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ABSTRACT
This study delves into the intricate legal framework governing vessel arrest and release in Bangladesh, with a specific focus on the practical implications concerning limitation periods and maritime claims. The maritime industry plays a pivotal role in Bangladesh’s economy, yet the complexities surrounding vessel arrest and release often pose challenges for stakeholders involved. Through a comprehensive examination of relevant laws, regulations, and case studies, this research elucidates the legal mechanisms underpinning vessel arrest and release procedures. Moreover, it scrutinises the applicability and enforcement of limitation periods in maritime claims, shedding light on the intricacies of pursuing legal remedies within prescribed timeframes. By exploring practical implications, including procedural hurdles and judicial interpretations, this study offers insights into navigating the dynamic landscape of vessel arrest and release in Bangladesh. Ultimately, it aims to provide stakeholders, including shipowners, operators, insurers, and legal practitioners, with a deeper understanding of the legal intricacies and practical considerations inherent in maritime operations within Bangladeshi waters.
Disclosure statement
No potential conflict of interest was reported by the authors.
Notes
1 Section 3(1), the Admiralty Court Act, 2000 (Act No. 43 of 2000) says that the High Court Division shall be a Court of Admiralty.
2 Section 3(2), ibid.
3 Section 3(2) (a-r), ibid.
4 Section 3(1), the Admiralty Court Act 2000 (Act No. 43 of 2000); Topcom Holdings vs. Bangladesh, (2019) ALR (HCD) 86, para-40.
5 Article 101, the Constitution of the People's Republic of Bangladesh, 1972, provides that “the High Court Division of Supreme Court of Bangladesh shall have such jurisdiction as conferred on it by the Constitution and by other the laws”.
6 Section 4(2), ibid, states that ‘In relation to claims mentioned in clauses (a) to (c) and (r)of the sub section 2 of section 3 the Admiralty Jurisdiction of the High Court Division as the Court of Admiralty may be exercised through action in rem against the ship or property in question’.
7 Action in Personam Law and Legal Definition.
8 Section 3(2)(g), The Admiralty Court Act 2000 (Act No. 43 of 2000); Global Traders vs. MV Guijiang VI & Others (2005) 57 DLR 89.
9 Section 3(2)(h), ibid.
10 Section 3(2)(i), ibid.
11 Section 3(2) (j), ibid.
12 Section 3(2)(k), ibid.
13 Section 3(2) (l), ibid.
14 Section 2(3)(m), ibid.
15 Section 3(2)(n)), ibid.
16 Section 3(2)(o), ibid.
17 Section 3(2)(q), ibid.
18 Section 4(1) ibid, says ‘Subject to the provisions of Section 5, the admiralty jurisdiction of the High Court Division may in all cases be exercised in personam’.
19 Section 5, ibid.
20 Section 3(a) to (c) & (r), ibid.
21 Section 4(2) & (3) ibid.
22 Section 6, ibid.
23 Section 3 (d) – (q), ibid.
24 PNN Shipping Lines Ltd vs Cargo onboard the vessel MV TVISHA and others (Admiralty Suit No.48 of 2020).
25 Section 7, (n-1).
26 Chorley & Giles’ Shipping Law, Citation1987, 7.
27 Rule-4, Admiralty Rules, 1912; Multi cargo Limited vs Ponl Barcelona and others (2005) 2 LG 305.
28 Section 3(2), Act of 2000.
29 Rule-18, Admiralty Rules, 1912 defines Release.
30 Rules 23, The Admiralty Rules, 1912.
31 Marine Oil Broking Company Pte Ltd vs MV Daizu Maru and others (2002) 31 CLC HCD.
32 SM Monirul Islam vs. MV You Bang, 51 DLR (AD) 90; 19 BLD (AD) 91.
33 Professor Yvonne Baatz (Citation2011, 554).
34 Rules 35, The Admiralty rules, 1912.
35 Section 38, (n.28).
36 Bangladesh Maritime Carriers vs. Jamuna Oil Ltd and Others, 2019 (2) 16 ALR (HCD) 313, para-12.
37 Rule 25–30, Admiralty Rules, 1912.
38 Rule- 46, Admiralty Rules, 1912.
39 Tetly (Citation1999, 1898).
40 Messon (Citation1993, 118).
41 Jackson (Citation2005, 257).
42 Ibid. Section-2.
43 Ibid.
44 Ibid.
45 The Admiralty Rules 1912. Hereinafter referred to as ‘The 1992 Rules’.
46 Ibid. Rule-4.
47 Ibid. Rule 5(b) provides, “no warrants for the arrest shall be issued, if the party or its agent doesn't file an affidavit which shall contain the name and description of the party at whose instance the warrant would be issued, as well as the nature of claim or counter-claim, the name and nature of the property to be arrested.”
48 Ibid.
49 Ibid. Rule-4.
50 The Ship arrested.com Network (Citation2018, 29).
51 The Chittagong Port Authority vs. M.V. X-PRESS SUEZ (Admiralty Suit No. 52 of 2017).
52 PNN Shipping Lines Ltd vs. the cargo onboard the vessel MV TVISHA and others ( n.24).
53 Ibid. Rule-18.
54 Ibid. Rule- 23.
55 Southern Solar Power vs. BPDP (2019) 16 ALR (HCD) pp. 62–66.
56 Marine Oil Broking Company Pte Ltd vs MV Daizu Maru and others (2002) 31 CLC HCD.
57 SM Monirul Islam vs. MV You Bang, 51 DLR (AD) 90; 19 BLD (AD) 91.
58 Ibid. Rules- 23 and 31, (n-7).
59 IG Navigation Ltd vs. M.V. GO SKAR and Others, Admiralty Suit No. 02 of 2016.
60 Ibid.
61 The Government of People's Republic of Bangladesh vs. M.V. SVITZER and others, Admiralty Suit No. 41 of 2020.
62 Altrium Maritime SA of Marshall Island vs BNS Prottoy and others, Admiralty Suit No. 37 of 2017.
63 Article 3 of the convention provided for provision of arrest of sister ships.
64 (1986) BLD 119.
