Marshal's Manual

Chapter 3: Arrest of ship

[3.1] The legal framework

Part VI of the Admiralty Rules set out the rules for the arrest of a ship or other property.

[3.2] The arrest warrant

Usually after an action in rem is commenced, an application supported by an affidavit is made for an arrest warrant to be issued in respect of the ship or property concerned. The application constitutes an undertaking to the Court to pay on demand the costs and expenses incurred by the Marshal in relation to the arrest and while the ship or property is under arrest.

An arrest warrant is issued by a registrar in the District Registry where the documents are filed. Under rule 43 of the Admiralty Rules, the arrest must be made by a Marshal.

Once an arrest warrant is issued, the issuing Registrar should:

• if the ship or other property is close to the registry in which the documents have been filed – contact the Marshal in the registry and provide him or her with the initiating process (writ), warrant, application and affidavit in support
• if the ship or other property is in a remote part of the State or Territory in which the documents have been filed – the Registrar should consider the use of a remote marshal and ask the Marshal in the registry to arrange for a local customs or police officer or other suitable person to be appointed as a Marshal and, where such a customs or police officer or other suitable person is available, forward to that person a copy of the instrument of appointment along with the initiating process (writ), warrant, application and affidavit in support
• if the ship or other property is in a remote part of the State or Territory in which the documents have been filed and it is not possible for a local customs officer or police officer or other suitable person to be appointed as a Marshal – the Registrar should contact the Marshal in the registry and provide him or her with the initiating process (writ), warrant, application and affidavit in support and request that the Marshal make the necessary travel and other arrangements
• if the ship or other property is in a State or Territory other than the one in which the documents have been filed – contact the District Registrar and Marshal in that State or Territory and immediately forward to them the initiating process (writ), warrant, application and affidavit in support (see the Protocol for Interstate Arrests at [2.8] above).

An arrest warrant must not be executed more than six months after it was issued by a registrar (rule 42).

Preparing for arrest

[3.3] Is the vessel a 'ship'?

The vessel must be a 'ship' within the meaning of section 3 of the Admiralty Act. For the purposes of the Act, a ship is a vessel of any kind used or constructed for use in navigation by water, however it is propelled or moved. This includes a barge, a lighter or other floating vessel, a hovercraft, an off-shore industry mobile unit and a vessel that has sunk or is stranded and the remains of such a vessel. A ship does not include a seaplane, inland waterways vessel or a vessel under construction that has not been launched.

[3.4] Notification to Office of Transport Security

Prior to an arrest warrant being executed against a ship that is covered by the maritime transport security regime (see [1.3] and Annexure 1A), the Marshal should inform the Transport Security Coordination Centre (TSCC) of the Office of Transport Security of the impending arrest. The TSCC is a 24 hour point of contact. Its website address is: http://www.infrastructure.gov.au/transport/security/contact.aspx.

[3.5] Notification to Australian Maritime Safety Authority (AMSA)

On 14 August 2002, a Memorandum of Understanding (MOU) between the Court and the Australian Maritime Safety Authority (AMSA) was executed by the Chairman of AMSA, Dr Kenneth Moss and the then Chief Justice, the Hon Michael Black AC.

AMSA's task as an agency of maritime safety is to do its best to ensure ships trading in Australian ports are safe and handled in a safe manner. To accomplish this, AMSA is empowered to cover all aspects of ship safety, including navigational aids, numbers and qualifications of ships' crews and officers, the prevention of collisions, the construction and equipment of ships, cargo handling, emergency procedures, position reporting and pollution control.

AMSA has responsibility for trading ships on interstate and overseas voyages. Intrastate trading ships, most fishing vessels, inland waterway vessels and pleasure craft are the responsibility of the appropriate State/Territory government.

Under the terms of the MOU, AMSA and the Court have agreed that the Marshal and AMSA staff will exchange relevant information during an arrest and subsequent custody of a ship. Arrest notifications are to be provided to AMSA's Rescue Coordination Centre (RCC) Australia. The RCC operates 24hrs a day. A local AMSA manager will contact the Marshal to facilitate ongoing communication. The Marshal should provide their direct contact details when making the initial contact with RCC. Its website address is: http://www.amsa.gov.au/emergency-contacts/index.asp.

In practical terms this means that upon AMSA being informed of the Court's interest in a particular ship within AMSA's jurisdiction, AMSA will:

• check the inspection history of the ship and advise the Marshal accordingly
• advise the Marshal of any specific safety concerns likely to be encountered with the ship
• advise the Marshal of desirable precautions to be taken in connection with any action the Marshal intends.

The Marshal will assist AMSA by:

• providing advice of the Court's interest in a particular ship to AMSA as early as is reasonably possible
• discussing with AMSA the safety implications of any intended action by the Marshal in respect of a ship under arrest
• informing AMSA of any orders that the Court has made or intends making that will prevent AMSA from taking the full range of regulatory actions in respect of a ship that they would be entitled to take were the ship not in the custody of the Court.

