This country-specific Q&A provides an overview of Shipping laws and regulations applicable in Bahamas.
What system of port state control applies in your jurisdiction? What are their powers?
The ports in The Bahamas are controlled by the Port Department of The Bahamas (the “Port Department”) which is established statutorily pursuant to the Port Authorities Act 1962 (the “PAA”). It is the statutory duty of the Port Department to control the ports within The Bahamas.
The PAA vests powers in various port authorities which have powers of expressly set out in section 13 of the PAA which are, in brief:
To define the limits of the harbours and anchorages in a given port area;
To cause buoys to be laid down and to adopt other necessary measures to ensure the security of the harbours, anchorages and pilotage in a port area;
to carry out preliminary examinations of persons desirous of becoming pilots, and to submit recommendations to the Minister as to the suitability of the applicants;
to report to the Minister cases of misconduct or dereliction of duty on the part of any pilot;
to cause the scale of pilotage and other fees payable under the Act to be printed, posted and supplied to each pilot;
to appoint places for the laying of wrecks and condemned vessels to be broken up or sunk and to ensure that such vessels are laid on shore and broken up or otherwise sunk in the ocean; wrecks; and
in the event that a ship in a harbour does not have sufficient ground tackle, the port authority shall notify the owner or master of such ship and require the furnishing of good and sufficient ground tackle. If this sufficient ground tackle is not provided the port authority shall cause the removal of such ship.
Are there any applicable international conventions covering wreck removal or pollution? If not what laws apply?
With respect to wreck removal, The Bahamas is a party to the Nairobi International Convention on the Removal of Wrecks 2007 as incorporated to local law by the Merchant Shipping (Wrecks Removal) Regulations 2015.
With respect to pollution, The Bahamas is a party to:
Articles I to XI of and the Annex to the International Convention on Civil Liability for Oil Pollution Damage, 1992 as incorporated to local law by the Merchant Shipping (Oil Pollution) Act 1992; and
Articles 1 to 36 and the Annex to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 as incorporated to local law by the Merchant Shipping (Oil Pollution) Act 1992.
What is the limit on sulphur content of fuel oil used in your territorial waters? Is there a MARPOL Emission Control Area in force?
As of January 1st 2020 the limit on sulphur content of fuel oil used is 0.50% (See Bahamas Maritime Authority Information Bulletin No.183 para 1.1). There is no MARPOL Emission Control Area in force relating to The Bahamas.
Are there any applicable international conventions covering collision and salvage? If not what laws apply?
Yes, there is the Convention on the International Regulations for preventing Collisions at Sea, 1972 (COLREGs) as incorporated into local law by the Merchant Shipping Act 1976 (the “MSA”).
There is no applicable international convention covering salvage in relation to The Bahamas and The Bahamas has not ratified the International Salvage Convention 1989. However, the MSA addresses salvage issues as follows:
Section 100 (Right to wages and salvage not to be forfeited);
126 (No assignment or sale of salvage);
Part VI Wrecks, Salvage and investigations;
Section 232 (Reasonable salvage payable);
Section 233 (Disputes as to salvage);
Section 234 (Where receiver may determine amount of salvage);
Section 235 (Costs);
Section 236 (Valuation of property);
Section 237 (Receiver may seize property liable for salvage);
Section 238 (Receiver may sell detained property);
Section 239 (Voluntary agreement to pay salvage); and
Section 240 (Limitation of time for salvage proceedings).
Is your country party to the 1976 Convention on Limitation of Liability for Maritime Claims? If not, is there equivalent domestic legislation that applies? Who can rely on such limitation of liability provisions?
The Bahamas is a party to the 1976 Convention on Limitation of Liability as incorporated to local law by the Merchant Shipping (Maritime Claims Limitation of Liability) Act 1989 (the “MSLA”).
The MSLA can be relied upon by the owners of any vessel involved in a collision or allision in Bahamian territorial waters.
