CA-2024-000950 - [2025] EWCA Civ 1019

Although the detention of the vessel was unexpected, and the result of an unheralded change in the practice of the Indonesian authorities, it was at all times lawful in accordance with Indonesian law. Articles 193.1 and 219.1 of Law No. 17 of 2008 on Shipping provided (in translation) that:

‘Article 193

(1)

While sailing, a Master must adhere to the provisions related to the traffic procedures:

a.

Traffic procedures;

b.

Navigational routes;

c.

Route systems;

d.

Ship traffic areas; and

e.

Navigational Aids.

Article 219

(1)

Every vessel that sails is obligated to possess a Port Clearance issued by the Harbour master.’

The vessel did not have the necessary clearance to anchor and the master therefore committed a criminal offence under Indonesian law.

These provisions were in accordance with the United Nations Convention on the Law of the Sea, which provides for vessels to have a right of innocent passage through a state’s territorial waters without calling at any port, but this does not extend to stopping or anchoring without permission except where this is incidental to ordinary navigation or rendered necessary by force majeure.

The preamble to the Indonesian Law on Shipping records that its object and purpose, among other things, is to strengthen national resilience, to provide for a national transportation system to support economic growth and regional development, and to strengthen state sovereignty.

There was some suggestion at the trial that the vessel may have been detained because it was suspected of smuggling, or because the Indonesian Navy saw an opportunity to extract a bribe from the respondents. However, the judge rejected these suggestions. She found that there was a legitimate reason to arrest and detain the vessel under Indonesian legislation and that this happened because of a change of policy on the part of the Indonesian government with a view to asserting its sovereignty over its territorial waters.