AMSA has offices in the states and their contact details are at : http://www.amsa.gov.au/about-amsa/organisational-structure/amsa-offices/index.asp.

[3.6] Ensure sealed documents available

The Marshal should have six sealed copies of:

• the arrest warrant
• the initiating process (writ) and statement of claim (if any)
• the application
• each supporting affidavit.

In addition to the copy to be affixed to the ship or property, a sealed copy of (at least) the warrant and initiating process is to be provided to the person in charge of the ship, the Manager Marine Operations/Harbour Master, Port Authority, Police, Australian Customs Service, AMSA and ship's agent.

Other than the person in charge of the ship, these persons/agencies may be more easily provided with the documents via email. Also, if the supporting affidavit is large, these persons/agencies may be provided a copy of the affidavit without the annexures and attachments. Note however that the person in charge of the ship of the vessel should typically be provided with the complete supporting affidavit.

The arresting Marshal should place a set of all the documents filed at the time (if held) in an envelope addressed to the master of the ship and provided to the master or other person in charge immediately after the ship has been arrested. Where the ship is unattended the envelope should be placed in a waterproof jacket and left on the ship.

Where a sealed copy of the warrant or initiating process is not immediately available (such as where the arrest is to occur at a remote location), subrules 30(4) and 43(2) allow a copy of the sealed documents, transmitted by facsimile transmission, to be used for the purposes of service and arrest.

If the Marshal is not asked to serve the initiating process then he or she should check that these documents have, in fact, been served. This can usually be done by asking the party seeking the arrest of the ship to confirm that the initiating process has been served, and/or by examining the Court file to see whether an affidavit of service has been filed. In any event, it will become obvious to the Marshal when he or she attends the ship or other property to be arrested whether the documents have been served as Admiralty Rule 30(1) provides that the initiating process must be served by securely affixing a sealed copy of the process to a mast, or some other conspicuous part, of the ship (or property, package or container as provided by subrule 30(2)).

If the initiating process has not been served in this way then the arresting Marshal should serve the process so as to comply with subrule 30(1) or 30(2) as is appropriate in the circumstances.

[3.7] Obtain details of location of ship or property

The Marshal should ask the party seeking the arrest of a ship for the following information:

• the ship's name and, if known, port of registration
• the location of the ship or property
• the destination of the ship or property
• the type and size of the ship
• any distinguishing features of the ship;
• the likely nationality of the Master and crew, and whether an interpreter may be needed
• the number of people on board
• whether the people on board are aware that the ship is to be arrested
• a copy of the Lloyds outline of the ship.

While responsibility for this information lies with the party seeking the arrest, the Marshal may also make his or her own enquiries. For example, information on the ship's location may be obtained from:

• maritime websites such as www.marinetraffic.com or www.digital-seas.com
• port authority
• Search and Rescue
• the Australian Maritime Safety Authority (see [3.5] for contact details)
• publications such as the "Lloyd's List".

In the situation where there is very limited information available, another source, if the party is a Charterer, might be the Protection and Indemnity Club (P&I Club).

The Marshal should take care in making enquiries about a ship to be arrested to avoid the possible arrest becoming generally known, especially at the port of call, and thereby providing an opportunity for the other party to try to avoid arrest.

[3.8] Seek money on account of costs and expenses of arrest

An application for an arrest warrant constitutes an undertaking to the Court to pay to the Marshal, on demand, an amount equal to the amount of the costs and expenses of the Marshal in relation to the arrest, including costs and expenses while the ship or other property is under arrest (see rule 41). The undertaking is given by the applicant personally or by the applicant's lawyer.

Before the arrest, in addition to the undertaking, the Marshal may, if it is considered necessary, demand an amount of money as a deposit to discharge his or her duties effectively in relation to the arrest and while the ship or other property is under arrest (see Rule 41(2)). This amount should be based on an estimate of any travel costs (such as air fares) and other expenses which can be foreseen (such as launch hire), including insurance premiums. In most cases it will be reasonable to ask for an amount of $5,000 where the ship to be arrested is a large ship located in a port at a capital city. For large ships located in remote ports the Marshal should consider whether $10,000 to $15,000 is more appropriate. A cheque should be made out to the Federal Court of Australia.

No GST is payable on Marshal's costs and expenses nor on any demand made by the Marshal. When demanding funds pursuant to an undertaking the Marshal should send a letter of demand for the GST exclusive amount. The Court will pay from its funds any GST amount shown on an invoice and claim that amount as an input tax credit. See section [8.4] for an explanation of the GST position.

Despite the failure, for whatever reason, to expeditiously satisfy the demand for a deposit, the Marshal should proceed to execute the arrest warrant without delay, relying on the undertaking.

After the arrest warrant has been executed, the Marshal may make an interim demand under Rule 78(b) for money on account of costs and expenses, whether or not those expenses have been incurred (see Waitemata Stevedoring Services Pty Ltd v The Ship "Rangitata" & Anor [1998] FCA 441 per Lindgren J and see rule 41 generally). There are sample letters of demand on the intranet Admiralty Page.

