Anne Rose Head of Shipping and Dispute Resolution
Admiralty Claims in the face of COVID-19 (Gibraltar)
COVID-19 is, unfortunately, everywhere: on our streets, on our news and on our social media. It dominates our work life and our personal lives. The outbreak has spread from China to Iran and Italy and continues to swiftly move into more and more countries.
At the time of writing to this article, fifteen people have tested positive for the virus in Gibraltar. Whilst this number compares favourably to other jurisdictions, our Government has been steadily taking measures to try and limit the spread of the infection including, from 00:00 on Tuesday 24 March 2020, placing Gibraltar on lockdown. This measure is largely due to the fast-increasing number of cases in Spain, the only country with which we share a land border. Spain sadly declared a state of emergency approximately 11 days ago.
On 11 February 2020, HM Government of Gibraltar issued the Civil Contingencies Emergency (Coronavirus) Regulations 2020 (later revoked and replaced by the Civil Contingencies Emergency (Coronavirus No.2) Regulations 2020). Pursuant to the former, and as followed in the latter, it became a requirement that any person entering the jurisdiction who had visited any one of a number of countries in the 14 day period preceding his date of entry into Gibraltar, had to report to the relevant authorities. In the case of any person entering by sea, the report had to be made to the Gibraltar Port Authority (“the GPA”). The regulations made it clear that a person could be refused entry into Gibraltar .
On 26 February 2020, the GPA issued a circular attaching a Coronavirus Public Health Declaration (“CPHD”) to be completed by all vessels intending to enter British Gibraltar Territorial Waters (“BGTW”) and provided to the GPA prior to the arrival. The form requires that declarations are made about the countries either the vessel or the crew have visited or transited through, whether the crew has suffered from any symptoms associated with COVID-19, or whether any shore-based personnel have visited the vessel in the preceding 15 days. The list reflects the countries listed in the Regulations listed above and includes China, Thailand, Hong Kong, South Korea, Vietnam and Cambodia. The form has not currently been expanded to include Spain or the United States both of which, at the time of writing this article, are amongst the most affected countries in the world.
On Monday 16 March 2020, the Chief Justice followed suit, issuing the Supreme Court (Covid-19 Contingency) Rules 2020 (“the Rules”) pursuant to the local Supreme Court Act which, from Tuesday 17 March 2020, had the effect of closing the Supreme Court Registry to the public until the expiration of the Rules (being 30 days after the date of commencement or until further extension or notice).
The Rules also provided for, amongst other things:
- The vacation of all hearing dates;
- the stay of all civil actions that had been commenced or were otherwise pending until 7 days after the Registry has been fully re-opened.
However, whilst all ongoing proceedings are stayed, the Rules provide for the issuance of proceedings and applications by email. They further provide for hearings to be conducted by telephone or any other method of direct oral communication as directed by the Judge.
Gibraltar has a long maritime history and is known internationally for its comprehensive legal and court system which deals with the arrest of vessels quickly and efficiently. Still further, Gibraltar still provides for the judicial sale of vessels by private treaty.
Usually, arresting a vessel is a simple and straightforward process but the various regulations set out above have left our clients wondering whether there is any possibility of bringing claims in rem and seeking arrests in the current climate.
In our view, Gibraltar is still open for business but clients must be aware of the following:
Hurdle 1: The vessel must be allowed to enter BGTW
For a vessel to be arrested, it must be within BGTW. It’s entry into BGTW will depend on a decision by the GPA based on the CPHD provided by the vessel. If it has been to a high-risk area, there is a possibility that it will not be allowed to enter or will be instructed to isolate for a period of 14 days at the Eastern Anchorage.
Hurdle 2: Service of proceedings and the warrant of arrest
Claims in rem must be served on vessels as provided for by our Civil Procedure Rules. Most commonly, this is by fixing a copy of the claim form on the outside of the vessel in a position where it may reasonably be expected to be seen.
However, in the current climate, it may not possible for the Court’s bailiff to board the vessel, for the crew’s health and safety as well as their own. The GPA has indicated that they will not be sending officers to board vessels and it is thus highly unlikely that the Admiralty Marshal will direct the court bailiffs to either.
If the Master refuses to allow anyone to board the vessel, it would be sufficient under our civil procedure rules to leave a copy of the claim form with him.
There are further alternative ways to serve proceedings. Should the arrest be a “friendly” arrest, the owner may well have instructed a legal representative within the jurisdiction to accept service on its behalf.
As a last resort, the rules also provide that service may be effected in any other manner directed by the court by way of alternative service, provided that the vessel is within the jurisdiction of the court.
In respect of the warrant of arrest, the rules provide that where it is not reasonably practicable to serve a warrant, service of notice of the issue of the warrant in the manner set out for service of the claim form or by giving notice to those in charge of the property, will be sufficient.
Hurdle 3: Preventing a vessel under arrest from leaving the jurisdiction
The Admiralty Marshal will always remove original certificates from vessels under arrest to prevent the vessel sailing. Where this measure is unlikely to be sufficient to stop the vessel from leaving BGTW, the Marshal will instruct ship keepers.
In the current climate, it may be that neither of these are options. In light of this, it is entirely possible that where an arrest is not “friendly” the vessel may sail out of the jurisdiction, even if properly served with proceedings. However, each vessel and crew is different and it may be that the crew agree to cooperate with the creditor even if the debtor is unwilling to.
Hurdle 4: Bunkers and supplies
On 18 March 2020 the GPA announced certain contingency measures during the Pandemic including that all STS Operations had been suspended and all bunker barge inspections by Bunkering Superintendents have been suspended until further notice.
Regardless, bunker suppliers continue to be operational in the Port with quality of service while protecting the health and safety of all involved.
Provisions and bunkers therefore continue to be supplied to vessels allowed to enter BGTW but with the GPA requirements that there be minimal to no contact between the crew and the suppliers.
Hurdle 5: Valuation by a court appointed surveyor
Where it is the intention that a vessel be sold by public auction, the Admiralty Marshal will instruct a surveyor to appraise the vessel in order to ascertain its value. Clearly this would require a surveyor to physically attend the vessel. In the current climate, this would be difficult: the surveyor usually appointed would have to fly into Gibraltar (weather and flight permitting) and then attend the vessel, potentially putting himself and the crew at risk of infection.
There may be work arounds to this: it may be possible for the court to accept a desktop valuation prepared by its valuer in lieu of a physical inspection. This would have to be discussed with the Admiralty Marshal and the approval of the court provided.
Hurdle 6: Repatriation and crew changes
Often arresting parties wish to reduce crew to safe manning levels (in accordance with Flag and GPA requirements). Unfortunately, the GPA have already stated that this would not be possible. Similarly, change of crew on the purchase of a vessel will not be allowed either. Any potential purchasers should be aware that they would have to take on the crew until the vessel can be sailed to a port where crew changes are being allowed or take on the crew for the vessel.
As long as the above 6 hurdles can be overcome, it is believed that the arrest of vessels will continue in the jurisdiction, even as we face the realities of the virus. Certainly, given the proactive approach by the Court system in “normal” times, it is anticipated that the Court will facilitate applications and, where possible, conduct hearings by telephone or videoconference. Each vessel will, no doubt, be considered on a case by case basis.
For any further information contact:
 Note that the Civil Contingencies Emergency (Coronavirus No.2) Regulations 2020 were further amended on 24 March 2020 and Regulations 5 and 6 which deal with, inter alia, the duty to report were revoked. Regardless, the current position regarding the CPHD remains the same as at 25 March 2020.
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