Article 37 of the Merchant Shipping Act : is it in need of an amendment?

Abstract

When legal rights become embroiled in dispute, parties may resort to the mechanisms offered by law providing safeguards pending resolution by judicial process. Article 37 of the Merchant Shipping Act offers an alleged creditor a means of protecting his claim in an Admiralty Law case through the 'article 37 order'. Since its introduction in the Merchant Shipping Act in 1973 a number of amendments were brought to article 37 by Acts XXXVII of 1988 and XXII of 2000. Of noted importance are: 1. The change in requirements for an applicant; 2. The shortening in the time for obtaining the order; 3. The possibility of requesting security to be provided by the applicant in lieu of the order. Nevertheless, in spite of these amendments, and in some cases because of them, when resorted to article 37 presents difficulty in being applied. The study presented in this thesis is therefore twofold. On the one hand the aim is to analyse the nature of this action as a precautionary act and the efficacy of its intended role as a legal safeguard of alleged claims. I study the development of the order and the effect this has had when applied in practice, the place it holds alongside other similar precautionary remedies, both local and foreign, and the norms developed by our courts in applying this provision over time. On the other hand, conjointly with the first aim I identify areas on which the legislator has failed to legislate. Although analogous situations find specific 3 provisions in the main law on precautionary acts (i.e. the Code of Organisation and Civil Procedure) they are not mentioned in this special law. The applicability of the former to the latter is examined. Norms established by courts practice to fill in said lacunae is made. I illustrate the unsustianability of some judge made principles and offer solutions. The uncertainty created because of the absence of one complete and finite legal provision, taking the place of the judge made decisions, is strongly felt. I consider the hurdles potential applicants therefore face when considering the article 37 order as well as to prejudiced caused to the party against whom the order is filed. Although being successful in offering a temporary remedy pending the outcome of a case on the merits of the claim, I propose article 37 of the Merchant Shipping Act is at present unduly restrictive for want of legislative clarifications. The wording of the article together with precedents set in jurisprudence, such as for the requirement of an applicant, mean parties with a legitimate admiralty claim are offered no protection under any law and must await a judgment on the merits is pronounced. Therefore I submit that indeed article 37 is in need of an amendment.