If the Marshal is in any doubt then Tony Tesoriero, NSW Deputy Registrar (Admiralty and maritime), may be contacted on (02) 9230 8250 or Russell Trott, WA Deputy District Registrar on (08) 9268 7117.

[3.9] The Marshal's Account

The Court's Principal Registry maintains a central account known as 'The Marshal's Account' that is administered by each District Registry. The Australian National Audit Office has adopted the view that this account is not a trust account. When monies are received by the arresting Marshal they will be receipted in the District Registry. The Collector of Public Moneys in that Registry (or otherwise the Marshal) will arrange with the Director, Financial Accounting, Principal Registry to allocate a project code (a four digit numeric code) for that proceeding. Other funds received pursuant to a demand will be credited to that project code and any payments made will be debited to that code.

The Marshal should ensure that a unique project code has been allocated for every proceeding where he or she receives funds for Marshal's costs and expenses.

The Principal Registry will provide a quarterly summary of receipt and payment transactions and project code balances to each District Registry.

Contact the Director, Financial Accounting on (02) 9230 8823 for assistance.

When making payments to be debited against a project code the Marshal should apply the usual government accounting practices and ensure that all of the necessary delegations are obtained.

[3.10] Safety: Arrange police attendance

The Marshal, in conjunction with the DDR or Registry Manager, should review the work, health and safety issues associated with the arrest, particularly:

• size, type and location of the ship
• possible issues with boarding the ship
  • weather conditions
  • time of day/night
• need to anticipate any activities (loading cargo)
• need to anticipate hostility or language difficulties (crew)
• other possible hazards.

The Marshal (other than a delegated law enforcement officer) must ask the police or the water police to accompany him or her on the arrest if there is any risk to the Marshal's personal safety.

If police or water police are unable to assist, the Marshal may proceed with the arrest only if he or she considers it safe to do so. If at any stage of the arrest the Marshal is threatened or physically restricted, he or she should leave the ship and contact the local police immediately. It is an offence for a person to obstruct or hinder a Commonwealth public official in the performance of their duties (see [3.20]).

If police are unavailable and there are safety concerns, consideration may be given to hiring an appropriate number of private security guards. Marshals should be aware that private security guards have limited powers and may not be able to physically hold, detain or arrest any person.

[3.11] Items to take on arrest

The following items should be taken when carrying out an arrest:

• the Marshal's court provided identification card and MSIC
• personal protective gear
• the documents for execution and service:
  • the arrest warrant
  • the initiating process (writ) and statement of claim (if any) if these documents have not already been served
  • the application
  • each supporting affidavit
• a clear plastic sleeve in which the arrest warrant and other documents may be placed
• string and/or stout adhesive tape for attaching the plastic sleeve containing the documents to the mast or other conspicuous part of the ship
• a mobile telephone
• a torch
• a camera to record the condition of the ship or property at the time of the arrest
• a watch
• business cards with the Marshal's details
• a pen and paper for recording what happens.

[3.12] Disclosure of matters affecting safety

Rule 39A deals with disclosure of matters affecting safety. Under this rule, a party seeking to arrest a ship or a party appearing in the proceeding after the execution of the arrest warrant must disclose to the Marshal "any fact or matter that the party is aware of that could affect the safety of the Marshal or any person, or the ship or any other property, in, or in relation to, the arrest or custody of the ship or property".

At the time of filing the arrest documents or prior to the arrest a Registrar or Marshal should make a party aware of the disclosure provisions set out in the Rule either by providing a copy of the rule or advising them of the provision. A copy of Rule 39A for distribution is available on the Court's intranet.

The master of the vessel and the defendant should also be asked to make a similar disclosure (even though no duty exists under the rule). A Registrar or Marshal should provide the defendant with a copy of the Rule and ensure they understand the duty of disclosure under the rule.

[3.13] Arrests at sea

On occasions a Marshal will be asked to arrest a ship at sea within Australian territorial waters. Transport to the ship may be by helicopter or by launch. The Marshal should arrange for the plaintiff's lawyer to provide a letter to the Marshal at the time of filing the arrest documents requesting that:

• the ship be arrested at sea;
• specifying the mode of transport to be used.

If a helicopter is to be used, the Marshal should establish the hourly hire rate and inform the plaintiff's lawyer in writing of the potential cost. The Marshal must confirm that the helicopter can land on the ship with minimal risk to the Marshal.

If a launch is to be used and the Marshal has to climb the pilot's ladder up the side of the ship then safety issues may arise. The Marshal should ensure that he or she has an inflatable life jacket equipped with the necessary alert and distress functions. The Marshal should also have the physical capacity to make the climb and ideally, have completed prior to any field work the required medical assessment and passed the Marshal's rope climb training. If the Marshal has any doubts about their safety then the arrest should be deferred. The Marshal should only undertake the arrest in a safe manner that does not put the safety of the Marshal or any other person at risk.

