Ship arrest in Oman

In maritime law, ship arrest in some respect comes under the head of maritime liens. Globally, the provisions for ship arrest are contained in the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ship of 1952. The Convention is recognized and enforceable in the 71 countries of the world. Besides, there are 19 countries as signatories. Basically, the Convention emphasis on the type of maritime claims, a ship can be arrested for. In particular, it only recognizes the ship arrest as legitimate if the same is in conformity with the Convention. Parallel to that it also highlights a comprehensive procedure with respect to the release of arrested ship. Later, the Convention was revised in the International Convention on Maritime Liens and Mortgages, 1993. More recently, the International Convention on Arrest of Ships, 1999 was concluded which came into force in September 2011. However, as of January 2015, only the eleven countries ratified the Convention 1999, with the four as signatories.

The Sultanate of Oman, interestingly, has not ratified to any of the conventions mentioned above for the arrest of ships. Instead, Oman regulates the law of arresting the ships in its own conservatory style. In particular, the Oman’s Maritime Law, Royal Decree 35/81(the law), article 188, recognizes the sixteen situations as ‘maritime debt’. Under those situations a ship can be arrested, once it is in the Omani territorial waters irrespective of the flag it carriers. An arrest of the ship is also possible in Oman, even the substantive case has taken place abroad. However, it is unlikely that the courts in Oman accept jurisdiction over the substantive claim, where the parties are in agreement to submit to the jurisdiction of any foreign court. On the other hand, practically, there is no difference between the maritime lien and the maritime claim under the law; however, the provisions regarding the maritime liens are specified under article 156.

Procedurally, an arrest application must be filed in the Court of the First Instance in Oman. The application to be made with all the supporting documents. Notably, the foreign official documents need to be legalized. Similarly, for a local lawyer to lead the proceeding, an authentic Power of Attorney must be made. For that the process may include: (1) in the country of origin – notarization of the document; (2) in the country of origin – legalization of the document by the ministry of foreign affairs; (3) in the country of origin – the endorsement by the Embassy of Oman; and (4) in Oman – the legalization by the Ministry of Foreign Affairs of Oman. The countries without the Embassy of Oman may contact the consular representative of any Gulf Cooperation Council or Arab League state. Importantly, all the foreign official documents and the supporting documents other than in Arabic must be translated in Arabic by sworn translator in Oman to confirm its authenticity prior to its submission in the Court.

For a successful application for a ship to be arrested, claimant must prove the exact location and berthing of the ship; the full details with respect to the debt; and it also must be proved that the act can be considered as ‘maritime debt’ under the Omani law. It is pertinent to mention that the law is quite on the issue whether the claimant has to furnish any security for the damages, if the arrest goes wrongful. Once the application is evaluated and deduced in favour of the claimant, the arrest order is furnished usually ex-parte, by the Court. Hence, the order can be made promptly; after that, the copy of the order is delivered to the master of the ship, or anyone responsible on his behalf. Normally, a ship can be arrested within 48 to 72 hours.

In response, the party effected may struck out the arrest order by way of filing the grievance application to the Court within the seven days of the order. After properly assessing the grievance application; the Court may lift the arrest order if it deems fit. In comparison, regarding the liability on the wrongful arrest of ship, till now there is no legal precedent to avail in Oman. Alternatively, a civil suit can be filed against the wrongful arrest; proving the losses sustained from that arrest and the mala fide intention of the claimant.

By contrast, should the grievance application be rejected; the order to arrest any ship can only be lifted by way of furnishing the guarantee or bail. That security can be furnished by the debtor or anyone else on his behalf; provided that the Court is satisfied with that security. Moreover, the security deposited, needs to be equivalent to the amount mentioned in the arrest order. Usually, the most common form of security is the bank guarantee. Notably, lifting the Court’s order shall not take place, if the ship is arrested over the dispute of its ownership; or over the profits which are claimed on the usage of that ship, article 192.

Finally, the Court may order the sale of the ship. For that a ‘wide circulation’ to be published in the newspapers. In addition to that all the conditions of the sale to be mentioned in the Shipping Register. Importantly, there should be a gap of 15 days between the publication of the sale, and the order to be made for the sale of the ship. Throughout the proceeding, the claimant has to be patient for at least eight months, from submitting the application for arrest of the ship to the disposition of the same. Only in the rare circumstance a ship can be sold, pending the lawsuit in the Court. For example, that can be allowed if there is a risk of rapid deterioration and that the ship can be harmful for the third parties.

Resources:

1.       The Maritime Law, Royal Decree 35/81  

2.       United Nations 1952 International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships of 10 May 1952 Brussels 439 UNTS 193 / UKTS 47 (1960) Cmnd 1128 <http://cil.nus.edu.sg/1952/1952-international-convention-for-the-unification-of-certain-rules-relating-to-the-arrest-of-sea-going-ships> accessed 31 January 2015

3.       United Nations / International Maritime Organization Conference Of Plenipotentiaries On A Convention On Maritime Liens And Mortgages from 19 April to 6 May 1993 International Convention on Maritime Liens and Mortgages, 1993 AlCONF 16217 <http://unctad.org/en/PublicationsLibrary/aconf162d7_en.pdf> accessed 1 February 2015

4.       United Nations International Convention On Arrest Of Ships, 1999 of 12 March 1999 CN 112 211 <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XII-8&chapter=12&lang=en>  accessed 31 January 2015

5.       Zeina Wakim, ‘Ship Arrest in Oman’ (Q&A) Al Tamimi & Company

6.       TheMaritimeAdvocate.com, ‘Precautionary Restraint in Oman’ <http://www.maritimeadvocate.com/ship_arrest/precautionary_restraint_in_oman.htm> accessed 1 February 2015

7.       PK Mukharjee, An Introduction to Maritime Law (World Maritime University, Malmo Sweden)