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The Arrest Conventions: International Enforcement of Maritime Claims. Edited by Paul Myburgh. [Oxford: Hart Publishing, 2019. xlvi + 337 pp. Hardback £95.00. ISBN 978-1-50992-830-9.]

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The Arrest Conventions: International Enforcement of Maritime Claims. Edited by Paul Myburgh. [Oxford: Hart Publishing, 2019. xlvi + 337 pp. Hardback £95.00. ISBN 978-1-50992-830-9.]

Published online by Cambridge University Press:  23 July 2020

Andrew Tettenborn*
Affiliation:
Swansea University

Abstract

Type
Book Reviews
Copyright
Copyright © Cambridge Law Journal and Contributors 2020

A student reading up on the English law of ship arrest could be forgiven for thinking that, however transnational the subject in theory, the English approach to it was astonishingly parochial. References in books on the Admiralty in rem procedure are overwhelmingly to venerable decisions of the High Court of Admiralty and its later metamorphoses the Probate Division and Admiralty Court, coupled today with a fairly brief five sections of the Senior Courts Act 1981 setting out the heads of Admiralty jurisdiction. Yet behind the scenes there has grown up a large edifice of transnational law and international conventions. The 1952 Convention on the Arrest of Sea-going Ships (to which the UK is a party) and the later less successful 1999 International Convention on Arrest of Ships (to which it is not) loom large. Indeed, the former occasionally makes an appearance in English litigation because of its relevance to the EU Brussels I Recast jurisdictional rules which exempt existing Convention regimes from their effect. But there are also regimes of less direct, albeit important, relevance, such as instruments concerned with the transborder effects of insolvency law, and for that matter the United Nations Convention for the Law of the Sea. In addition, national laws vary, with some other countries choosing either to follow the scheme of a Convention without actually signing it (e.g. China) or simply to pick and mix without committing to anything (Australia and South Africa). And, as if this was not enough, there remain fundamental issues of conflict between the common law and civil law views of the nature of ship arrest.

Hence this book, the product of a 2018 conference held in Singapore dealing with the international and conventional substratum of arrest law, which analyses the Convention regimes from a number of points of view and from the vantage point of a large number of jurisdictions; indeed, three of its most useful chapters are 10–12, describing how the conventions have slotted into numerous civil and common law jurisdictions, including continental Europe and China. It is highly welcome. Not only is the study of the arrest conventions relevant practically, especially in civil law jurisdictions, some of which, such as the Netherlands, simply regard an arrest convention as directly applicable without any local enactment at all. More to the point, the conventions are well worth studying as an intellectual exercise for the light they throw on the different common law and civilian views of arrest and attempts to synthesise them, not to mention specific issues of principle, procedural fairness and insolvency law that ship arrest regularly throws up.

There is something here for everybody; moreover, the arguments advanced are overwhelmingly of a uniformly high standard, carefully constructed and well-expressed. Graham Bradfield, for example, nicely takes apart the problems raised by modern corporate structures in connection with sister-ship arrest, at the same time analysing his native South Africa's unique and progressive approach to them. Australia's Kate Lewins discusses another issue that has spawned a number of approaches, namely, the problem of how many bites at the cherry a maritime claimant can have and how far he can arrest one or more ships repeatedly in respect of the same claim. From fellow Australians Anton Trichardt and Justice Rares (the latter of whom manages to act as a magnet for large numbers of interesting antipodean Admiralty cases) we have discussion of jurisdiction in a wide sense: in the one case the possibility of arresting in one place and suing – or arbitrating – somewhere else, and in the other a close look at the cases where an arresting court can actually refuse to hear the substantive claim. From the home base of Singapore, Paul Myburgh casts a quizzical eye over the private international law side of arrest, particularly but not exclusively the Halcyon Isle / Sam Hawk problem of claims such as bunker bills giving maritime liens in one place but not elsewhere, and calls – your reviewer suspects quixotically – for some kind of international unification. The excellent Belinda Ang, from the Singapore bench, deals professionally and straightforwardly with another post-1952 problem: namely, how the automatic security provided against an insolvent defendant's creditors by arrest at common law can and should be reconciled with the newer tendency to universalism in insolvency law and the UNCITRAL Model Law on the subject. Toh Sing and Nathaniel Lin, also from Singapore, discuss liability for wrongful arrest, concluding – contrarily, but in this writer's view correctly – that the restrictive view in The Alkyon [2018] EWCA Civ 2760 is indeed justifiable. The substantive work is rounded off by Michael Tsimplis on arrest for environmental sins, and a plea from Rhidian Thomas to make arrest more difficult, or at least allow the court a discretion to deny it to footling or undeserving claimants. In the final chapter, “The Future of Ship Arrest”, Martin Davies winds up with a suggestion that much of the law of arrest as we know it is here to stay. This may be the mark of a brave man. On at least one view arrest may well be in decline, on the basis that insurers and P&I interests now handle a good many traditional in rem claims, for instance, collision or cargo claims, leaving arrests largely practised by mortgagees, bunker suppliers and charterparty claimants. But the answer to this we will have to see.

In short, this is an extremely worthwhile book. It is thoroughly recommended to any shipping lawyer, especially a parochial English one, who wishes to broaden their knowledge while sharing a highly enjoyable read, and to any comparative lawyer wishing to expand their knowledge of an otherwise esoteric branch of the law. Buy it while you can. Then tell your library to do likewise.