The Marshal should inform the insurer in writing of the arrangements that have been made where the arrest is to be at sea.

Insurance

[3.14] Insurance for the Marshal

The Marshal has a common law duty to take reasonable care in carrying out his or her statutory duties. Ordinary tort principles suggest that this duty of care extends to third parties who might reasonably and foreseeably be affected by a Marshal's negligent acts or omissions in the course of carrying out his or her statutory duties: Dorset YC v Home Office [1970] AC 1004.

Ordinarily, in the event of any negligent act or omission of the Marshal, the Marshal is covered by a policy of insurance with Comcover, the Australian Government’s self-managed insurance fund.  The Marshal can mitigate against an order for damages being made against them by ensuring they follow proper procedure and exercising their duty to take reasonable care in carrying out their duties.

The Marshal does not organise any other insurance for the vessel and does not at any time during the period of arrest hold commercial insurance for the benefit of any person who has an interest in the arrested property, including cargo.  The Marshal relies on the insurance policies held by the owners and will make enquiries of them prior to the arrest being carried out.  The Marshal should be kept informed of any changes to those policies or lapse of them during the period of the arrest, including with respect to any Hull & Machinery Insurance and/or Protection & Indemnity Insurance cover.  See section [3.15] below for information about the other types of insurance and the parties responsible for organising that insurance.

[3.15] Insurance by interested parties

The obligation to arrange hull insurance (coverage for damage to a ship’s hull and machinery) and protection and indemnity (P&I) insurance (coverage for marine liability risks including for damage to cargo or to the environment) falls on the owner of the vessel.  This insurance cover should already be in place and copies of the relevant policies should be obtained by the Marshal from the owner.

Sometimes the owner of the vessel is not contactable, for example, if the vessel has been abandoned.  In these situations, it can be difficult to ascertain whether the vessel has hull insurance and/or P&I insurance.  What to do in these situations needs to be approached on a case-by-case basis.  It is recommended that the Marshal discuss the issues with the Admiralty Registrar.

The Admiralty and Maritime Practice Note (A&M-1), issued by the Chief Justice on 20 December 2019,  provides:

9. Insurance of Property Arrested Under the Admiralty Act

9.1 The Admiralty Act provides for the arrest of property (including vessels) by the Marshal in actions in rem. The Marshal will obtain indemnity insurance for the period the vessel is in the custody of the Marshal. The cost of that insurance will be an expense incurred by the Marshal payable by the party issuing the writ for the arrest of the vessel. The Court may require that party to undertake to pay the cost of that insurance at the time the writ is issued.

9.2 The Marshal does not at any time during the period of arrest hold commercial insurance for the benefit of any person who has an interest in the arrested property including cargo. Persons with an interest in the arrested property and their lawyers may wish to consider the question of insuring the amount of their interest against consequential risk, including risks occasioned by any movement of the vessel.

This means that the plaintiff and any other parties with an interest in a ship or its cargo will need to make their own insurance arrangements in respect to that interest.

Carrying out the arrest

[3.16] Time for arrest

An arrest warrant may be executed at any time and on any day of the week (Rule 46).

[3.17] Identifying the ship

The Marshal will usually be able to identify the ship to be arrested from its markings. The ship's name is usually painted on the bows and across the stern of the ship. The ship's port of registration is found on the stern of the ship. In some cases, the ship's name will also be shown on a plate located on the port or starboard side of the superstructure. The ship's name can be confirmed by checking the ship's certificates and its log.

[3.18] The arrest

The manner in which an arrest warrant is to be executed is set out in Rule 43.

Subrule 43(1A) provides that the affidavit in support of the application for the arrest warrant and the writ and all annexures and exhibits to the affidavit (unless it is not reasonable to do so) must be served at the same time the arrest warrant is executed. Subrule 43(2) provides that the arrest warrant must be executed, and the affidavit served, in the same way as the initiating process is served.

Rule 30 provides that the initiating process must be served by securely affixing a sealed copy of the process to:

• a mast, or some other conspicuous part, of the ship, or
• (in the case of property that is not, at the time of service, on board a ship) the property or to a package or container containing the property.

In practical terms, an arrest will involve the following steps:

1. The Maritime Transport and Offshore Facilities Security Regulations prohibit unauthorised entry to a port, ship or on-shore security zone. The Marshal will be able to rely on paragraphs 6.05(c) and 7.05(c) of the Regulations to enter a port, ship or on-shore security zone in the course of the Marshal's duties (such as executing an arrest warrant or retaining safe custody of a ship or property under arrest).
   
   In practice, this will mean a Marshal must be able to produce photo identification when required to do so, particularly when not accompanied by a law enforcement officer (such as a member of the police or water police), and be able to explain the reason for entry. In order to enter, remain and work unmonitored within a maritime security zone, the Marshal must display a MSIC (see [3.19]).
   
   If the ship is berthed, contact the port's Manager of Marine Operations/Harbour Master and notify them of the impending arrest to ensure that clearance for the ship to leave the port is not given.
   
