1. Applicable law
Much of the underlying substantive law with maritime disputes is the same under Scots law and English law. For example, the Merchant Shipping Act 1995 and regulations passed under it apply in Scotland. International Conventions are signed up to at UK level.
However, the Scottish procedure is very different (more on which below) and other substantive laws which impact on shipping disputes can differ from English law and therefore create different results in respect of a particular dispute.
2. Court system
There is no Admiralty Court in Scotland and there are no specialist Admiralty judges. Disputes are generally heard in the Court of Session in Edinburgh (our High Court) for disputes worth over £100,000 and local Sheriff Courts for claims worth less than that.
3. Actions in rem and in personam
A Scottish admiralty action may be brought in rem (against the vessel) where the subject matter of the dispute or debt relates to the list of claims in section 47(2) of the Administration of Justice Act 1956. This is nearly identical to the list of claims in section 20(2) of the Supreme Court Act 1981 which may be heard in the High Court in England.
An action raised against the owner of a ship, the demise charterers, or other parties interested in a ship will be a claim in personam. An action can be raised both in rem and in personam where there are rights of action against the owner and the vessel.
4. Ship arrest
There are several matters which require to be taken into account when contemplating arresting a ship (or if your ship is arrested) in Scotland. See this link for details.
5. Timebars
The default timebar for contractual claims in Scotland is five years (compared to six years under English law). When the clock starts can also differ.
There are shorter timebars for specific maritime incidents such as collisions, as is the case in England.
6. Regulators
The MCA and MAIB (and sometimes HSE) investigate maritime accidents in broadly the same way as in England. However, how they exercise those powers does differ, particularly relating to interviews of witnesses and suspects.
The MCA and HSE cannot prosecute in Scotland. They can only recommend prosecutions to Scotland’s prosecuting authority (COPFS) which will decide whether to prosecute and will conduct the prosecution itself.
Police Scotland will assume initial primacy over investigations when there has been a fatality. They too have to report their findings and recommendations to COPFS.
7. Fatalities
In the event of a fatality in Scotland or Scottish waters during a commercial maritime incident there requires to be a Fatal Accident Inquiry (FAI). The nearest comparator procedurally would be the Coroner’s Inquest procedure in England. The FAI is brought to court by COPFS and is heard in front of a Sheriff. There can be no civil or criminal sanction at the end of it, but findings in fact are made in relation to how the accident occurred and how it could have been avoided. Recommendations are sometimes made to avoid future similar incidents.
There can be both a prosecution and an FAI in respect of the same incident, with the prosecution typically coming first.
8. Damages regime
Losses can be calculated very differently under Scots law for a wide variety of claims and the heads of claim have very different nomenclature.
The starkest difference is in relation to people claims, particularly where there has been a fatality, with each qualifying member of the family having individual rights / interests. The Damages (Scotland) Act 2011 contains the substantive law.
9. Judicial interest
The default rate of judicial interest in Scotland is 8% per annum. There are some exceptions to this. The rate will typically be applied from when the loss was sustained. Judicial interest on high value claims can therefore be very significant indeed.
10. Vessel registration and mortgages
Scottish ships are registered on the UK Ship Register (UKSR). There is no separate Scottish branch.
The statutory mortgage form comes from the Maritime and Coastguard Agency. It should be executed in compliance with the laws of the vessel’s home port. For a vessel with a home port in Scotland, the requirements for execution of the mortgage will differ compared with English vessels.
For both types, the compensation is in reference to ‘reasonableness’ and is often inherently broad brush or sometimes, for the larger claims, in reference to notional hourly rates.
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