If cargo arrives delayed, lost or damaged, what can the receiver do to secure their claim? Is your country party to the 1952 Arrest Convention? If your country has ratified the 1999 Convention, will that be applied, or does that depend upon the 1999 Convention coming into force? If your country does not apply any Convention, (and/or if your country allows ships to be detained other than by formal arrest) what rules apply to permit the detention of a ship, and what limits are there on the right to arrest or detain (for example, must there be a “maritime claim”, and, if so, how is that defined)? Is it possible to arrest in order to obtain security for a claim to be pursued in another jurisdiction or in arbitration?
If cargo arrives delayed, lost or damaged, what can the receiver do to secure their claim?
The local legislation contemplates the appointment and actions of a receiver solely in the context of a wrecked, damaged or distressed ship. In the event that a receiver is appointed otherwise, his appointment shall be determined by terms of the instrument of appointment.
If a receiver is appointed by the Minister responsible for Maritime Affairs in the context of a wrecked, damaged or distressed ship that receiver, upon appointment is empowered under the MSA to take commend of the ship and give such directions as he considers necessary for, inter alia, the preservation of cargo.
Is your country party to the 1952 Arrest Convention?
Yes the Bahamas is party to the 1952 Arrest Convention (the “1952 Convention”).
If your country has ratified the 1999 Convention, will that be applied, or does that depend upon the 1999 Convention coming into force?
The Bahamas has not ratified the 1999 Convention therefore it will not be applied.
If your country does not apply any Convention, (and/or if your country allows ships to be detained other than by formal arrest) what rules apply to permit the detention of a ship, and what limits are there on the right to arrest or detain (for example, must there be a “maritime claim”, and, if so, how is that defined)?
As The Bahamas has ratified the 1952 Convention the rules of that Convention shall be applicable.
Is it possible to arrest in order to obtain security for a claim to be pursued in another jurisdiction or in arbitration?
It is arguable that the 1952 Convention provides a mechanism to arrest a ship in order to obtain security for a claim to be pursued in another jurisdiction. However, such a remedy would only be available if the court within whose jurisdiction the ship was arrested does not have jurisdiction to make a decision. In such a case, the security given pursuant to article 5 of the 1952 Convention to obtain the release of the ship will stand as security for the satisfaction of any judgment of a court authorized to make a decision on the claim.
Based on the wording of article 5 of the 1952 Convention, it appears as though it is possible to arrest in order to obtain security of a claim to be pursued in arbitration. Additionally, paragraph 3 of article 7 allows parties to agree to settle disputes in arbitration and the arbitrator may fix the time within which proceedings shall be brought.
For an arrest, are there any special or notable procedural requirements, such as the provision of a PDF or original power of attorney to authorise you to act?
Procedurally, vessel arrests in The Bahamas are governed by Order 67 of the Rules of the Supreme Court 1978 (the “RSC”).
The RSC sets out a number of procedural requirements necessary to affect the arrest of a vessel such as:
the filing of a Writ of Summons so as to set out the claim being made against the vessel;
the filing of an Affidavit setting out the evidence in support of the claim as well as the right and need to arrest;
the obtaining of a Court Order sanctioning the arrest;
the obtaining a warrant of Arrest authorising the Admiralty Marshal to arrest the vessel.
A power of attorney is not strictly necessary to commence and to pursue a maritime action including obtaining the arrest of a vessel and the act of filing the Writ will be demonstrative of having the authority to act on behalf of the party named as Plaintiff.
What maritime liens / maritime privileges are recognised in your jurisdiction? Is recognition a matter for the law of the forum, the law of the place where the obligation was incurred, the law of the flag of the vessel, or another system of law?
Part IX, section 277(1), of the MS 1976 sets out the statutory maritime liens recognised in The Bahamas thusly:
wages and other sums due to the master, officers and other members of the ship’s complement in respect of their employment on the ship;
port, canal, and other waterway dues and pilotage dues and any outstanding fees payable under this Act in respect of the ship;
claims against the owner in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship; and
claims against the owner, based on tort and not capable of being based on contract, in respect of loss of or damage to property occurring, whether on land or on water, in direct connection with the operation of the ship; and
claims for salvage, wreck removal and contribution in general average.
