or dues ;
m) Claims by a master or crew of a ship for wages;
n) Claims by master, shipper, charterer or agent in respect of disbursements on account of a ship; and
o) Claim for the forfeiture or condemnation of a ship or for the restoration of a ship or goods after seizure or for droits of admiralty
What are the common remedies available to parties under an admiralty claim?
The most commonly remedy is the right in rem (right over the property i.e ship or vessel) against the wrongdoer. This is to enable the aggrieved party to arrest the ship or vessel of the other party to enforce his claim.
Apart from this the other remedy available is that of right in personam (action against a person or entity owning a ship or vessel). For example, this is a remedy whereby the aggrieved party can sue the party who owns the ship or vessel directly as long as the wrongdoer submits to the jurisdiction of the court.
In what circumstances are the right in rem applicable?
Actions in rem are claims within sections 20(2) of the Senior Courts Act 1981 which satisfy sections 21(2), 21(3) and 21(4) of the same act. These include, but not limited to, maritime liens, ownership rights, mortgages and rights of forfeiture of a ship.
In what circumstances are the right in personam applicable?
The right in personam actions are applicable when the defendant submits to the jurisdiction of the High Court as seen within section 21(1) of the Senior Courts Act 1981(UK) but it is curtailed by section 22 of the same Act.
How can an action in rem be beneficial as opposed to an action in personam?
The action in rem provides security for the claimant by way of a ship arrest, establishes the jurisdiction on the merits of the claim and once the in rem claim form is issued it reduces the statutory right in rem on the relevant ship thus protecting the claimant even if the ship is sold as the right follows the ship. The right in personam is limited in its jurisdiction due to section 22 of the Senior Courts Act and thus very much limited in application than an action in rem.
How is a claim in rem be enforced?
A claim in rem is usually enforced by way of an arrest of the ship in question. When the claimant applies for the arrest of the ship and a warrant is issued for such arrest, the ship will be arrested by the Admiralty Court Sheriff or his officers. Once arrested, the shipowner will most often than not pay the claim sum to enable the ship to continue on its voyage to its destination.
This article is written by our Principal Associate, Chakaravarthi
- What is the nature of Admiralty Jurisdiction in Malaysia? Malaysian Admiralty Jurisdiction is derived from the class of actions available within Sections 20 to 24 of the UK Senior Courts Act 1981 via section 24(b)...What is a Letter of Credit and its function? A letter of credit is a form of a documentary credit used in international trade. A letter of Credit comes into the picture when the buyer...
- What is the source of Marine Insurance law in Malaysia? Malaysian marine insurance legal jurisprudence is covered by the Marine Insurance Act of 1906 which was recently amended by the Insurance Act 2015 (both being...What is the source of law for carriage of goods by sea in Malaysia? In Malaysia, carriage of goods by sea is governed by the Carriage if Goods By Sea Act 1950. This Act adopted...
- What is the source of law for cargo claims for goods carried by sea in Malaysia? In Malaysia, cargo claims by sea are governed by the contract provided by a Bill of Lading subject to...