The Undertaking's Bite:
When a Ship Arrest Goes Wrong

Arresting a vessel is a powerful tool to secure a maritime claim, but the undertaking given to the Admiralty Marshal to obtain the arrest is a live wire that may result in severe financial consequences. The decision of the High Court in The Astoria provides a stark reminder that when a claim fails, the arresting party can be held directly liable for six-figure operational costs—without the shipowner ever needing to meet the formidable threshold of proving a claim for wrongful arrest.

When a claimant seeks a warrant to arrest a ship, their solicitors give an undertaking on Form ADM 4 to pay on demand the fees of the Admiralty Marshal and all expenses incurred by him or on his behalf. This covers the arrest itself, the care and custody of the vessel while under arrest, and its subsequent release. A similar undertaking on Form ADM 12 is required when the claimant or the defendant requests the vessel’s release.

In a typical case where a vessel is judicially sold by a final order of the court, the Marshal’s fees and expenses are paid as a first charge from the proceeds of sale, thereby discharging the undertaking. This, however, does not render the undertaking a mere formality. Its full force is felt whenever the claim is ultimately unsuccessful, whether by withdrawal or by adverse judgment. In such scenarios, the arresting party is directly liable. This liability can be substantial, particularly when significant port and harbour dues fall within the scope of the vessel’s “care and custody”.

This principle was powerfully illustrated in Monjasa v The Vessel “Astoria” [2021] EWHC 134 (Admlty). The claimants supplied bunkers to the Astoria while she was operated by a bareboat charterer. When the bunkers went unpaid, they arrested the vessel. However, the bareboat charter had been terminated before the claim was issued, meaning the claimants could not satisfy the jurisdictional requirements of section 21(4)(i) of the Senior Courts Act 1981.

Critically, the vessel’s owners warned the claimants of this fatal jurisdictional flaw before the arrest was even effected. Despite this, the claimants proceeded with the arrest and only requested the vessel’s release ten days later. An issue then arose over liability for the port charges of £129,984.96 incurred during the arrest, which the owners had paid to allow the vessel to sail.

The court was not required to rule on the ultimate liability for the dues, as the owners confirmed they were not seeking a contribution. However, in deciding the costs of the dispute, Deputy Admiralty Registrar Jervis Kay QC affirmed the underlying principle. He found that the owners’ position—that any harbour dues properly classified as Admiralty Marshal’s costs were the responsibility of the claimants by virtue of their undertaking—was “both factually correct and a reasonable position” to adopt.

The case therefore serves as a vital reminder that an arresting party can become liable for significant operational costs under their undertaking. Crucially, this liability arises as a procedural consequence of a failed or discontinued claim. It does not require the shipowner to meet the formidable threshold of proving a claim for damages for “wrongful arrest” in the tortious sense.