Analysis: Seven steps to a successful ship arrest in Scotland
A successful ship arrest in Scotland requires consideration of various key factors coming together and an element of good timing. When an instruction to arrest is received, moving quickly is often important, but should never be at the cost of accuracy, write Duncan MacLean and Sarah Polson.
The initial steps for a successful ship arrest are:
Step 1: Confirm the identity of all parties involved and the owners of the vessel you are seeking to arrest. Consider the grounds and basis for seeking security for the claim, and obtain evidence to support this, i.e., transcript of registry of vessel, invoice documentation and demands for payment.
Step 2: Check the location or intended destination of the vessel you are seeking to arrest. Sheriff Officers/Messengers-at-Arms will have to attend there to execute the warrant for arrest on the vessel itself to put the arrestment in place. Monitor the location of the vessel throughout in case it moves.
Step 3: Consider the value of the claim and where the action will be raised, i.e., local sheriff court or Court of Session. The minimum limit for the Court of Session is £100,000 and Sheriff Courts have unlimited financial jurisdiction. The Court of Session is available for urgent applications out of hours. Sheriff Courts are not.
Step 4: Once steps 1-3 have been completed and the risks for the arresting creditor of wrongful arrest have been discussed and understood, prepare detailed pleadings and supporting documentation to apply to the court for a warrant to arrest. This is generally without intimation to the debtor, although subject to the court’s dispensation on application. On receipt the court will fix a time to hear ex parte submissions as to why the statutory grounds and evidence justify the court granting the warrant to arrest. The court will then fix a future hearing to allow the debtor to be heard on whether the arrestment when executed should remain in force.
Step 5: Instruct Sheriff Officers/Messengers-at-Arms to execute the warrant. An arrestment is not valid until formally served on the vessel. This is often colloquially referred to as ‘putting a writ on the mast’. Once the vessel is arrested, it is a breach of the court order to move the vessel other than in an emergency for safety reasons. The arrest is also served for information on any harbour master within whose jurisdiction the vessel has been arrested. Application may be made to the court to move the vessel for operational reasons – e.g. to free a berth if it is causing a blockage in a harbour. It is possible, though rare, to include pleadings to justify an application to the court for a warrant to dismantle a part of the engine, which may prevent movement of the vessel under her own power.
Step 6: Give notification of the hearing as to whether or not the arrestment should remain in place, and then serve the court papers on the defender/owner within 21 days to prevent the arrestment falling.
Step 7: Prepare and attend the hearing on whether or not, if the defender applies for recall, the arrestment should remain in place. From the point of view of the arresting creditor, the earlier preparatory steps taken in order to successfully make the application for the warrant to arrest should also be of assistance at this hearing in resisting an application by the debtor that there are grounds for the arrest to be recalled.
For more information on ship arrest in Scotland, download our handy guide, which sets out what you need to know about how it works in Scotland, including the types of arrest, the criteria that have to be met and the steps involved to make a successful ship arrest.