Thai Law Insights

Procedures to Seize a Ship to Satisfy a Debt in Thailand

(CSBC Law Offices Maritime Project Series)

Phungphong (Patrick) Tunganantiganon

Foreword

In the ordinary case of a bad debt, irrespective of the origin of the debt, whether through a contractual or actual obligation; the creditor has the right by law to demand the payment of the debt once a breach has occurred. A creditor can enforce a debt against the asset of a debtor in order to satisfy the debt.  However, there are cases when a debtor has no tangible assets within Thailand and in such cases the creditor’s right by law to enforce the debt is compromised as the creditor cannot attach assets to satisfy the debt owed. The only option for a creditor in such a case may be to file a separate petition in a country where the debtor has assets.  However such action may be to the detriment to the creditor because of the cost of pursuing the same debt in foreign land is typically high. To reduce this problem, Thailand has implemented a numbers of Acts to broaden the creditor’s scope of assets which can be seized from a debtor, including the ‘Arrest of Vessel Act’ of 1991 (“Act”).

Definition

The definition of arresting a ship is the act of stopping a ship which belongs to a debtor or a ship which is in a debtor's possession and, prevent the ship from leaving Thailand, in order for the ship to be recognized as the debtor's asset so that a creditor can bring legal action to demand payment of the debt from the ship itself.

Factors

1. Ships which can be arrested

In order to arrest a ship which belongs to or is in the possession of a debtor, certain prerequisites must be satisfied.  Section 3 of the Act states that to be classified as a “ship”, the vessel must be seafaring and is being used internationally in the transportation of goods or people. If this criterion is not satisfied, the ship will not be classed as a ship for the purposes of the Act and, the creditor cannot petition the court to arrest the ship. Such ships which do not fall within the criterion, even if the ship belongs to the debtor, or in the debtor is in possession, are as follows:

• Ocean faring ships not used for the transportation of goods or people
• Battleships
• Oceanographic survey ships
• Metrological ships
• Trawling boats, including oil rigs

2. Debt which can be used to petition a ship arrest

Debts which can be used to petition an arrest of a ship must be those which fall under the Arrest of Vessel Act of 1991 (“Act”). Debts outside the scope of debts considered under the Act, cannot be used to petition the arrest of a ship.

3. People permitted to make an arrest petition

Only the creditor and public prosecutor can make such petition.

4. Formality in petitioning the court to issue an arrest order

In order for the court to issue an arrest order, the following formalities must be followed:

1) The petition must be filed as an ex parte petition and it must be filed before any application to prosecute the debtor is proffered, to the Thai Central Intellectual Property and International Trade Court.

2) The petition must clearly show:

• The right of the creditor in making such petition
• The debt which is being used in making the petition
• Details of the creditor
• Name of Debtor
• Name of the Ship
• Ship registration number
• Size of the ship
• Origin of the ship
• Port of registration
• Name of the captain of the ship
• Port of Residence

3) In a case in which the debtor is not the owner of the ship but is in full possession of the ship, the petition must clearly state for the court that the petition is being made due to the nature of the ship business and that at the time of the petition and the time the ship was being used to carry out its business, the ship was in full possession of the debtor.

4) After the court has received the petition, the court must expeditiously carry out an investigation based on the single petition made, and if the court decides that the petition has merit. If the case has merit, he court must issue an order to arrest the ship in question. Within the order, the court will clearly state for the benefit of the debtor, the bail set in order for the court to release the boat.

When the petition is made if the ship in question has not yet entered Thai territory, the creditor must bring evidence before the court to convince the court that the ship in question is coming into Thai territory so that the ship will be within the court's jurisdiction and the court can issue an arrest order.

5) If the debtor has no domicile in Thailand, the court may direct the creditor to bring some form of guarantee as the court sees fit, before any arrest order is issued. This is at the court discretion. However, if the debtor is domiciled in Thailand the court will always direct the creditor to produce some form of guarantee before the court issues an arrest order, unless the creditor can prove to the court satisfaction that the debtor has no tangible assets in Thailand to offset the debt in question.

6) When an arrest order is granted, no appeal is available.

5. Enforcement of arrest order

After an arrest order is granted, the court will issue a warrant to the Bailiff who has jurisdiction where the ship is moored, to make the arrest. In actual fact, the creditor will receive the warrant from the court and it is the creditor who will deliver the warrant to the Bailiff for service.

Once the Bailiff has the arrest order, the creditor must pay the fee for such order, the sum of which must be 1% of the debt use to make the petition, but not more than THB 100,000. Once the fee has been paid in full, the Bailiff will make the necessary communications with the harbor master where the ship in question is moored, to stop the ship until the Bailiff can serve the arrest order.

Once the Bailiff serves the arrest order, the order must be signed by the owner or the captain of the ship.  If either party refuses to sign the order, the Bailiff has the power to bring an officer of the law as a witness when delivering the warrant. If the owner or the captain of the ship still refuses to sign the warrant, the Bailiff can leave the warrant in plain sight and the warrant will be considered as served upon the owner or captain of the ship.

After the warrant is served, the Bailiff will send a letter to the embassy where the boat originated from to inform them of the arrest. Once the letter is served the ship will automatically become a property repossessed under the Thai Civil Procedures Code.

6. Duties of the creditor after the ship has been arrested

When the warrant has been served to the ship in question, the creditor has 30 days from the date which the warrant was served, in which he must file a lawsuit against the debtor, in the Thai Central Intellectual Property and International Trade Court. If the creditor does not file a lawsuit within the timeframe specified, the court will have the power to release the ship in question. The court's ruling will be final.

Summary

From the factors mentioned above, it appears that the method to obtain an arrest of ship order may be complex.  Additionally, a creditor may need to coordinate with several law enforcement agencies in order to fully arrest a ship.  This requires painstaking time and effort and, any mistake could allow the debtor to flee the country with the asset in question. It is clear that to seek satisfaction of a debt by arresting a ship in Thailand, a creditor must seek a lawyer who specializes in Thai maritime law to ensure the success of such an action.