65 Ibid.
66 Section 21 (4) of the Supreme Court Act, 1981.
67 Eastern Insurance Co. Ltd vs D.B. Deniz Nakliyati T.A.B and others, 14 BLD (AD) 1994 para.3.
68 H.R.C Shipping Limited vs. M.V Lady Fatema and others, 15 MLR (2010) (AD) 113-The plaintiff applied for the arrest of 'MV Lady Fatima' and 'MV Dali' at Chittagong Port, Chittagong, before the High Court Division, arguing that the plaintiff is a company and is the owner of a range of seagoing vessels and carriers operating in containers by sea, including laden and empty containers. The High Court Division consented to the time within which the complaint must be duly lodged with reference to Article III, Rule 6 of the COGBSA Schedule, stating clearly that unless a complaint is lodged within one year of the delivery of the goods or the date on which the goods should have been delivered, the carrier and the ship shall be released from all liability for damage or loss.
69 Serial no. 30 of the First Schedule of the Limitation Act, 1908 (Act no. IX of 1908).
70 Serial no. 31 of the First Schedule of the Limitation Act, 1908 (Act no. IX of 1908).
71 Section 219 of the Bangladesh Merchant Shipping Ordinance, 1983 (Ordinance NO. XXVI OF 1983 ) states that “where in any proceeding before a Court a decree or order has been passed against any seaman while he was a serving seaman, the seaman or if he dies while he is a serving seaman, his legal representatives, may apply to the Court to have the decree or order set aside” and, as per sub section 2 of the said section 219, the period of limitation for an application shall be sixty days from the date on which the seaman first ceases to be a serving seaman after the passing of the decree or order.
72 In computing the period of limitation provided in section 219 or in the Limitation Act, 1908 (IX of 1908), the provisions as laid down in section 220 of the Bangladesh Merchant Shipping Ordinance, 1983 (Ordinance NO. XXVI OF 1983) shall be considered.
73 Serial no. 86(b).
74 Article III (6) of Schedule of the Carriage of Goods by Sea Act, 1925 (Act no. XXVI of 1925); See also, Eximpo Trading Ltd. Vs. M.V. Banglar Kakoli, 61 DLR (HCD) (2009) 463; See also, Dada Ltd. Vs. R.S.N. Company Ltd., 10 DLR (HCD) (1958) 242; River Steam Navigation Co. Ltd. & India General Navigation and Rly Co. Ltd. Vs. Messers Dada Ltd., reported in 11 DLR 520, a division bench of the Dhaka High Court constituted by their lordship Amin Ahmed CJ and Chakarabarti J affirmed the judgment reported in 10 DLR (HCD) 242 treating the dispute in the same context.
75 Ibid.
76 Serial no. 30 of the First Schedule of the Limitation Act, 1908 (Act no. IX of 1908).
77 Serial no.31, ibid.
78 Section 219 of the Bangladesh Merchant Shipping Ordinance, 1983 (Ordinance NO. XXVI OF 1983 ) states that “where in any proceeding before a Court a decree or order has been passed against any seaman while he was a serving seaman, the seaman or if he dies while he is a serving seaman, his legal representatives, may apply to the Court to have the decree or order set aside” and, as per sub section 2 of the said section 219, the period of limitation for an application shall be sixty days from the date on which the seaman first ceases to be a serving seaman after the passing of the decree or order.
79 In computing the period of limitation provided in section 219 or in the Limitation Act, 1908 (IX of 1908), the provisions as laid down in section 220 of the Bangladesh Merchant Shipping Ordinance, 1983 (Ordinance NO. XXVI OF 1983) shall be considered.
80 Serial no. 86(b), (n-26).
81 Article III (6) of Schedule of the Carriage of Goods by Sea Act, 1925 (Act no. XXVI of 1925).
82 Eximpo Trading Ltd. Vs. M.V. Banglar Kakoli, 61 DLR (HCD) (2009) 463.
83 Dada Ltd. Vs. R.S.N. Company Ltd. (n.74) – This is a suit for realization of compensation for non-delivery of good which was carried from the Port of Chittagong to Khulna Port by an Inland Vessel. It was contended on behalf of the defendant of that suit that article 30 and 31 of Limitation Act 1908 was applicable which barred the filing of suit beyond one year from the date of delivery or from the date when the delivery was ought to be made. That dispute being a dispute upon inland carriage of good the municipal law was applicable and as such his lordship justice Asir decided the dispute on the context of the Limitation Act. In the case of River Steam Navigation Co. Ltd. & India General Navigation and Rly Co. Ltd. Vs. Messers Dada Ltd. (n. 74) 520, a division bench of the Dhaka High Court constituted by their lordship Amin Ahmed CJ and Chakarabarti J affirmed the judgment reported in 10 DLR (HCD) 242 treating the dispute in the same context.
84 Pent Marine Services Ltd vs Niko Resources (Bangladesh) Ltd & others,16 MLR (HCD) (2011) 415.
85 Hare (Citation1999, 77).
86 Lynn (Citation2000–Citation2001, 456).
Additional information
Notes on contributors
Jannatul Shareat Disha
Jannatul Shareat Disha, PhD Scholar, Zhongnan University of Economics and Law (ZUEL), China.
Muhammad Zeeshan Ajmal
Muhammad Zeeshan Ajmal, PhD Scholar, Zhongnan University of Economics and Law (ZUEL), China and Lecturer, School of Law and Policy, University of Management and Technology, Pakistan.