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Index
Cover
ENFORCEMENT OF MARITIME CLAIMS
LLOYD’S SHIPPING LAW LIBRARY
Title
Copyright
Preface
Outline Table of Contents
Contents
Table of Cases
Table of Statutes
Table of Statutory Instruments
Table of Conventions and Treaties
INTRODUCTION. MARITIME CLAIMS AND THEIR CONSEQUENCES
1. The tripartite nature of maritime claims
2. The relevance of a foreign element
3. Statutory and Convention development
Statutes
Conventions enacted into English law
Civil Jurisdiction and Judgments Acts 1982, 1991 and Order 2001
Further developments
4. Matching statute and convention
PART I. JURISDICTION AND MODES OF ENFORCEABILITY
CHAPTER 1. SOURCES OF ADMIRALTY JURISDICTION
1. The Admiralty framework of the Supreme Court Act 1981
(i) The list of claims (section 20)
(ii) The "maritime lien" (section 21(3))
(iii) Actions "in personam" and actions "in rem" (section 21)
2. Sources outside the Supreme Court Act 1981
Admiralty, common law and equity
Statutes, judicial creativity and Admiralty
Statutes as to a jurisdictional source
The Civil Jurisdiction and Judgments Act 1982 (as amended) and Order 2001 and maritime claims
3. Conclusion
CHAPTER 2. THE NATURE OF MARITIME CLAIMS
1. Heads of jurisdiction—the framework of the Supreme Court Act 1981
Section 20(1)(a), (2), (4), (5), (6)
Section 20(1)(b), (3)
Section 21(3)
Section 20(1)(c)
Section 20(1)(d)
(i) The application of the framework despite foreign connections
Jurisdiction
The applicable law
(ii) Jurisdiction based on the past and the future
A. Looking to the past
B. Looking to the future
2. Other than the Supreme Court Act 1981
3. Categories of enforceability
Claims enforceable by action "in rem"
Claims enforceable by action "in personam"
PART II. JURISDICTION OF ENGLISH COURTS AND ARBITRAL TRIBUNALS
CHAPTER 3. JURISDICTION BASES FOR ENFORCEMENT OF MARITIME CLAIMS
1. Jurisdiction to decide substantive jurisdiction
2. The substantive "jurisdiction base"
Service of process and jurisdiction bases
The development of jurisdiction bases
3. Particular jurisdiction bases
1. Convention texts directly enacted
2. Conventions reflected in English law
3. Conventions in force to which the United Kingdom is not a party
4. Generally applicable jurisdiction bases
The European jurisdiction conventions and regulation
CHAPTER 4. THE JURISDICTION AND JUDGMENT REGULATION AND CONVENTION—BOUNDARIES AND STRUCTURE
1. The general pattern
The Regulation and Convention on Jurisdiction and Judgments
Connections with the Community
Interpretation of the Regulation and Convention
The role of national laws
Relationship with other Conventions
Application within the United Kingdom
Application to other United Kingdom territories
2. The applicability of the Regulation or Convention
1. The subject-matter—"civil or commercial matters"
2. Proceedings to which the Regulation or Convention applies
3. Consideration of jurisdiction by the adjudicating court
1. Declining jurisdiction
2. Stay of proceedings
CHAPTER 5. FORUM LAW OR COMMUNITY REGIME?
1. The basic dichotomy
Applicable regime or national law?
2. Applicability of national law of the forum
A. Where defendant is not domiciled in a Member State
B. Extension of scope of national law rules (Articles 2, 4)
C. Limitation actions
3. Applicability of the Regulation or Convention regime
1. Criteria of applicability other than the defendant's domicile
2. The domicile of the defendant in a contracting State
CHAPTER 6. REGULATION 44/2001 AND THE BRUSSELS CONVENTION—JURISDICTION ALLOCATION IN INITIAL PROCEEDINGS
1. Reference to another Convention
The scope and effect of the reference
2. Conventions relevant to enforcement of maritime law claims
3. Mandatory allocation of jurisdiction
4. Optional allocation of jurisdiction
(i) Claims for limitation of liability
(ii) Where the defendant is domiciled in a contracting State
CHAPTER 7. JURISDICTION AS BETWEEN ENGLAND, SCOTLAND AND NORTHERN IRELAND
1. Regime allocation to a place in the United Kingdom
2. Domestic allocation following allocation to the United Kingdom as a whole
3. The intra United Kingdom structure
Applicability of the adapted framework
CHAPTER 8. THE LUGANO CONVENTION—DIVERGENCES FROM REGULATION 44/2001 OR THE BRUSSELS CONVENTION
1. Applicability of Article 57—priority of other conventions
2. Individual employment contracts
(i) Jurisdiction agreements (Article 17)
(ii) Place of performance (Article 5(1))
3. Relationship to Brussels Convention (Article 54B)
CHAPTER 9. ENFORCEMENT OF MARITIME CLAIMS BY AN ACTION "IN PERSONAM"
1. The claims for which an action "in personam" is available
2. Procedure of enforcement
The Civil Procedure Rules 1998
Jurisdictional aspects
The hearing of maritime claims
Admiralty claims
Commercial claims
3. Nature of the action "in personam" as compared to the action "in rem"
4. Jurisdiction in actions "in personam"
5. Jurisdiction through service of a claim form
6. The "in personam" claim form
7. Service in England
Individuals
Service in England to avoid service out?