   
2. The Marshal should board the ship and introduce himself or herself to the Master or other person in charge (see Seafarer's professions and ranks for information on the roles on board a ship) ("I am a Marshal of the Federal Court here to arrest this ship. Please take me to the Master of the vessel.") and show that person his or her Marshal's identification. If the proceeding is against the ship or other property that is on the ship, the Marshal should securely affix a sealed copy of:

• the initiating process, if necessary; and
• the arrest warrant and supporting affidavit;
  
  to the mast, or some other conspicuous part (such as the windscreen of the wheelhouse), of the ship. It is not sufficient for the documents to be attached to, for example, the hull of the ship.

3. The Marshal should give to the Master or other person in charge a sealed copy of the documents. This is not a legal requirement but one of courtesy – the Marshal should not be concerned if there is nobody on board to be informed or to receive the documents. Usually the documents are put in an envelope addressed to the ship. If the ship is unattended the envelope should be placed in a plastic cover and left on the ship.
   
   
4. If the proceeding is against property that is not, at the time of service, on board the ship, the Marshal should securely affix a sealed copy of:

• the initiating process, if necessary
• the arrest warrant and supporting affidavit
  to the property or to a package or container containing the property.

5. If the Marshal cannot reasonably obtain access to the ship or property to affix the documents, the initiating process, warrant and affidavits may be served and executed by:

Where a sealed copy of the warrant or initiating process is not immediately available (such as where the arrest is to occur at a remote location), rule 30(4) allows a copy of the sealed documents, transmitted by facsimile transmission, to be used for the purposes of service and arrest.

6. Ascertain the identity and contact details of the ship's agent, if any.
   
   
7. Record the condition of the ship (see [4.3]).
   
   
8. If deemed necessary but not typically, appoint the Master as Shipkeeper and obtain an undertaking from the Master (see [4.10]) and, if appropriate, organise to brief the crew members directly.

Annexure 3 sets out an arrest checklist that should be completed by the arresting Marshal.

[3.19] Maritime Security Identification Card (MSIC)

Under the Maritime Transport and Offshore Facilities Security Act 2003 and Maritime Transport and Offshore Facilities Security Regulations 2003, all persons working within secure areas of a port, ship or offshore oil and gas facility (maritime security zones) and who require unmonitored access to such zones must obtain and display a maritime security identification card (MSIC) any time they are in a maritime security zone.

Maritime security zones are used to subject areas within ports, on and around ships, and on and around offshore facilities to additional security requirements. The zones include:

• port security zones
• ship security zones
• on-board security zones
• offshore security zones.

The MSIC is a nationally consistent identification card which shows the holder has met the minimum security requirements to enter, remain and work unmonitored within a maritime security zone. The holder has been subject to police criminal history checks and security assessments and has been deemed not a threat to maritime security. The MSIC is not an access card and does not entitle the holder to automatic entry to all security zones. There still needs to be a genuine work-related reason as to why the holder is in a security zone. The relevant authority at each port/facility still controls access to its maritime security zone.

While working in a security zone, everyone needs to follow the facility operator's standard occupational health and safety procedures. A person must properly display the MSIC by attaching it:

• to outer clothing;
• at or above waist height;
• at the front of the body or side of the body or on a board around the upper arm; and
• so that the whole front of the MSIC is clearly visible.

A person may be fined or prosecuted if a MSIC is not displayed correctly, or it is invalid or misused when the person is in a maritime security zone.

The scheme commenced on 1 January 2007 and is administered by the Department of Infrastructure and Regional Development (DIRD). Offences which may preclude a person from obtaining a MSIC include:

• Treason, espionage and harming Australians;
• Supply of weapons or missiles;
• Offences involving hijacking or destruction of an aircraft or vessel;
• Treachery, sabotage, sedition, inciting mutiny;
• Unlawful drilling;
• Destroying or damaging Commonwealth property;
• Interference with aviation, maritime transport infrastructure or offshore facility, including carriage of dangerous goods on board an aircraft or ship or endangering the security of an aerodrome, a port or an offshore facility;
• Counterfeit or false identity documents or assuming another's identity;
• Transnational crime involving money-laundering, racketeering or people smuggling;
• Importation, exportation, supply or production or weapons, explosives or trafficable quantity of drugs.

The issuing body confirms the applicant's identity, operational need and requirements and the background checks. DIRD determines the eligibility of all applicants. Unsuccessful applicants may have a right of appeal. A MSIC is valid for 2 or 4 years with a background check conducted every 2 years.

Marshals require a MSIC any time they have to enter and remain in a maritime security zone, either for the purpose of arresting a vessel or maintaining custody of the vessel. Marshals should always carry their Federal Court identification card as well as their MSIC when entering a security zone.

The Court is responsible for obtaining all MSICs required by Marshals. Please contact Melanie Faithfull in NSW Registry to arrange for a MSIC to be issued, renewed or returned.

