Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter A.18: Arrest of vessels

Chiara E Tuo

I. Concept and notion

The arrest of vessels does not have the same meaning in every legal system. Although most countries provide for the arrest of ships, it is within the English (common law) admiralty law (→United Kingdom) that it has undergone a special development (Robert Samuel Theodore Chorley and Otto Charles Felix William Giles, Shipping Law (8th edn, Pitman 1987) 6–7). In the United States (→USA) it is known as ‘preliminary attachment’, in Scotland as ‘ship arrestment’, in →France as ‘saisie conservatoire’, in →Spain as ‘embargo preventivo’ and in →Italy as ‘sequestro conservativo’. None of the above-mentioned types of arrest are identical to one another, but they all share a common feature, ie their provisional nature and protective character, which have always been regarded as the most salient aspect since the very beginning (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 6).

The precise historical origin and development of the arrest of ships is not entirely clear. Despite several scholars attempting to trace it back (Frank Lawrence Wiswall, The Development of Admiralty Jurisdiction and Practice since 1800 (CUP 1970) 183) no definite source still appears to be the real original one.

No evidence of the arrest of ships, or of any institution deemed to accomplish equivalent functions, can be found in the ancient →lexmaritima, derived from the customs of the early Egyptians, Phoenicians and Greeks, who carried out an extensive commerce in the Mediterranean Sea (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 24). Nonetheless, due to the remarkable involvement of foreigners in commercial cases, the Athenian commercial maritime procedure of the 4th century provided for rigorous rules on pre-trial bail for defendants as well as for special measures aimed at assuring the latter’s appearance at the ensuing trial and at enforcing (also through imprisonment) the judgments of maritime tribunals (Edward E Cohen, Ancient Athenian Maritime Courts (Princeton University Press 1973) 80).

The first trace of arrest of ships can eventually be detected in the Rhodian Sea Law as compiled by the Romans – who did not have their own maritime law – in the Corpus Iuris Civilis of the 6th century whereby, at the beginning of the Roman Empire, the ship could be arrested until bail was given (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 24–5).

However, it was not until medieval times, when the development of trade within Europe led to the emergence of the →lexmaritima as an important part of the →lexmercatoria, that the relationship between the ship and its creditors was first framed as conceived in present times. Such relationship can also be found in the first article of The Rules of Oléron, whereby it is established that the master may pledge part of the ship’s equipment for necessaries. The first provisions concerning the arrest of ships were then included in the Ordinances adopted by King James of Spain (1213–76), but it is not before the end of the 15th century that they acquired broader recognition and acceptance through their compilation in the Consolato del Mare (1494) (Sergio Maria Carbone, ‘Conflits de lois en droit maritime’ [2009] Rec. des Cours 73, 73–82; Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 25–7).

In present times maritime creditors often give paramount importance to the search for security for their claims and in times of economic crisis the number of ship arrests tends to increase worldwide (Martin Davies, ‘Choice of Law and U.S. Maritime Liens’ [2009] Tul.L.Rev. 1435, 1461). Maritime creditors always face the threat of being unable to recover their debt, if the debtor’s ship – the main asset on which so many maritime creditors depend in extending credit – should sail away without the debt having been paid. Similarly, the possibility of post-judgment execution, by way of the judicial p. 133sale of the arrested ship, is a key consideration for maritime creditors concerned about the solvency of their debtors (William Tetley, ‘Arrest, Attachment, and Related Maritime Law Procedures’ [1999] Tul.L.Rev. 1895, 1898). Thus, in the context of maritime claims raised against foreign defendants, the ship is in most cases the sole asset that the claimant is able to secure for the purposes of enforcing his claim (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 19).

In common law countries whose maritime law is primarily derived from the admiralty law of England, the arrest proceeding is conceived as an action in rem, ie a proceeding against the res, which once instituted may be made effective by the arrest and judicial detention of the res proceeded against, and followed, if necessary, by the judicial sale of the property (→Property and proprietary rights) and with the claim satisfied out of the proceeds of sale. Thus, with respect to maritime claims, the arrest proceeding and the related judgment are understood to be against the ship (William Tetley, ‘Arrest, Attachment, and Related Maritime Law Procedures’ [1999] Tul.L.Rev. 1895, 1898).

In civil law countries, only a physical person or a company (→Companies) can be held liable, not an object. In such countries a creditor could however arrest all the assets of an unwilling debtor for all his debts and seize bank accounts, real property, furniture and ships. Therefore, a ship could be arrested in such countries for any credit, even of a non-maritime nature (Tony Kegels, ‘Arrest of Ships: The End of Uniformity?’ in Robert Wijffels and Marie-Paule Serck (eds), Liber amicorum Robert Wijffels (ETL 2001) 114). The arrest permits any property of the debtor (including ships) to be seized and detained under judicial authority pending judgment. The subsequent judgment, if favourable to the plaintiff, may then be enforced against the attached property or the security replacing it (William Tetley, ‘Arrest, Attachment, and Related Maritime Law Procedures’ [1999] Tul.L.Rev. 1897, 1898).

