Transcript
The admiralty jurisdiction has a long and ancient history dating back to fourteenth century England.Its traditions are still very much evident in the Federal Court where the oar mace takes pride of place.
The mace is a symbol of authority derived from those used in English battles eight hundred years ago.
This video is designed to assist each Admiralty Marshal of the Court to understand the basics of the jurisdiction and what is involved in the arrest of a vessel. You are also urged to read the Marshal’s Manual for a more comprehensive explanation of your role and functions.
Proceedings under the Admiralty Act are commenced either as an action in rem or an action in personam
An action in rem is one against a vessel, cargo or other property while an action in personam is a proceeding brought against a person or organisation.
A vessel, cargo or property may be arrested for a range of reasons but the most common reasons are claims for debt or damages, owed by the relevant person, to the claimant.
The debt might relate to goods or services supplied to the ship such as stevedoring , fuel, equipment and stores, repairs and maintenance, or the non-payment of crew wages.
Sometimes a surrogate vessel - with the same owner as the vessel in respect of which the claim arose - can be arrested.
The Federal Court of Australia Act empowers the Registrar to appoint admiralty marshals.
The marshal is responsible for executing warrants of arrest that have been issued by the Court under Admiralty proceedings. In some cases the Marshal will also be responsible for the sale of vessels and property that are subject to claims under the Admiralty Act.
The functions and obligations of the Marshal include:
Executing arrest warrants;
Taking steps to retain safe custody and preservation of the vessel;
Arranging for a vessel to be moved from one berth to another because of the operational requirements of the port operators or through an application by one of the parties.
Facilitating the release of the vessel or property following an order by the court or registrar; and
Arranging the valuation and sale of the vessel pursuant to a court order.
You will usually receive a phone call from a practitioner, acting on behalf of the plaintiff, telling you of a vessel’s expected arrival and of the intention to have it arrested. The practitioner will subsequently file a writ, an application and a supporting affidavit that will state the vessel is not subject to any outstanding caveats against arrest.
Before the arrest you should ask the practitioner who is acting on the plaintiff’s behalf to deposit with the Court funds on account of Marshal’s fees and expenses incurred as a consequence of the arrest. This is usually between one and five thousand dollars.
You should inform the following officials of the impending arrest and ask them not to provide any clearance facilities for the vessel’s departure:
The manager of marine operations or harbour master;
The Port Authority Collector of Customs; and Water Police.
The Australian Maritime and Safety Authority and the Operations Centre of the Office of Transport Security should also be kept informed.
You may ask the Water or other police to accompany you on the arrest if there are concerns for your personal safety.
A copy of the arrest warrant should be supplied to each official as soon as possible.
When you arrive at the port you will have to show your Marshal ID and pass through security. Once you board the vessel you should seek out the Captain – or most senior person on board – and inform that person that pursuant to an Order of the Court you are arresting the vessel.
You must give the person a copy of the writ and the warrant and affix copies of both these documents to a prominent position on the bridge. It is this action that “executes” the arrest and a careful note should be made of the time this is done.
After the arrest has been executed you should brief the Captain on the effects of the arrest and provide him with your contact details.
If the vessel is in port, you might also place a sign at the head of the gangway stating the vessel is under arrest.
Once a vessel has been arrested it is in the custody - but not the possession - of the Marshal and access to the vessel is controlled by that person. The Captain remains responsible for such matters as maritime transport security.
People who would normally need to access the vessel are generally not stopped from going aboard. These may include;
- The ship’s agents and owner’s representatives;
- The master and crew;
- Maintenance and stores contractors;
- The Harbour Master and Habour Master’s personnel;
- Stevedoring crews; and
- Customs officers.
The Court’s Director, Public Information, should be briefed about all Admiralty arrests in case of media enquiries.
The loading of some types of cargo should cease once a vessel has been arrested.
This is particularly important if cargo operations involve:
The loading of livestock
The loading of hazardous or dangerous materials.
Where a party or interested party may make an application to the Court, and in some cases to the Marshal, regarding the loading or unloading of cargo.
On most occasions the vessel will be released following resolution of the dispute and pursuant to an order for release by a registrar or judge.
However, the Marshal may still refuse to release the vessel if satisfactory arrangements have not been made to cover the Marshal’s fees and expenses in relation to the arrest.
When the vessel is released the warrant must be removed and all parties involved notified in writing the arrest is no longer in effect.
Other outcomes, such as the sale of the vessel, are dealt with in your manual. If you are in any doubt about any aspect of your role, you should seek guidance from your district registrar. During the course of a proceeding the Marshal is at liberty to seek directions from the Court or a Judge at any time.
http://www.fedcourt.gov.au/law-and-practice/areas-of-law/admiralty/jurisdiction/marshals_manual/admiralty-marshal-video-transcript
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