Is it a requirement that the owner or demise charterer of the vessel be liable in personam? Or can a vessel be arrested in respect of debts incurred by, say, a charterer who has bought but not paid for bunkers or other necessaries?
Pursuant to sections 8(1)(n)and 9(6) of the Supreme Court Act 1981 (the “SCA”) either the owner of a vessel or a demised charter is liable in personam in relation to claims for wages. Otherwise, with respect to debts, there is no in personam liability requirement. Section 8(1) (l) of the SCA provides that any claim in respect of goods or materials supplied to a ship for its operation or maintenance may be heard by the Supreme Court of the Bahamas. Resultantly, a ship may be arrested in respect of debts incurred by a charterer who had bought but not paid for bunkers or other necessaries.
Are sister ship or associated ship arrests possible?
Yes, where it can be established that the ships are under a common ownership such an arrest would be permissible.
Does the arresting party need to put up counter-security as the price of an arrest? In what circumstances will the arrestor be liable for damages if the arrest is set aside?
The putting up of counter-security is not a requirement for securing an arrest.
Pursuant to Order 67 rule 7 of the RSC where a vessel is arrested in circumstances where there is a caveat against arrest and the arrest is later set aside, then the arresting party may be liable to pay damages suffered. While this rule relates specifically to instances where there is a caveat against arrest, similar considerations would likely apply where there has been an otherwise wrongful arrest.
How can an owner secure the release of the vessel? For example, is a Club LOU acceptable security for the claim?
The owner of a vessel may secure the release of a vessel by putting in place sufficient security. Club Letters of Undertaking are acceptable as well as cash deposits and any other means which the Supreme Court may deem appropriate.
Describe the procedure for the judicial sale of arrested ships. What is the priority ranking of claims?
Order 67 rule 22 of the RSC relates to orders related to the judicial sale of ships and claims to the proceeds of sale. The RSC does not set out a specific procedure for the sale of ships and provides only that the Supreme Court is vested with the power to order the same. In practice, once a judicial sale has been ordered, the party who has obtained the right to sale a ship would usually provide evidence to the Supreme Court in relation to the value of the ship and the efforts made to affect the sale. With reliance upon such evidence, sanction would be sought from the Court by virtue of a formal Order authorising the sale. The sale will then be affected, officially, by the Admiralty Marshal on behalf of the Supreme Court.
Once the sale has been affected, the proceeds of sale will be paid into the Supreme Court and will be subject to its jurisdiction. In this regard, upon determining that a ship may be sold, the Court may provide directions in relation to: (i) a suspension of the determination of priorities for a certain period; and (ii) extending such period. Where the periods covered by such directions have expired, or where no such directions have been given, then any party who has obtained a judgment against the ship or proceeds of sale may apply to the Court for a determination of priorities.
For the purpose of determining priorities, the Admiralty Marshal is required (usually with the assistance of the selling party) to, within 7 days after the date of payment into court of the proceeds of sale send for publication in Lloyd’s List and Shipping Gazette and such other newspaper, if any, as the Court may direct, a notice setting out certain specifics such as: (i) the name of the ship; (ii) the gross proceeds of sale; (iii) the period which must elapse prior to the determination of priorities; and (iv) the necessity of anyone having a claim to the proceeds of sale to lodge the same prior to the expiration of the noticed period.
Once the publication has been made, the Admiralty Marshal must lodge a copy of each newspaper which published the advertisement with the Supreme Court Registry.
Priorities are then ranked as follows: (i) the costs associated with the arrest and sale of a ship (section 281 of the MSA) (i) possessory liens arising after the taking of possession (section 280 of the MSA) (ii) claims for salvage, wreck, removal, and contribution in general average (section 279 (1) (a) of the MSA); (iv) statutory maritime liens (see question 8 above); (v) secured charges; (vi) unsecured debts.
Who is liable under a bill of lading? How is “the carrier” identified? Or is that not a relevant question?