II. Purpose and function

As previously said, the arrest of a ship as an interim protective measure is available in most legal systems but is approached and effected differently in each country. The common features are (i) its inherently provisional and protective nature; (ii) its relationship with jurisdiction; (iii) its security function. These features and functions have become so intertwined that it is difficult to draw lines and establish clear-cut categories among them (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 8).

For the arrest of vessels primarily fulfils a protective function, one could refer to it as to an interim measure of protection. While the ship is under arrest, it comes under judicial custody and cannot be moved without the court’s permission pending the adjudication of the claim.

Another function of the arrest of ships is to establish the jurisdiction on the merits (The Anna H [1995] 1 Lloyd’s Rep. 11). The strongest link between arrest and jurisdiction is the forum arresti and the possibility to found jurisdiction on the merits upon arrest (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 9). This allows a claimant to be satisfied at the jurisdiction where he or she obtained the security. Otherwise, the situation could arise where the security obtained would not be transferable between the court that has jurisdiction on the merits and the court of the other jurisdiction, thus rendering the security ineffective (University of Southampton, Institute of Maritime Law, Southampton on Shipping Law (Informa 2008) 357). Currently it has been argued that forum arresti constitutes a general trend in international procedural maritime law and that it is justified in terms of convenience, derived from the essentially moveable nature of the ship (Richard Herbert and Cecilia Fresnedo de Aguirre, ‘El Arresto de Buques y el Principio de Jurisdicciòn mas Pròxima’ [1993] Revista de Transporte y Seguros 167).

Third, the arrest also serves as security for maritime claims by safeguarding the ship against which the final award or judgment can be enforced. The security function of arrest of ships has been considered as its most relevant one (Juan José Alvarez Rubio, Derecho marítimo y derecho internacional privado: algunos problemas básicos (Servicio Central de Publicaciones del Gobierno Vasco 2000) 102). Such function implies that the arrest cannot be affected by chance events that may happen between the arrest and the judgment (The Cella [1888] 13 PD 82) nor be defeated by the subsequent insolvency of the owner of the arrested vessel (Nigel Meeson, Admiralty Jurisdiction and Practice (Informa 1993) 118) and ultimately ensures the availability of the judicial sale of the ship (David C Jackson, Enforcement of Maritime Claims (Informa 2005) 427). Indeed, p. 134the ship under arrest becomes a financial security for the claimant. Thus, unless the shipowner puts up security in order to have the ship released from arrest, the ship will be sold and the claimant will be paid out of the proceeds of sale (University of Southampton, Institute of Maritime Law, Southampton on Shipping Law (Informa 2008) 357). On this basis the argument is that the ultimate purpose of arrest of ships is to give the creditor the chance to create a right in security over the ship and, in turn, that possibility puts pressure on the debtor in order to provide alternative security (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 10) to prevent the arrest of the ship or to allow it to be released, and ultimately, to comply with the eventual judgment.

III. The arrest of ships in the international arrest conventions

The modern rules on the arrest of ships are shaped by international uniform law. As the blossoming of international trade is triggered by the development of a predictable system of law, one of the ‘dominant legal leitmotifs’ (Paul Myburgh, ‘Uniformity or Unilateralism in the Law of Carriage of Goods by Sea?’ [2000] Vict.U.Well.L.Rev. 355) of the last two centuries has been the search for uniformity (Sergio Maria Carbone, ‘Conflits de lois en droit maritime’ [2009] Rec. des Cours 73, 73–94; Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 44).

When at the end of the 19th century it appeared obvious that the national legislators and politicians were not able to make any progress in making international law uniform, the Comité Maritime International (CMI) was set up as a private organization with a view to promoting the unification of maritime law (Tony Kegels, ‘Arrest of Ships: The End of Uniformity?’ in Robert Wijffels and Marie-Paule Serck (eds), Liber amicorum Robert Wijffels (ETL 2001) 113). The 1952 Arrest Convention (International Convention of 10 May 1952 relating to the arrest of seagoing ships, 439 UNTS 193) was a CMI constitution. It was adopted in Brussels on 10 May 1952 and entered into force on 24 February 1956. Although arrest has been a topic of CMI discussions since 1930, due to the considerable differences existing, as seen, among the legal systems of the countries involved therein, it took more than 20 years for the task of drafting a text allowing arrest to be accomplished (Tony Kegels, ‘Arrest of Ships: The End of Uniformity?’ in Robert Wijffels and Marie-Paule Serck (eds), Liber amicorum Robert Wijffels (ETL 2001) 113). At present, the 1952 Arrest Convention has 84 ratifications and accessions (cf the CMI website, <www.comitemaritime.org>, last accessed March 2014).

