Philip
Ship Arrest and the Malaysian Admiralty Court
Philip Teoh 20 Aug 2018

Ship Arrest and the Malaysian Admiralty Court

Maritime cases often involve issues of international law. The carriage of goods across nations separated by sea is often done by shipping lines of various nationalities. For instance, goods exported from Korea to Malaysia may be carried by a Japanese shipping line. Issues of international law abound when the sales contract apply Korean law and the bill of lading apply Japanese law. When the ship collides with a Russian ship in the Straits of Malacca and the parties are called upon to provide a General Average bond, what is the importer to do? Who is he to claim from?

Welcome to the realm of maritime law and conflict of laws. This is a realm maritime lawyers are familiar with. It is crucially important that the Judge/Arbiter is able to understand the legal and technical issues involved in these maritime cases. In Malaysia, the importance of having a specialist Admiralty Court (“Court”) gained impetus from the needs of the industry and this culminated with the setting up of the Court in October 2010. 

A common order issued by the Court is the Warrant of Arrest (“Warrant”). This Warrant once executed on the vessel will prevent the vessel from leaving the Court’s jurisdiction. It is a powerful remedy which can result in quick settlement or the sale of the arrested vessel. 

The Malaysian Court is based in Kuala Lumpur and operates as a specialist court within the Commercial Division of the Kuala Lumpur High Court. Since its inception in October 2010, the establishment of the Court quickly became an important support to the growth of the maritime sector in Malaysia. The Malaysian Judiciary recognized the importance and utility of specialist courts to support the specialist sectors and the Court has since its inception rapidly became an important adjunct to spurring the growth of the maritime sector in Malaysia.

The industry quickly embraced the Court as a preferred means to resolve shipping disputes, as the Court possessed several important attributes. The appointment of an Admiralty Judge meant that the cases will be heard before a specialist arbiter, who better appreciates the industry and the technical aspects of a shipping claim. The realm of admiralty practice with its in rem procedure and technical aspects is not easily understood by generalist judges, and the industry and shipping lawyers no longer have to delve into the basics of the law every time a shipping case is argued. The establishment of the Court was helped in the large part by the Admiralty Judge Datuk Nallini Pathmanathan, a very capable and astute commercial Judge. Her Ladyship has since November 2014 been elevated to the Court of Appeal. At the moment the Court’s cases are shared by two judges of the Kuala Lumpur High Court. The other attribute that is appreciated by the users of the Court is that the Court operates within a nine-month deadline in which the Court will strive to complete a trial from the date of the filing of the writ. The other apparent benefit of the Court is that there are nominal costs as the only costs parties need to incur are the court filing fees. Thus, the Court offers plenty to litigants – a specialist judge, speed and costs. These benefits were traditionally only found in the realm of arbitration.



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