Malaysian maritime law provides for a civil arrest of a ship for a maritime claim through the court mechanism when the ship is found in Malaysian territorial waters. The arrest serves two purposes, first, to provide prejudgment security to the claimant in the action and second, to establish jurisdiction over the defendant ship owner as if he is present in Malaysia to defend the action brought.
In the exercise of admiralty jurisdiction and arrest of ships, the Malaysian High Court adopts and applies the United Kingdom Supreme Court Act 1981 which in turn gives effect to the International Convention on the Arrest of Sea-going Ships 1952.
For most types of maritime claims (except maritime liens), it is crucial on the date the action is brought, the ship selected for arrest is in the same ownership of the ship owner answerable for the claim. A claimant’s right to arrest becomes lost when that ship has undergone a valid change of ownership.
The following types of maritime claims carry the right to arrest the ship in connection with which the claim arose or alternatively a sister ship which under the same ownership.
• Possession, ownership, employment or earnings of a ship; • Mortgages and charges; • Damage received or done by a ship; • Loss of life and personal injuries; • Loss or damage to goods; • Claims under carriage agreements; • Salvage; • Pilotage and towage; • Master and crew wages; • Goods and materials supplied • Master, shipper, charterer or agent's disbursements; • General Average claims.
A ship can be arrested even if anchored outside port limits so long as the ship, at the time of arrest, lies within Malaysian territorial waters. Salvage, collisions and wages claims are considered maritime liens where the offending vessel can be subject of an arrest regardless of who owns the ship at the time of arrest.
The arrested vessel may be released, usually within a working day, upon furnishing acceptable alternative security for the claim either through a Malaysian bank guarantee, a letter of undertaking from a reputable P & I Club, bail bond or otherwise payment of the sum in court. Counter security against the arresting party is not required except in cases of contributory negligence such as collision damage claims or similar situations.
Malaysian courts award damages for wrongful arrest. Clients are therefore advised, in each and every case, to obtain specific legal advice on whether a particular ship may be arrested to enforce their claim.
The Firm, since 1990 and consistently each year, is involved in the largest number of admiralty actions and ship arrests.
email@example.com Tel +603 5891 1111 Fax +603 5633 1103 The information herein is for general guidance only, may have been superseded, circumstances may have changed and should not be relied upon for action. This does not in any way represent or replace professional legal advice which in each and every case must be obtained.