Corporations
8. Steps following service
Acknowledgement of service
Particulars of claim and defence
9. Through an action "in rem"
Failure to acknowledge service or issue
Action in relation to arrest
The concept of "in rem" submission "in personam"
10. Service of a claim form outside England
Service not requiring permission
Service requiring permission
The claimant's task when permission is required
Categories of claim for serving out
The appropriate forum
Service of the claim form
11. Submission to the jurisdiction
A. Through procedural steps
B. Through submission before the court
12. Remedies available
A. On the merits
B. Interim remedies—the "freezing injunction"
13. County court jurisdiction
CHAPTER 10. ENFORCEMENT OF MARITIME CLAIMS BY AN ACTION "IN REM"
1. Availability of the action "in rem"
Admiralty claims excluded from "in rem" jurisdiction
2. The nature of the action "in rem"
The action in rem, lien and arrest
Personification
The procedural view
A third view—suggested origin of Admiralty liens in hypothec and deodand
The relevance of the three views
3. Claims for which action "in rem" is available under section 21(2)-(4)
(i) Maritime liens (section 21(3))
(ii) In relation to claims within section 20(2)(e)-(r)
(iii) In relation to claims and questions within section 20(2)(a), (b), (c), (s)
The "sweeping up" clause
4. Jurisdiction prerequisites other than the Supreme Court Act 1981
Link between the issue and England required for an action "in rem" to be brought
5. Procedure of an action "in rem"
Jurisdiction "in rem"
Commencement
Acknowledgment and amendment of the claim form
Persons other than defendants
Duration of action "in rem"
6. The inter-relationship of action "in personam" and action "in rem"
7. County court jurisdiction
CHAPTER 11. DELAY IN SUIT
1. Effect of delay
Delay and the Civil Procedure Rules (CPR)
Extinguishment of right or remedy?
Avoidance of effect of delay
2. Aspects of delay
1. Effect of foreign time bar
2. Notice of the claim
3. Commencement of suit—issue of claim form
3. Delay in service of claim form
4. Delay in complying with the procedural requirements
5. Abuse of process and want of prosecution
6. Delay in assertion of the remedy
Judgment on order on the merits
Provisional remedies
CHAPTER 12. RESTRICTIONS ON JURISDICTION
1. The Regulations and Brussels and Lugano Conventions—"multiple proceedings"
As between a Member State and non-Member State
Powers and duties of the courts
Elements of the provisions
2. Restrictions on English proceedings other than under the Brussels or Lugano Convention
1. Inherent jurisdiction to stay proceedings
2. Foreign forum agreements
3. Arbitration agreements
4. The appropriate forum—"forum conveniens"
5. Issue estoppel and cause of action estoppel
6. Sovereign immunity
7. Jurisdiction restrictions relating to specific types of claims
8. Abuse of process
CHAPTER 13. ARBITRATION
1. English law and international agreements
The UNCITRAL model law—transnational arbitration
The New York conventions on the recognition and enforcement of foreign arbital awards 1958
The Geneva convention on the execution of foreign awards 1923
The convention on the law applicable to contractual obligations 1980
EC Regulation 44/2001 and the Brussels and Lugano Conventions
Other Conventions
Arbitration and litigation
Arbitrations and English law
Enforceability of arbitration agreements in English law
2. The English statutory framework—The Arbitration Act 1996
The general framework
Review of and appeal to courts from arbitration decisions
3. Delay in arbitration proceedings
In commencement of proceedings
Delay in prosecution of proceedings
4. The arbitration award and its enforcement
English arbitration awards
Foreign arbitration awards
PART III. INTERIM RELIEF
CHAPTER 14. NATURE AND BASIS OF INTERIM RELIEF
1. Types of relief and procedure
1. In favour of the claimant
2. In favour of the defendant
3. Interim relief in arbitration proceedings
2. EC Regulation 44/2001 and the Brussels and Lugano Conventions
Interim relief in favour of the defendant
3. Measures after judgment
EC Regulation 44/2001 and the Brussels and Lugano Conventions
CHAPTER 15. ARREST AND ALTERNATIVE SECURITY
1. Introduction
The three functions of arrest
Alternative security
2. The international seene
Convention Relating to the Arrest of Sea-Going Ships 1952
The Collision (Civil Jurisdiction) Convention 1952
The Hamburg Rules 1978
Convention on the Contract for the International Carriage of Goods by Road 1956 (the CMR)
Conventions relating to Limitation of Liability 1924, 1957 and 1976
Summary
3. The arrest framework in English law
Arrest and the action "in rem"
Arrest as security
Counter security?
Property liable to arrest
Arrest warrant and in rem claim
Stage in proceedings when arrest available
Restrictions on availability of arrest
Arrest procedure
Marshall's powers during arrest
"Wrongful" arrest
Termination of arrest—release
4. Judicial sale
5. Security alternative to arrest
Security in substitution for arrest
6. Arrest and detention under legislative powers
7. Arrest and execution of judgment
CHAPTER 16. THE "FREEZING" INJUNCTION
1. Nature and purpose
2. Roots and development
English and foreign elements
3. Requirement of an undertaking by applicant in damages and expenses
Damages
Expenses
Other proceedings
Case to be made by the applicant/claimant
Risk of dissipation of assets and likely default
4. Ancillary orders in aid of the injunction
Order for disclosure of assets
5. Effect of the injunction
In relation to the defendant
In relation to third parties
6. The form of the order—the "maximum sum" approach
7. Comparison of arrest and the freezing injunction as provisional remedies—a summary
PART IV. SECURITY ON THE MERITS—THE LIEN CONCEPT
CHAPTER 17. NATURE AND DEVELOPMENT OF LIENS
1. The nature of a "lien"—or what's in a word?
Lien and mortgage
Lien and charge
2. The development of liens in English law
A. A common law, equity and statute
B. Admiralty
3. Which lien and when?
One lien or more?
Priorities
4. Foreign liens
5. Liens and the registration of interests
6. Insolvency and liens
1. Companies
2. Individuals—bankruptcy
7. Maritime liens, statutory liens in Admiralty and the action "in rem"
1. The categories of claim enforceable by action "in rem"
2. The Supreme Court Act 1981 and the action "in rem"
3. Remaining uncertainties of the scope of the lien in Admiralty
4. Lien and action "in rem"
CHAPTER 18. MARITIME LIENS
1. Claims to which a maritime lien may attach
2. Consequences of attracting a maritime lien
3. The nature of the maritime lien
1. The maritime lien and the action "in rem"
2. The "maritime lien" as a legal category of claims
3. The modern maritime lien and statutory lien in Admiralty compared
4. The maritime lien—procedure or substance?
4. Assets subject to a maritime lien
1. A ship
2. Other property
5. Enforceability of maritime liens
Procedure or personification
Different aspects of enforceability
6. Transferability of maritime liens
1. Voluntary transfer
2. Involuntary transfer
7. Extinction of maritime liens
1. Immunity from suit
2. Delay of suit
3. Effect of stay of proceedings
4. Provision of security
5. Bankruptcy and liquidation
6. Agreement, waiver and estoppel
7. Destruction of the property
8. Judgment or arbitration award on the merits
9. Sale by the court
8. The international framework relating to maritime liens
1. The Convention of 1926
2. The Convention of 1967
3. The Convention of 1993
CHAPTER 19. STATUTORY LIENS IN ADMIRALTY
1. The action "in rem" and statutory liens in Admiralty
2. Nature of the "statutory lien"
1. Origins and early development
2. The Supreme Court Act 1981—the present framework for the action "in rem"
3. "The statutory lien in Admiralty"—is it to be equated with the action "in rem"?