Discussions as to the possible review of the 1952 Arrest Convention were started at the CMI Annual Conference in Lisbon in 1985. The preparatory work began following the adoption in 1993 of the Maritime Liens and Mortgages Convention (International Convention of 6 May 1993 on maritime liens and mortgages, 2276 UNTS 39) by the United Nations/IMO Conference of Plenipotentiaries on Maritime Liens and Mortgages. Arrest of ships being a means of enforcing maritime liens and mortgages, it was considered necessary to revise the 1952 Arrest Convention so as to align closely the two conventions and to ensure that all claims giving rise to a maritime lien under the 1993 Maritime Liens and Mortgages Convention would give rise to a right of arrest under the 1952 Arrest Convention. Furthermore, some of the provisions of the 1952 Arrest Convention had become out of date, requiring amendment, while others were considered ambiguous, giving rise to conflicting interpretations (Tony Kegels, ‘Arrest of Ships: The End of Uniformity?’ in Robert Wijffels and Marie-Paule Serck (eds), Liber amicorum Robert Wijffels (ETL 2001) 118). The 1999 Arrest Convention (International Convention of 12 March 1999 on Arrest of Ships, 2797 UNTS I-44196) was adopted by consensus in Geneva on 12 March 1999, at the Joint United Nations/IMO Diplomatic Conference, under the auspices of UNCTAD. It is only recently though – namely, on 14 September 2011 – with the accession thereto of the tenth state, →Albania, that such convention entered into force pursuant to its art 14. The number of its ratifications/accessions amounts at present to ten (→Albania, Algeria, Benin, →Bulgaria, →Ecuador, →Estonia, →Latvia, Liberia, →Spain and the Syrian Arab Republic: cf the website <https://treaties.un.org>, last accessed March 2014). Since Spain has denounced the 1952 Arrest Convention on 28 March 2011 with effect from 28 March 2012, the following states are currently contracting parties to both Arrest Conventions: Algeria, Benin, Latvia and the Syrian Arabic Republic (cf <http://r0.unctad.org>).

p. 135A brief overview will be provided of the rules set out by each of the said conventions in order to highlight the key differences existing among them as regards, on the one hand, the substantive regulation of the arrest procedure, and, on the other, the criteria governing the recognition of jurisdiction.

IV. The scope of application of the 1952 and 1999 Arrest Conventions

As said, the objective of the 1952 Arrest Convention was to harmonize, through the adoption of uniform rules, the arrest procedures as were respectively framed within common and civil law systems.

To attain such a result, the 1952 Arrest Convention attempts to strike a compromise between the aforesaid opposite approaches, on the one hand, by introducing a harmonized definition (i) of the claims whereupon arrest of ships may be grounded and (ii) of the concept of arrest of ships itself; on the other hand, by recognizing forum arresti as an acceptable unified jurisdictional criterion with regard to the merits of the claim, subject to certain conditions. Thus, according to the 1952 Arrest Convention, arrest of ships (i) is possible only to the extent that the claim is of a maritime nature and is included in the closed list provided for by art 1(1)(a)–(q); (ii) pursuant to art 1(2), has to be intended only as an interim measure of protection requested before the claim is heard on the merits.

The Convention’s provisions delimiting its scope of application are to be found in arts 2 and 8. According to the first paragraph of art 8 and to art 2, the 1952 Arrest Convention is applicable to any ship flying the → flag of one of the contracting states provided that the claim grounding the request for arrest is of a maritime nature and is included among those listed by art 1(1)(a)–(q). Article 8(2) extends the application of the 1952 Arrest Convention also to ships flying the flag of a non-contracting state, save that for such ships the arrest is permissible irrespective of the nature of the claim, in accordance with the relevant rules of the →lexfori (as regard to →Italy, cf, more recently, App Genova, 12 February 2000, Morsviazputnik Satellite Communications v Azov Shipping Company – The ‘Yuriy Dvuzhilniy’ [2001] Dir Marit 1113; App Roma, 15 July 2003, Martingale Trading Corp. v Azovske Morske Paroplavstvo – The ‘Mekhanik Yuzvocich’ [2005] Dir Marit 200). This means that in civil jurisdictions where, as seen, arrest is a ‘conserving measure’ which may be executed against any asset of a debtor as security for any claim, ships flying the flag of a non-contracting state may, subject to the conditions set forth by the →lexfori, be arrested in respect of any claim against the owner (Francesco Berlingieri, ‘The Scope of Application of the 1952 Convention on the Arrest of Ships’ [1991] J.Mar.L.&Com. 405, 407–408).

Two exceptions are envisaged with regard to the general rule of arts 2 and 8(1). According to art 8(3) the State Parties may exclude from the benefits of the 1952 Arrest Convention any person who does not, at the time of the arrest, have their habitual residence or principal place of business (→Domicile, habitual residence and establishment) in a State Party. Furthermore, pursuant to art 8(4), the application of the 1952 Arrest Convention is excluded when the court of a State Party is faced with a request for arrest concerning a ship of her flag within her jurisdiction by a person who has his or her habitual residence or principal place of business in that state. The exclusion is directed towards cases where there are no foreign elements, ie purely domestic cases (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 412).

As mentioned, the 1952 Arrest Convention provides for a uniform notion of arrest of ship by conceptualizing it as an interim measure of protection. This means that the scope of the 1952 Arrest Convention does not entail enforcement proceedings, irrespective as to whether the seizure of a ship is effected on the basis of a judgment or any other order issued by the court.

Eventually, art 6(2) states that the law of the forum applies to all procedural matters entailed by arrest (→Proceedings, law governing). Even though such a provision should be read as including only national rules of an intrinsically procedural nature, ie those to be followed in order to apply for obtaining the arrest, the courts of many State Parties have interpreted it as encompassing also national criteria to assess such application. This approach implies that national courts take recourse to their internal law criteria to solve issues such as whether it is necessary for the claimant to prove the urgency of the measure (periculum in mora) and/or to p. 136prove a reasonable prospect of success on the merits of the case (fumus boni iuris), thus necessarily jeopardizing the harmonization purposes of the 1952 Arrest Convention (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 58–61).

The 1999 Arrest Convention extends its scope of application to every ship within the jurisdiction of any State Party, regardless of their flag. Thus, according to new art 8(1), the Convention’s provisions shall apply to any ship, whether or not flying a →flag of a State Party. The effect of this seems to be that under the new regime the assertion of maritime claims enumerated in art 1(1) becomes the sole basis upon which the right to arrest a ship arises.

The definition of maritime claims has also undergone some amendments: not only have some of the claims already included in the 1952 Arrest Convention been reworded, but new claims have also been added to the list embodied in art 1(1) (Francesco Berlingieri, ‘The 1952 and 1999 Arrest Conventions: A Comparison’ [2012] Dir Marit 367, 371–83). This resulted in an enlargement of such claims, which from the 17 in the 1952 Arrest Convention have now become 22. The new claims are for damage or threat of damage to the environment; port dock harbour dues and charges; insurance premiums in respect of the ship; any commissions, brokerages, or agency fees in respect of the ship; cost and charges of wreck removal. As in the previous Convention, such a list has to be deemed closed and exhaustive.

Article 8(6) of the 1999 Arrest Convention maintains the exclusion from its scope of application of the purely domestic cases already foreseen by art 8(4) of the 1952 Arrest Convention. As remarked by some authors, though, such a choice should have been avoided as the final aim of the Convention to achieve uniformity of application of its substantive rules on arrest could have been better attained by including both international and domestic cases within their scope of application (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 316).

Unlike its predecessor, nonetheless, the 1999 Arrest Convention sets out more clearly the terms of its relationship with international conventions providing for limitation of liability, stating in art 8(5) that none of its provisions shall affect the application thereof.

By establishing that the 1999 Arrest Convention ‘shall not affect the power of any State or Court to make the orders affecting the totality of a debtor’s assets’, moreover, art 8(4) of the 1999 Arrest Convention refers to the possible conflict between the right of arrest under the Convention and insolvency proceedings. Such conflict would occur within the EU in connection with the Insolvency Regulation (Regulation (EU) No 2015/868 of 20 May 2015 on insolvency proceedings [2000] OJ L 160/1; Francesco Berlingieri, ‘The 1952 and 1999 Arrest Conventions: A Comparison’ [2012] Dir Marit 367, 370). Indeed, it has been on the basis of the Insolvency Regulation that the courts of some contracting states, namely →Italy and →France, have rejected the application for the arrest of ships involved in either a preliminary insolvency proceeding (Trib Venezia, 24 February 2011, First Cruise Corp v Dolphin Maritime Ltd And Norsk Tillitsmann SA – The “Delphin” [2011] Dir Marit 622) or a concordat preventif commenced in another state (App Aix-en-Provence, 29 June 2011, Puglia Navigazione v Cambiaso & Risso [2012] DMF 131).