Pursuant to Article III of the Carriage of Goods by Sea Act 1926 (the “COGSA”) the carrier, or the master, or the agent of the carrier is liable under a bill of lading (it the key issue being who is in control of the goods on the ship).
Article I (a) of the COGSA identifies the carrier as:
“… the owner or the charterer who enters into a contract of carriage with a shipper”.
Further, pursuant to the Bills of Lading Act 1855 all consignees and endorsees are liable under a bill of lading.
Is the proper law of the bill of lading relevant? If so, how is it determined?
The proper law of the bill of lading is relevant only if the COGSA does not apply to the bill of lading. In the event that the COGSA does not apply the proper law of the bill of lading shall govern.
The proper law is usually determined by virtue of an express jurisdiction clause within the agreement. In the absence of an express clause there is likely to be a rebuttable presumption that the COGSA will apply. This presumption may be rebutted if there is something to show that the contract is more closely connected with another system of law.
Finally, if the proper law cannot be determined from the circumstances or close connections to another system of law, the proper law will be that of the flag which the ship wears and is registered (See Dicey & Morris “The Conflict of Laws” 10th edn vol 2 pgs. 851-858).
Are jurisdiction clauses recognised and enforced?
A jurisdiction clause is likely to be recognised and enforced.
What is the attitude of your courts to the incorporation of a charterparty, specifically: is an arbitration clause in the charter given effect in the bill of lading context?
There are persuasive authorities from other jurisdictions, which are likely to be applied by the Bahamian Court, which suggest that in order for an arbitration clause in the charter to be given effect it must be incorporated expressly (see Federal Bulk Carriers Inc v C Itoh & Co (The Federal Bulker)  1 Lloyd’s Re. 103).
Is your country party to any of the international conventions concerning bills of lading (the Hague Rules, Hamburg Rules etc)? If so, which one, and how has it been adopted – by ratification, accession, or in some other manner? If not, how are such issues covered in your legal system?
Yes the Bahamas is party to the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading as incorporated into domestic law by the COGSA
Is your country party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? If not, what rules apply? What are the available grounds to resist enforcement?
The Bahamas is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as incorporated to local law by the Arbitration (Foreign Arbitral Awards) Act 2009.
Please summarise the relevant time limits for commencing suit in your jurisdiction (e.g. claims in contract or in tort, personal injury and other passenger claims, cargo claims, salvage and collision claims, product liability claims).
The relevant time limits for commencing suit in the Bahamas are as follows:
Death, Personal Injury and loss of or damage to luggage – 2 Years (See MSLA 1989 First Schedule Part I Article 16). The MSLA 1989 First Schedule Part I Article 16 also addresses the calculation of the period.
Actions of Contract and in Tort- 6 years from the date on which the cause of action accrued (Limitation Act 1995 section 5).
Salvage Services- 2 years. Time begins to run “from the date when the salvage services were rendered.” (MSA section 240).
Cargo Claims- 2 Years (MSA section 276).
Collision Claims- 2 Years (MSA section 276).
Product Liability Claims- 2 Years (MSA 1976 section 276).
What restrictions, if any, has your jurisdiction imposed on crew changes in the wake of the Coronavirus pandemic?
There is no indication that The Bahamas Maritime Authority or The Bahamas Port Authority have implemented any specific impositions on crew changes in response to the Pandemic.
Does your system of law recognize force majeure, or grant relief from undue hardship? If so, in what circumstances might the Covid-19 pandemic enable a party to claim protection or relief?
The general legal position in The Bahamas is that Force majeure does not generally, in the absence of contractual provision, arise by operation of law. In the absence of a force majeure clause, a party seeking to avoid an obligation under a contract must be able to establish that the contract, or a specific aspect of the contract, has been frustrated such that it is not capable of performance. There mere fact that the performance has become more onerous is not sufficient to result in frustration. Accordingly, in order to claim protection from circumstances arising from the pandemic a party must be able to demonstrate either: (i) that there is a specific provision in the contract which grants relief in such circumstances; or (ii) that the pandemic rendered the contract, or an aspect thereof, incapable of performance.
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