4. Summary
3. Creation of the lien
4. Assets subject to the lien
1. Claims under section 21(4)
2. Claims under section 21(2) or section 20(1 )(c)
5. Transferability
6. Termination
7. The legal consequences of attracting the action "in rein"—a summary
CHAPTER 20. POSSESSORY LIENS
1. Nature of a possessory lien
2. Assets subject to the lien
3. Common law possessory liens (applying to but not created primarily in maritime law)
1. Generally applicable principles
2. General liens
3. Particular liens
4. Maritime possessory liens
Maritime and other possessory liens
Claims to which maritime possessory liens attach by usage
Enforceability, enforcement and termination
The individual liens
Claims to which maritime possessory liens attach by statute
CHAPTER 21. EQUITABLE LIENS
1. The substance of the lien
Equitable lien and equitable charge
Reservation of title clause
2. The equitable lien in Admiralty
3. Creation of the lien
1. By contract
2. Arising from the relationship of the parties
3. Arising from a course of conduct
4. Enforceability of the lien
1. Against third parties
2. Tracing into other assets
5. Transferability
6. Termination
CHAPTER 22. CREATING A LIEN BY CONTRACT
1. The lien clause—general considerations
Common clauses
Multi-lien clauses
The lien clause in context
2. The liens created
1. Owner's lien on cargo
2. Owner's lien on subfreights or sub-hire
3. Charterer's lien on ship
4. Lien not to be suffered or permitted to continue
3. Charterer's liability dependent on exercise of owner's lien—a "cesser clause"
4. The need for registration
5. The governing law
CHAPTER 23. PRIORITIES
1. The general problems of priority
2. Principles of priority in English law
1. The basic principles of "in personam" priority
2. The Admiralty rules of priority "in rem"
3. Priority between "in rem" and "in personam" claims
3. The priority structure of English law
1. Title (or ownership)
2. Use for a specified period of time
3. Security interests
4. Priority relationship between actions "in rem" and "in personam" proprietary interests
1. Ownership
2. Mortgage, charge and lien
3. Interests created by statute
4. The execution creditor
5. Effect of sale by the court in action "in rem"
6. Summary
5. Attempts at international frameworks—mortgage and liens
PART V. REMEDIES
CHAPTER 24. LIMITATION OF LIABILITY
1. The general principle
The link between liability and limitation proceedings
2. International limitation frameworks
Global limitation
Limitation for particular claims in addition to "global" limitation
3. Limitation of liability in English law
The general pattern
1. Global limitation
2. Oil pollution claims
3. The Pilotage Act 1987
4. Dock and canal owners, harbour and conservancy authorities
CHAPTER 25. REMEDIES DETERMINATIVE OF SUBSTANTIVE ISSUES
1. Finality of litigation—the effect of a judgment or arbitration award
2. Remedies generally and in Admiralty
1. The remedy awarded
2. Enforcement of judgments of English courts
PART VI. FOREIGN LAW
CHAPTER 26. APPLICATION OF FOREIGN LAW
1. The English approach
1. The four stage process
2. Limitations on the selection process
3. Choice of law and jurisdiction
4. Maritime claims and the English choice of law process
2. Alternative approaches to selection by classification qualified by public policy
3. The categories and their selection rules
1. Substance or procedure
2. Choice of law for substantive issues
4. Summary
CHAPTER 27. ENFORCEMENT OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS OUTSIDE THE EUROPEAN REGIMES
1. Foreign judgments
Application of merger and issue estoppel
Competing foreign judgments
Recognition and enforcement
2. Arbitral awards
As between parts of the United Kingdom
Awards made outside the United Kingdom
CHAPTER 28. JUDGMENTS AND SETTLEMENTS WITHIN A EUROPEAN JUDGMENTS REGIME
1. The general pattern
Judgments
The link between recognition and enforcement
"Authentic instruments" and court settlements
2. Judgments within the regimes
"Civil or commercial matters"
Connection with a member State
Types of judgments
3. The jurisdiction of the recognising or enforcing court
4. Grounds of non-recognition or non-enforcement
1. Relevance of jurisdiction of adjudicating court
2. Grounds other than jurisdiction of the adjudicating court
5. The recognition and enforcement process
1. Recognition
2. Enforcement
6. Appeals against recognition or enforcement decision
1. Measures of enforcement during period for appeal
2. Stay of recognition or enforcement appeal proceedings pending appeal in state of origin
3. Appeal against declaration of enforceability
4. Appeal against refusal of enforcement
5. Further appeal
APPENDICES
APPENDIX 1. STATUTES
Administration of Justice Act 1956, sections 45-50 (as amended)
Supreme Court Act 1981, sections 20-24 (as amended)
Civil Jurisdiction and Judgments Act 1982
Contracts (Applicable Law) Act 1990
APPENDIX 2. COUNCIL REGULATION (EC) NO 44/2001 OF 22 DECEMBER 2000
APPENDIX 3. THE CIVIL JURISDICTION AND JUDGMENTS ORDER 2001 NO 3929
Admiralty Claims Practice Direction
APPENDIX 4. CONVENTIONS
International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships, Brussels, 10 May 1952
International Convention on Certain Rules Concerning Civil Jurisdiction in Matters of Collision, Brussels, 10 May 1952
International Convention on Maritime Liens and Mortgages 1993
Index
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