V. The substantive rules governing arrest under the 1952 and 1999 Arrest Conventions

As mentioned, pursuant to art 1(2) of the 1952 Arrest Convention arrest has to be intended as a provisional and protective measure (→Provisional measures) requested before the claim is heard on the merits. Accordingly, art 3(1) states that the claim underpinning the request for arrest must relate to a ‘particular ship’. In other words, for the right to arrest to arise it does not suffice that the ship is the property (→Property and proprietary rights) of the defendant to the action; it must also be identifiable as the ship in connection with which the claim arose (Owners of Cargo Lately Laden on Board the MV Erkowit v Owners of the Eschersheim (The Eschersheim, the Jade and the Erkowit) [1976] 2 Lloyd’s Rep 1).

As outlined in doctrine, though, art 3(1) does not mention the two normal conditions that are required for a ship to be arrested, namely that the ship (i) must be owned at the time the maritime claim arose by the person liable for the claim and (ii) must still be owned by that person when the arrest is made, except that that requirement may be inferred from the so-called ‘sister ship provision’, according to which sister ships are arrestable if owned by the person p. 137who was, at the time when the claim arose, the owner of the ‘particular ship’. Nor does art 3(1) make any reference to claims secured by maritime liens, even though according to some authoritative doctrinal opinion the reference made by the initial words of such provision to art 9 should be read as excluding the claims in question from the scope of the Convention (Francesco Berlingieri, ‘The 1952 and 1999 Arrest Conventions: A Comparison’ [2012] Dir Marit 367, 385).

As said, art 3(1) of the 1952 Arrest Convention extends the right of arrest to ships other than that in respect of which the claim arose, provided that such ships are in the same ownership. Pursuant to the norm in question, the right to arrest a sister ship is granted as an alternative (Owners of the Monte Ulia v Owners of the Banco (The Banco) [1971] 1 Lloyd’s Rep 49). In accordance with art 3(2), ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons. The implication of this provision is that the sister ship rule does not apply when the other ship is not fully owned by the same person or persons owning the ship in respect of which the maritime claim arose. It is however sufficient that the ship is fully owned by one or more, albeit, not all of the persons owning the ship in respect of which the maritime claim arose (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 159). Pursuant to art 3(1) the sister ship rule does not apply in respect of maritime claims enumerated in art 1(1)(o), (p) and (q), namely disputes as to title to ownership of any ship, disputes between co-owners of any ship as to the ownership, possession and employment of that ship and the mortgage and hypothecation of any ship. The reason underlying such an exception is that these maritime claims have to do with either proprietary interests in a ship or possession of the ship, ie with claims whose relationship with the ship differs to some extent from that of all other maritime claims.

The arrest of ships is eventually permitted by the 1952 Arrest Convention also in cases when the maritime claim in respect of which arrest is pleaded is raised against a person other than the shipowner. Indeed, pursuant to the first sentence of art 3(4) the right to arrest the ship in respect of which the claim arose is granted to the claimant who has a maritime claim against the demise charterer of the ship (ie the charterer that not only has the use of the vessel, but also engages its own crew: Simon Baughen, Shipping Law (Routledge 2009) 200). Such right is unrestricted and exists irrespective of the claim being secured by a maritime lien or not.

Furthermore, the last sentence of art (3)4 extends the right of arrest to any case in which a person other than the registered owner is liable in respect of a maritime claim relating to the ship. This provision has given rise to conflicts of interpretation (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 144), as it was uncertain whether to read it as allowing arrest (i) only in respect of claims against the demise charterer (as it is held in France, Trib De Commerce Nantes, 3 September 1991, United Shipping Arab Co v Blohm Voss – The ‘Trident Beauty’ [1991] DMF 726; App Aix-en Provence, 28 February 1996, Adriatica S.a.s. v TCE-Trans Containers Agency – The ‘Cordigliera’ [1997] DMF 594; App Rouen, 24 May 1995, Lamyra Marine Co Ltd v Cie Sénegalaise de Navigation Maritime – The ‘Saint Pierre’ [1999] DMF 489); (ii) also in respect of claims against the time charterer or even the voyage charterer or any person that is not the demise charterer irrespective of the existence of a lien in order to proceed with such arrest for claims against a person other than the owner (as it has been opined, eg, in Belgium, Ms ‘Omala’, Supreme Court, 10 May 1976, [1979–80] JPA 3; Ms ‘Heinrich’, 1 October 1993, [1993–94] RW 357; in Italy, Trib Bari, 26 November 1996, Les Abeilles Boulogne SA and Associazione Piloti Boulogne-sur-Mer v Medimare S.r.l. and International Traders Ferry [1998] Dir Marit 1218; Trib Genova, 19 October 2010, Alpha Trading c Venezia Shipping BV [2011] Dir Marit 222); (iii) in any event, irrespective of the person against whom the claim is made, under the condition that the claim be enforceable on the arrested ship (Francesco Berlingieri, ‘The 1952 and 1999 Arrest Conventions: A Comparison’ [2012] Dir Marit 367, 387).

