10th - Ships Arrest in Prctice - 2016

Ship Arrests
in Practice
10th Ed.
86 jurisdictions covered
by the ShipArrested.com members
2016
NetCorporate Manager
FOREWORD
Welcome to the tenth edition of Ship Arrests in Practice.
This publication guides you through the common issues arising from a ship arrest and
offers the necessary information to unravel the different procedures in 86 countries
around the world.
Our publication has become today a must for the maritime industry. The “Ship Arrests in
Practice” with its yearly updates is the reference tool when assisting the community in the
understanding of the procedures and practical issues arising from the arrest and release
of a ship around the globe.
The aim of our network is to defend your interests in any ship arrest procedures.
Thanks are due to the members-contributors of the www.shiparrested.com network as

well as to P&I clubs and cargo insurers for their continuous stimuli in sharing knowledge
within the industry.
The law is stated as at 1st December 2015.
Valentine de Callatay
Managing Editor
Valentine.deCallatay@shiparrested.com
N.B.: The information contained in this book is for general purposes, providing a brief overview of the require-
ments to arrest or release ships in the said jurisdictions, and do not contain legal or any type of professional
advice. For a detailed synopsis, please contact the members’ law firms.
2
Click on the following to learn
how to arrest / release in...
Finland
Norway Estonia
Latvia
Scotland Denmark Lithuania
England & