Although not a maritime superpower, Thailand has a clear policy for developing her Laem Chabang Port to become a leading international port of the Southeast Asian region, looked upon as a gateway to global trade. To this end, in the past five years the Thai government has enacted a number of new maritime laws. These include: the General Average in Maritime Adventure Act, B.E. 2547 (2004), Civil Liability and Damages Arising from Collision of Vessels Act, B.E. 2548 (2005) and the Marine Salvage Act, B.E. 2550 (2007). These are introduced in addition to existing major statutes, namely: Carriage of Goods by Sea Act, B.E. 2534 (1991), Arrest of Ships Act, B.E. 2534 (1991), Ship Mortgage and Maritime Lien Act, B.E. 2537 (1994) and the Act on Prevention of Collision of Ships, B.E. 2522 (1979).
The General Average in Maritime Adventure Act, B.E. 2547 (2004) took effect on 20 January 2005. This law was modelled on the York-Antwerp Rules 1994; but has some unique characteristics of its own. Firstly, this law dictates that if a contract of carriage specifically provides for other rules to apply to general average, for example the York-Antwerp Rules, then such rules shall apply notwithstanding the Act. Secondly, Thai law prioritizes the parties having the right to demand general average contribution and puts the shipowner at the top of the priority list. If the shipowner does not demand general average contribution from the contributing parties or other interests in the common adventure within a reasonable period from the day the adventure ends, the party sustaining damage from a general average event, such as the owner of the sacrificed cargo, shall be entitled to give notice to the shipowner to require him to do so within 30 days. If the shipowner again fails to take action, other concerned parties have the right to demand general average contribution.
It is a clear intention of the new Act to establish a legal right for cargo owners to demand general average contribution; however, the procedures currently laid down for cargo owners to exercise this right are impractical for two reasons. Firstly, the Act does not lay down any procedures for general average adjustment by cargo interests (and there is no customary practice) and secondly, cargo interests are not in a position to enforce their right to general average contribution as they are unable to exercise any form of lien over vessel or other property on board. A shipowner’s claim for general average contribution is subject to a five-year time limit from the day the incident giving rise to general average occurs.
The Civil Liability and Damages Arising from Collision of Vessels Act, B.E. 2548 (2005) adopts the principles of the Convention for the Unification of Certain Rules of Law with Respect to Collision between Vessels 1910 (the Brussels Convention) combined with the Lisbon Rules 1987 to set down the rules for apportionment of liability between the vessels involved in collision and the nature of recoverable compensations. The law follows the Brussels Convention, which requires at least one vessel involved in the collision to be a sea going vessel, while the categories of damages recoverable between the vessels are similar to those stipulated in the Lisbon Rules. The Act, which took effect on 6 May 2005, resulted in the legal presumption of liability for vessel collision stipulated in the Navigation in Thai Waters Act, B.E. 2456 (1913) becoming inapplicable to the issues of civil liability in vessel collision cases. Claims for damages in respect of life, health of a person and property on board must be exercised within two years from the day on which the damage occurred.
The Marine Salvage Act, B.E. 2550 (2007) took effect on 31 October 2007. This law is identical to the International Convention on Salvage 1989. As such, the criteria set for the salvor’s reward and shipowner’s liability for special compensation are the same as those laid down by the Convention. Prescription for the salvor’s claim for salvage remuneration is two years from the day the salvage operations are terminated.
With a view to creating a judicial system that specializes in interpreting and applying maritime laws to claims which by nature and customary trade practice are distinctly different from other kinds of civil claims, the Central Intellectual Property and International Trade Court (“the IP&IT Court”), situated in Bangkok, was established as a specialized court having jurisdiction over disputes in respect of maritime claims, intellectual property and international trade. Therefore, claims arising from general average, maritime salvage and collision of seagoing ships are subject to the jurisdiction of the IP&IT Court.
The three maritime laws recently enacted, and particularly the General Average in Maritime Adventure Act, B.E. 2547 (2004) and the Marine Salvage Act, B.E. 2550 (2007), have taken the Thai legal system a step further in the course of its development and helped to make it clear in the legal mindset that principles and practice of general average and salvage are recognized, enforceable and endorsed by the law.
Besides the three new maritime laws, the Thai government has a policy to ratify the International Convention on Civil Liability for Oil Pollution Damage, 1992 (CLC) and a draft Act to endorse the Convention has been prepared.
With thanks to Pramual Chancheewa of Pramuanchai Law Office for preparing this article.