Against this background, the main change brought about by the 1999 Arrest Convention is that the concept of personal liability of the shipowner whose vessel is arrested has been strengthened, leaving only a very limited category of claims where an arrest is possible even if the shipowner is not personally liable (art 3). Indeed, personal liability is the main criterion to indicate whether a ship can be arrested or not. Thus, according to art 3(1)(a) arrest is p. 138permissible of any ship in respect of which a maritime claim is asserted if the person who owned the ship at the time when the maritime claim arose is liable for the claim and is owner of the ship when the arrest is effected.

Some exceptions are nonetheless still provided for by the 1999 Arrest Convention with respect to the aforesaid general rule.

Paragraph 1(b) of art 3 reproduces the rule set forth by the first sentence of art 3(4) of the 1952 Arrest Convention, establishing that the arrest of a particular ship is permitted when the demised charterer of the ship at the time when the maritime claim arose is liable for the claim and is demise charterer or owner of the ship when the arrest is effected. Such provision has to be combined with art 3(3), whereby it is pointed out that the arrest of a ship which is not owned by the person liable for the claim shall be permissible only if under the law of the state where the arrest is applied for a judgment in respect of that claim can be enforced against the ship by judicial or forced sale of that ship.

It follows from the above that the 1999 Arrest Convention has endorsed the restrictive interpretation of the last sentence of art 3(4) of the 1952 Arrest Convention, whereby, as seen, such sentence should be read as permitting arrest of ships with respect to maritime claims arisen against the charterer only to the extent that such claims are secured by mortgage or lien (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 150).

In any event, the last sentence of art 3(4) of the 1952 Arrest Convention has been erased from the corresponding provision of the 1999 Arrest Convention. Thus, under the 1999 Arrest Convention the problem of arrest with regard to maritime claims arisen against a person other than the shipowner arises only with regard to the demise charterer (Francesco Siccardi, ‘Il debitore, la nave ed il sequestro. Dalla Convenzione del 1952 alla Convenzione del 1999’ [2011] Dir Marit 1153, 1165). Some scholars, nonetheless, have observed that such changes far from having settled the debate on the international level for good, have also left it open on the domestic one, with further interpretative questions still to be answered (Ignacio Arroyo Martinez, ‘Implementation of the Arrest Convention’ [2007] Dir Marit 681, 690; contra, Francesco Berlingieri and Luigi Rovelli, ‘La nuova Convenzione sul sequestro di navi’ [2000] Dir Marit 1, 23).

Two other exceptions to the general rule of personal liability are envisaged by art 3(1)(c) and (d), whereby, respectively, the arrest is permissible when the maritime claim ‘is based upon a mortgage or a “hypothèque” or a charge of the same nature on the ship’ and when ‘the claim is against the owner, demise charterer, manager or operator of the ship and secured by a maritime lien which is granted or arises under the law of the state where the arrest is applied for’.

As regards the rule contemplated by art 3(1)(d), suffice it to observe that it derogates to the general rule of personal liability to the extent that an hypothèque has been granted by a person other than the debtor. On the contrary, art 3(1)(e) allows for arrest in respect of maritime claims against persons other than the shipowner, namely the demise charterer, the manager or the operator of the ship, insofar as such claims are secured by maritime liens. It follows from the above that no right of arrest is granted in respect of claims against the time and voyage charterer, despite their being secured by a maritime lien (Francesco Berlingieri and Luigi Rovelli, ‘La nuova Convenzione sul sequestro di navi’ [2000] Dir Marit 1; Francesco Siccardi, ‘Il debitore, la nave ed il sequestro. Dalla Convenzione del 1952 alla Convenzione del 1999’ [2011] Dir Marit 1153, 1165–6).

The ‘sister ship rule’ is maintained, even though the 1999 Arrest Convention clarifies that (i) the owner of the ship whose arrest is requested must be liable for the claim and (ii) the requirement of identity of ownership does not exist anymore because it suffices that the owner of the ship whose arrest is requested had been the demise, the time or voyage charterer of the ship in respect of which the maritime claim has arisen (Francesco Berlingieri, ‘The 1952 and 1999 Arrest Conventions: A Comparison’ [2012] Dir Marit 367, 387). Since art 3(2) of the 1952 Arrest Convention has not been reiterated, a definition lacks, in the 1999 Arrest Convention, the conditions under which a ship must be considered as ‘owned’ by the owner of the particular ship. The solution of the question is therefore a matter for national courts to be dealt with on the basis of domestic rules (Francesco Siccardi, ‘Il debitore, la nave ed il sequestro. Dalla Convenzione del 1952 alla Convenzione del 1999’ [2011] Dir Marit 1153, 1167).