[3.20] Obstructing or interfering with Marshal

It is an offence for a person to:

• obstruct, hinder, intimidate or resist a Commonwealth public official in the performance of the official's functions as a Commonwealth public official (section 149.1 Criminal Code Act 1995 (Cth)); or
• intentionally receive, remove, retain, conceal or dispose of property which has been attached or taken under the process or authority of any federal court (section 49 Crimes Act 1914 (Cth)).

[3.21] Ship being loaded or unloaded at time of arrest

Generally, when considering the timing of an arrest, the Marshal will be cognisant of the impact of the arrest on the operations of the port, in particular whether the ship is carrying a load or is empty, waiting at anchor, coming into berth or already at berth.

This section provides some guidance as to the approach to be taken where a ship is in the process of being loaded or unloaded at the time of arrest.

At the time the arrest documents are filed in the Registry, the Marshal is usually only provided with very limited information about the cargo (if any) that is on the ship. Where loading or unloading has commenced prior to the arrest, the Marshal gives an instruction that the ship be restrained from working. The underlying premise is that the ship is not allowed to work without the Marshal's express permission. If the Marshal arrests the ship and allows it to continue to work he or she should consider issues of the Marshal's liability if there is an accident whilst unloading cargo. If unloading was not permitted or ceased at the direction of the Marshal, a person who is entitled to immediate possession of cargo may apply to the Marshal pursuant to Rule 49 to discharge the cargo from the ship.

It is not always possible for the Marshal to reach the ship at the time it arrives at port. Further, the Marshal may decide not to arrest the ship immediately if the arrest would interfere with any cargo unloading operations that are underway. However, as some modern ships can load and unload at the same time, the general premise to be applied here is that the Marshal should not allow the ship to load any cargo whatsoever, except where the Court orders otherwise. If the ship has commenced loading before the arrest takes place then, immediately after execution of the arrest warrant process, the Marshal should direct the Master to cease all cargo operations. In relation to unloading, it may be appropriate to consider executing an arrest after the unloading has been completed to avoid complications.

Where cargo already loaded includes livestock or perishable materials or goods, the Marshal should:

• seek advice from the relevant port and quarantine authorities – if livestock are already on board the ship then the Marshal should ensure that arrangements have been made for food and water to be loaded as well
• AMSA should be consulted where dangerous or hazardous goods or material are on board
• the Registry Convening Judge or docket Judge should be consulted where the plaintiff or other person has made a request to load cargo.

Other factors that the Marshal may need to consider include:

• any quarantine restrictions on the cargo being unloaded in Australia
• if the ship was to be sold (it cannot be assumed because the cargo was allowed to be loaded that it can be unloaded – this particularly applies to livestock and grain)
• the re-sale value of the ship and the amount of the claim(s)(as specified in the writ(s))
• the time the ship may take to fully unload its cargo (it could be 24 hours or longer)
• the other responsibilities of the Marshal (who may be a delegated law enforcement officer)
• whether the ship will need to be moved to allow other ships to load at the berth or terminal (see [4.15] in relation to moving the ship)
• costs generally.

If the cargo being unloaded is under arrest then suitable arrangements will need to be made for the secure custody of the cargo once it is discharged from the ship.

See [4.13] in relation to applications to discharge cargo.

After the arrest

[3.22] Notification of authorities

Once the arrest is made the Marshal should immediately notify the following authorities of the arrest and provide each of them with a copy of the arrest warrant:

• Manager of Marine Operations/Harbour Master
• the relevant Port Authority
• the water police (if not available at the time of arrest)
• the Collector of Customs
• the Operations Centre of the Office of Transport Security
• the Australian Maritime Safety Authority.

Each authority should be asked to help prevent the departure of the ship by refusing clearance facilities until further notice.

[3.23] Notifications to the Admiralty Judges and Principal Registry

Immediately after the arrest, the arresting Marshal should advise the Admiralty Judges and Marshals along with the Deputy Registrar (Admiralty and maritime) and Melanie Faithfull in the NSW Registry of:

• the name of ship arrested
• the date, time and location of the arrest
• the names of the parties
• any problems or other significant issues about the arrest.

An Outlook group has been set up, Admiralty Judges & Marshals (AdmiraltyJudgesMarshals@fedcourt.gov.au), which includes the names of all the people wishing to be notified of an arrest.

The relevant District Registry (that is, the Registry where the documents commencing the proceedings were filed) must also be advised of the execution (and service) for the purposes of updating Casetrack. The arresting Marshal (unless a remote Marshal) or otherwise a Marshal in the arresting Registry is responsible for updating the Admiralty Arrest Register.

[3.24] Admiralty Arrest Register

The Admiralty Arrest Register was originally an Excel file that contained details of the ships arrested by the Marshals. A SharePoint version was developed in 2017.

