UK Law and Practice Contributed by: Quentin Bargate and Elliot Bishop, Bargate Murray
5.4 Unpaid Bunkers England does not recognise a maritime lien for the supply of bunkers/necessaries. A bunker supplier may, however, have a statutory right in rem for “goods or materials supplied to a ship for her operation or maintenance” under the Senior Courts Act 1981, pro - vided the statutory ownership requirements are met. In practical terms, where bunkers are ordered by and supplied on the credit of a time charterer (not being a demise charterer), the supplier will usually have con - tractual recourse against the charterer but will often be unable to arrest the ship in rem, because the owner is not the relevant person liable in personam. The posi - tion can differ where the bunkers are ordered by the owner or a demise charterer, or where the charterer is in fact a demise charterer. Whether the claimant is the contractual supplier or the physical supplier may matter to entitlement and quantum, because privity and chain-contract issues can affect who has a claim. 5.5 Arresting a Vessel To arrest a vessel in England and Wales, the claim - ant must issue an Admiralty claim form in rem and apply (usually without notice) for the issue of a warrant of arrest. The application is supported by a witness statement/affidavit verifying the claim, the grounds for arrest and the relevant ownership/beneficial owner - ship facts. The claimant must also provide an under - taking to the Admiralty Marshal for the Marshal’s fees and expenses, and arrange service/execution. The court will generally accept copies of supporting documents at the arrest stage, but reliable evidence of authority and ownership is important. Documents in a foreign language should be accompanied by a certi - fied translation. The court does not typically require the arresting party to provide security for damages as a condition of arrest, but the claimant is exposed to potential costs consequences and (in the rare case of wrongful arrest meeting the high threshold) damages. 5.6 Arresting Bunkers and Freight The Admiralty Court’s in rem jurisdiction extends beyond ships and can include other property such as cargo, and proceedings can be brought to enforce certain claims against freight as property of the person
liable, depending on the statutory basis and factual ownership. Arrest of bunkers as separate property is less common in practice, largely because bunkers may be owned by parties other than the shipowner (eg, a charterer) and issues of identification and ownership arise. However, where bunkers or freight are the property of a person liable in personam and the statutory tests are met, the court can make orders aimed at securing the claim. In practice, parties often rely on arrest of the vessel (where available) and/or freezing relief or third-party debt orders as the more straightforward means of obtaining security. 5.7 Sister-Ship Arrest England and Wales permits “sister-ship” arrest, but only on a beneficial ownership basis. In broad terms, where the claimant has a statutory right in rem against a ship in respect of a claim against a particular per - son, the claimant may arrest another ship which, at the time proceedings are commenced, is beneficially owned as respects all the shares by that same person. England does not recognise a broader “associated ship” concept based solely on common control; ben - eficial ownership of all shares (or, for some claims, ownership/demise charter status) is the key test. 5.8 Other Ways of Obtaining Attachment Orders Common alternatives (or complements) to arrest in England and Wales include freezing injunctions ( Mare- va relief) to restrain dissipation of assets, proprietary injunctions, and third-party debt orders. In support of arbitration, the court has powers under Section 44 of the Arbitration Act 1996 (and Section 37 of the Senior Courts Act 1981) to grant interim measures, includ - ing freezing relief, where the statutory requirements are met. Parties also frequently obtain contractual security such as P&I club letters of undertaking (LOUs), bank guarantees or escrow arrangements, and may seek security for costs in appropriate litigation/arbitration circumstances.
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