VI. p. 139Jurisdiction, recognition and enforcement of foreign judgments in the 1952 and 1999 Arrest Conventions

As it stems from the preparatory works of the 1952 Arrest Convention, the question whether the courts of the country in which the arrest is made should have jurisdiction to assess the case upon its merits was one of the most seriously debated since the beginning of the 20th century (cf CMI, The travaux préparatoires of the International Convention for the Unification of Certain Rules of Law with Respect to Collision between Vessels, 23 September 1910, and of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships, 10 May 1952, Antwerp (CMI 1997) 414).

The legal system of the United States (→USA), Scotland, the →Netherlands, →Belgium and England (→United Kingdom) contemplated arrest as a jurisdictional ground on the merits, while the ones of →France and →Italy clearly did not. As anticipated, the compromise solution reached by the 1952 Arrest Convention was to admit jurisdiction based on arrest in a limited number of cases. These cases were chosen according to two different private international law approaches: the first one based on the relevance of the law of the forum so as to allow legal systems (such the English and the Scottish ones) providing for jurisdiction grounded on the arrest of the ship to maintain it; the second one founded on the identification of a particular →connecting factor which constituted the substantive link between the forum and the dispute (Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 and 1999 Arrest Conventions (4th edn, Informa 2006) 282–90).

As a result, art 7(1) of the 1952 Arrest Convention recognizes jurisdiction on the merits to the courts of the country where the arrest is made if the domestic law of that country gives jurisdiction to such courts or if such courts appear to be connected to the dispute by virtue of six different connecting factors. The first two are cumulative connecting factors, ie need to be present in order to constitute substantial connection with the forum. These factors are (i) the habitual residence or principal place of business of the claimant, and (ii) the place where the claim arose, if that happens to be in the country in which the arrest was made.

The third jurisdictional link is constituted by a →connecting factor peculiar to the arrest of ships, ie the circumstance that the claim concerns the voyage of the ship during which the arrest was made. Finally, the last three connections pertain to the nature of the claim in cases of collision, →salvage, mortgage or hypothecation of the ship arrested.

The result of this compromise solution has been evaluated as non-satisfactory due to the fact that the degree of harmonization sought at the time of its adoption has not been achieved. This opinion relies on the consideration that, by allowing common law countries to retain their own system while introducing the forum arresti in the civil law countries only for a limited type of claims, art 7 has strengthened the imbalance between the different approaches followed in such countries (Joint UNCTAD/IMO Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (ed), Report of the Joint UNCTAD/IMO Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects on Its 7th Session, Held at the Palais Des Nations, Geneva, from 5 to 9 December 1994 (UN 1994) Report-Annex I; Joint UNCTAD/IMO Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (ed), Report of the Joint UNCTAD/IMO Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects on Its 9th Session, Held at the Palais Des Nations, Geneva, from 2 to 6 December 1996 (UN 1996) Report-Annex II). Criticisms have been addressed also towards the connecting factors set forth by such a norm, given that they add complexity to the determination of jurisdictional grounds and operate through a combination of factual circumstances and legal concepts that render the process of establishing jurisdiction on the merits cumbersome (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 205).

In line with the latter trends in jurisdictional issues, art 7 of the 1999 Arrest Convention plainly recognizes the jurisdictional power of the forum arresti without conditions. Moreover, the 1999 Arrest Convention endorses →party autonomy (choice of forum agreement or arbitration agreement) as the main jurisdictional basis (→Jurisdiction, foundations) taking priority over the jurisdiction of the forum arresti. As observed by scholars, the reasons for such a novelty had to do with practicalities rather than with abstract considerations, as it was perceived as a drawback to uniformity to allow for p. 140different jurisdictional systems depending on the different national laws of the contracting parties (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 206).

In other words, the 1999 Arrest Convention has adopted a simpler solution, namely that of recognizing the jurisdiction on the merits to the courts of the state in which the arrest is made save a different agreement of the parties and the refusal of such courts to exercise jurisdiction.