The Excel version of the Register can be found on the Court's computer system by opening the Excel program and selecting: Q:\National Data\Admiralty\Marshal\Admiralty Arrest Register document. The SharePoint version can be found at: http://thehub.fedcourt.gov.au/teams/AdmiraltyMarshal/Lists/Arrests/AllItems.aspx. If a Marshal cannot view the Register then he or she should contact the IT Service Desk on (02) 9227 4050 and request that this document be added to their profile.

[3.25] Notification to insurer

Within twenty-four (24) hours of an arrest warrant being executed, the Marshal must advise Wendy Paynter, Director, Financial Accounting, of the arrest.  Information about the value of the vessel needs to be obtained and provided as soon as possible. 

[3.26] Notification of ship's agent

A copy of the arrest warrant should be provided to any ship's agent for the ship. The role of the ship's agent should be considered carefully. Where it seems obvious that the arrest will be of a short duration the agent may continue to arrange and provide victualling, fuel, laundry and other services with the costs to be met by his principal. The Marshal should confirm these arrangements with the Master and the agent. Alternatively where the costs are not met by the agent's principal or where it is clear that the arrest will be of a longer duration, the Marshal should personally arrange to provide the supplies and services to the ship. The ship's agent should be able to assist with this. If the Marshal is to meet the costs of supplies and services to the ship then the Marshal should ensure they are reasonable.

The Marshal will need to communicate with the agent during the arrest to obtain information about the ship, its services, cargo issues and other issues that may have arisen pre-arrest that could assist the Marshal with custody of the ship.

[3.27] Notice that the ship is under arrest

As soon as practicable after the arrest, the Marshal should post a notice at the bottom of the gangway (or as close as possible to where the gangway allows access to the ship) stating that the ship is under arrest and that there is no access to the ship without the Marshal's formal permission.

A precedent notice is Annexure 5.

[3.28] Affidavit of execution of arrest warrant

The arresting Marshal must complete and swear (or affirm) an Affidavit of Execution of Arrest Warrant. This affidavit should be in accordance with Form 16 in the Admiralty Rules, a copy of which is at Annexure 6. The Affidavit should also include details of the service of any originating process (that is, the writ) and affidavit in support served by the Marshal at the same time as the arrest warrant was executed.

The affidavit should be filed in the District Registry in which the proceeding is being conducted and a copy should be sent to the solicitors for the Plaintiff.

[3.29] Arrest of small vessel

The arrest of a small vessel (fishing boat, yacht) may raise issues for a Marshal not encountered during the arrest of container or cargo vessels. The standard considerations in relation to health and safety issues for these types of arrests are size, type and location of the ship, possible issues with boarding the ship (such as weather conditions, time of day/night), need to anticipate any activities (loading cargo), and need to anticipate crew hostility or language difficulties.

Further considerations flowing from this are:

• whether the police or customs are interested in the vessel for their investigations
• need to get as much information from the practitioner as possible to identify probable issues to be encountered during the arrest and the custody
• if the vessel is located on private property, such as a marina, determine ease of access and whether the Marshal needs to obtain permission from the owner of the property, where the property owner is not a party to the matter or related to one of these parties
• whether there will there be resistance from anyone, either on board or otherwise:
• • any crew on board, whether they will resist is difficult to ascertain until conducting the arrest (consider requesting police etc assistance)
  • if this is a small community, there could be concern from locals
• the crew can be encouraged to leave the vessel but cannot be forced to go and if they stay, the Marshal should consider whether to appoint the crew member as a ship's keeper (it may assist maintaining the security of the vessel)
• as a courtesy, give a copy of the warrant etc to crew on board
• how to secure/lock up the vessel, and any belongings, after the arrest
• whether other security arrangements need to be made (such as a paid security guard) if the vessel is unattended or cannot be supervised in some manner
• if it is not safe to leave the vessel in its current location or whether the vessel needs to be moved or possibly put on hardstand or dry docked
• identifying property of the crew (it is vital to take comprehensive photos to address any subsequent claims about property on board)
• if a fishing vessel, there may be the issue of any catch (cargo) on board and who owns the cargo.

If there is any risk to the Marshal's personal safety, the Marshal (other than a delegated law enforcement officer) must consider whether to approach the police or the water police to accompany them on the arrest.
If police or water police are unable to assist, the Marshal may proceed with the arrest only if they consider it safe to do so. If at any stage of the arrest the Marshal is threatened or physically restricted, they should leave the ship and contact the local police immediately. It is an offence for a person to obstruct or hinder a Commonwealth public official in the performance of their duties (see [3.20]).

If police are unavailable and there are safety concerns, consideration may be given to hiring an appropriate number of private security guards. Marshals should be aware that private security guards have limited powers and may not be able to physically hold, detain or arrest any person.

It is helpful to approach the local ABF officers (even if they are not undertaking the arrest), as they can assist with the risk assessment process and may have intelligence regarding the particular vessel.

Following are examples of small vessel arrests by Marshals and further details are available in the relevant Marshal's file.

