Ship arrest is an effective channel to obtain security for a maritime claim held by a creditor domiciled in Thailand. The claimant is not required to submit a complaint, but only a petition requesting the arrest of the vessel along with fees as required by the Central Intellectual Property and International Trade Court (IP&IT Court). The IP&IT Court can grant an arrest warrant on the filing date. This article provides a general overview of ship arrest in Thailand.
The Brussels Convention on the Arrest of Sea-Going Ships of 1952 and the Geneva International Convention on the Arrest of Ships of 1999 have not been ratified by Thailand. Instead, ship arrest in Thailand is governed by Thailand’s Arrest of Ships Act B.E. 2534 (1991), which adopts the general principles in the Brussels Convention, with some differences. As a civil law country, the statutory framework established by the Arrest of Ships Act and related laws is dispositive and interpretations thereof, even if rendered by Thailand’s Supreme Court, are not binding precedents.
To file a petition for ship arrest in the IP&IT Court, a claimant is required to have a local domicile, regardless of its nationality. In other words, a foreign claimant with a domicile in Thailand may seek the assistance of the IP&IT Court to arrest a ship.
Unfortunately, the Arrest of Ships Act does not define “domicile.” Thus, one must look to Thailand’s Civil and Commercial Code, which defines domicile as the place where a person has his or her principal residence. For a juristic person, domicile is the place where it has its principal office or establishment, or which has been selected as a special domicile in its regulations, articles of association, or bylaws. Domicile cannot be established by merely engaging an agent in Thailand.
Types of Claims
Creditors applying for a court order to arrest a ship must have a maritime claim arising out of at least one of the following general circumstances:
Object of the Arrest
A ship arrested under the Arrest of Ships Act must be a sea-going vessel for the carriage of goods or passengers internationally (not locally), regardless of her flag. Thailand allows for a broad right of ship arrest, allowing a creditor to arrest a vessel, even if the vessel is not related to the maritime claim, where the vessel is:
This general rule does not apply where the claim relates to the ownership of the ship or to a mortgage on the ship. In this case, the creditor may only arrest a ship that is both related to the claim and owned by the debtor.
A petition to arrest a sea-going ship must be filed ex parte to the IP&IT Court. The request will be unilateral, and the judge will proceed with an ex parte inquiry on an urgent basis, normally on the submission date. If the IP&IT Court is satisfied that the maritime claim has merit, based on evidence adduced by the claimant, the Court will order the ship arrested within the same day. If the claimant petitions to arrest a ship that has not yet entered Thailand, the claimant must also prove that the ship will actually be entering Thailand.
In addition to legal fees, claimants must be prepared to remit the following funds:
Release of the Ship
A ship may be released in the following circumstances. If the debtor deposits funds in the same amount as prescribed in the order of the IP&IT Court, the Court will order the ship to be released immediately. In addition, if the claimant does not file a complaint within 30 days after the arrest warrant is issued, the arrest warrant will expire and the ship will be released.
In conclusion, the rights and remedies provided in the Arrest of Ships Act, as well as the streamlined procedure for arresting a ship, may only be enjoyed by creditors who have a local domicile in Thailand. Foreign creditors, however, may have remedies outside of the Arrest of Ships Act, depending on the nature and origin of the claim. Foreign creditors should speak with a legal professional prior to declining to take legal action in Thailand