A further innovation introduced by the 1999 Arrest Convention consists of the inclusion of discretionary power in the exercise of jurisdiction by the courts if such discretion is foreseen by the law of the forum arresti. This implies that courts are enabled to decline jurisdiction on the basis of the →forumnon conveniens doctrine if such a doctrine is contemplated by the jurisdictional rules of the forum arresti. However, this permission operates under the condition that a court of another state accepts jurisdiction. The adoption of this dual formula by the 1999 Arrest Convention has been addressed by some scholars as an advancement at the international level since it represents ‘the golden mean between the competing values of certainty and flexibility’ (Veronica Ruiz Abou-Nigm, The Arrest of Ships in Private International Law (OUP 2011) 207 quoting Symeon C Symeonides, ‘The American Revolution and the European Evolution in Choice of Law: Reciprocal Lessons’ [2008] Tul.L.Rev. 1741, 1782).

Unlike its predecessor, art 7 of the 1999 Arrest Convention also contains some provisions concerning recognition and enforcement of foreign judgments (→Recognition and enforcement of judgments (civil law); →Recognition and enforcement of judgments (common law)). Pursuant to art 7(5) it is established that final decisions resulting from proceedings on the merits before a competent court or an arbitral tribunal (→Arbitration, maritime) shall be recognized and given effect on condition that (i) the defendant has been given reasonable notice of such proceedings and a reasonable opportunity to present the case for the defence; (ii) such recognition is not against →public policy (ordre public). Article 7(6) further clarifies that the provisions of para 5 ‘shall not restrict any further effect given to a foreign judgment or arbitral award under the law of the state where the arrest of the ship was effected or security provided to obtain its release’.

The arrest of ships has survived the re-examination of jurisdictional bases in the European judicial area as a basis of ‘special jurisdiction’, limited to a close list of maritime claims, via the lex specialis provision currently included in art 71 of the Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12/1) (→Brussels I (Convention and Regulation)) which, by January 2015, shall be superseded by art 71 of the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in commercial matters [2012] OJ L 351/1). According to such norms, the EU Regulation ‘shall not affect any convention to which Member States are parties and which in relation to particular matters govern jurisdiction or the recognition or enforcement of judgments’.

The wording of these provisions mirrors that of the corresponding rule contained in the Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1), namely art 57, save that art 71 limits its scope of application to the conventions concerning particular matters to which Member States have become parties before the adoption of the Regulation itself (Sergio Maria Carbone, Chiara E Tuo Il nuovo spaziogiu ditiario europeo in materia civile e connerciale (Giappichelli 2016)). In consideration of the entry into force of the 1999 Arrest Convention having taken place after the adoption of the EU rules, art 71 does not apply to such a convention. Thus, unless the EU either (i) accedes to the 1999 Arrest Convention, as it has recently done for the Athens Convention 1974 (Athens Convention of 13 December 1974 relating to the carriage of passengers and their luggage by sea, 1463 UNTS 20) as amended by the Athens Convention 2002 (Athens Convention of 1 November 2002 relating to the carriage of passengers and their luggage by sea, IMO Doc LEG/CONF.13/20 (19 November 2002)), or (ii) provides Member States with a specific authorization to ratify the 1999 Arrest Convention, the lex specialis provision included in art 71 shall not operate with regard to such a convention (Chiara E Tuo, ‘Giurisdizione ed efficacia delle decisioni sul sequestro conservativo: tra regolamento p. 141Bruxelles I e convenzioni internazionali’ [2011] Dir Marit 1220, 1229–32).

On the contrary, it is on the basis of the aforesaid provision, to be read in the light of the related European Court of Justice (ECJ) jurisprudence, that the terms of the relationship between the 1952 Arrest Convention and the EU Regulation have to be shaped. Indeed, the first case submitted to the ECJ for the interpretation of art 71 (Case C-406/92, The owners of the cargo lately laden on board the ship “Tatry” v the owners of the ship “Maciej Rataj” [1994] ECR I-5439) involved the question whether the court of a Member State (namely, England) could be filed, on the basis of the 1952 Arrest Convention, with a claim that had already been submitted, in accordance with the Brussels I Regulation, before the court of another Member State (namely, the Netherlands). The ECJ, after having ascertained that the 1952 Arrest Convention did not provide any discipline as regards lis pendens (→Lis alibi pendens), concluded that the case should have been settled in accordance with the relevant rules set forth by Brussels I and that, as a consequence, the jurisdictional criteria provided for by the 1952 Arrest Convention could not be applied. The rationale underlying such a conclusion, as clearly arises also from the subsequent jurisprudence of the ECJ (cf Case C-533/08, TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-4107; Case C-452/12, Nipponkoa Insurance Co (Europe) Ltd v Inter-Zuid Transport BV [2014] OJ C 52/19) is that according to art 71 international conventions in particular matters may take precedence over the EU Regulation provisions only to the extent that they provide for an exhaustive discipline of jurisdiction and that, additionally, such a discipline does not conflict with the fundamental principles underlying the Brussels I regime.

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