MV Sandman(fishing vessel) – WA 2015 arrested for unpaid loans

1. Marshal's power of entry onto private/rented/leased property

A Warrant was issued for the arrest of a fishing vessel (MV SANDMAN) which was in a specially designed cradle to support the vessel whilst in dry dock at a commercial industrial site. The premises were surrounded by a security fence and a locked gate. Fortunately the caretaker was on duty and allowed access.

With the vessel being on 'private premises', the following issues may arise. Responses are in red behind the questions posed.

1.1 Does the Marshal have to seek permission from the land owner (unless pre-arranged) to enter the premises at any given time? – yes, the Marshal does need to seek permission as they cannot trespass on private land to access the ship

1.2 The subject of further costs may emerge should a call out for the owner to allow entry.

1.3 If granted permission to enter, however, the owner of the vessel refuses to allow the Marshal on board to affix the documentation – the owner of vessel cannot refuse entry and may be contempt of court if they do

1.4 Should the owner refuse initial entry will they become liable for obstruct/hinder the Marshal – as above, yes

1.5 If Police attendance is requested re the above, Police may be somewhat hesitant in exercising their powers due to the nature of the matter – in the past Police have threatened to arrest a resident if he causes a breach of the peace during an arrest

1.6 What are the procedures to relocate the vessel away from the premises to another suitable location? – best to seek an order from the Court to move the vessel which should only be done if the arrest is protracted, longer than a couple of days

2. Property of vessel's crew

The vessel contained a number of fixed items allegedly belonging to a crew member, in this instance, the crewman stated he had designed and constructed a large metal fishing net reel which was bolted to the deck. He was most adamant he was going to remove the reel immediately as it was his property and not subject to any Court Order or proceedings.
Fortunately, he was persuaded to leave everything as is, despite his strongest objections avoiding the necessity for the Marshal to decide at the time of the arrest who owns what item.
Perhaps a good approach is, at the time the Application is sought, specific details are included as to what must remain on the vessel.
This is a difficult situation and the Marshal can only use their discretion. If items look to be the personal items of the crew and the master confirms this then it is alright for the crew member to remove it. However, if they are items of equipment then err on side of caution and restrain the person from taking them. 

3. Practitioners input/Legal questions

Given that these types of vessels are privately owned and probably the only source of income, the owner may be fiercely reluctant to assist the Marshal.

3.1. Practitioners need to provide to the Marshal as much information as is available concerning the possibility of resistance prior to arrest and any relevant information regarding the crew etc.

3.2. Where the owner is not present, can the writ etc be served on the crew member to affect the arrest? – all documents are to be attached to the vessel as per the usual arrest, on the window and signs attached to the vessel's entry point

3.3. If the vessel is unattended, should the arrest be affected without the owner present? – yes, with smaller vessels an unattended vessel is easier to arrest; take photos of the documents attached to the vessel

3.4. Should contact be made with the owner while at the site if the owner is not in attendance? This may cause delays and hinder the arrest if and when he/she arrives – it is better to talk to the owner regardless of the time it might take as it is helpful for them to know what is happening

3.5. Should the vessel contain a catch (fish etc), who has ownership of the catch and where can it be appropriately stored (in cold storage)? – the catch is cargo and may involve a legal question for which the Marshal may need to seek an urgent direction from the Court.

Dragon Pearl (yacht) – NT 2017 arrested due to dispute over money used to pay for yacht
Vessel being sailed from Singapore to a marina in Darwin by 2 crew members and there were a number of issues:

• Electrical repairs required
• Crews' wages outstanding, they wanted to stay on board as they had no money and nowhere to go
• Money for provisions on the vessel are slow to come through so maintenance work such as cleaning of the vessel cannot take place as the crew do not have the requisite cleaning products.
• The crew members are dissatisfied with the current arrangements and have mentioned repatriation or leaving Australia. How will the vessel be managed if they leave?
• Cyclone Season was imminent and the Marina Management were asking how long the Marshal intend for the vessel to remain in this berth as it is one of a limited size berths used for other vessels as a refuge when a cyclone is approaching. Marina Management need to know how long it will be berthed so they can update their cyclone management plans
• The generators and engine are overdue for servicing. This work will need to be undertaken prior to movement once released from arrest. Only once the vessel is mobile and out of the marina can the septic tank waste on board be emptied
• With Cyclone Season approaching there is a cut-off time to safely sail a vessel of this size to Qld
• Vessel not designed to run using on-shore power continuously for extended periods
• Cost of moving the vessel to another place such as Queensland (information was provided that the marina in Queensland would be the best place to undertake the necessary repairs).

[3.30] Marshal's files

The files maintained by a Marshal in relation to an arrest are not stored on the matter file. Instead, they are stored in a SharePoint site developed for marshals.

This SharePoint site includes the Arrest Register, the Marshals Register and the Marshals' files which stores any documents created by the marshal during the arrest: http://thehub.fedcourt.gov.au/teams/AdmiraltyMarshal/default.aspx.

Contact Andrew Gilbert (Victoria Registry) on (03) 8600 3513 to obtain access to the Marshals' SharePoint site.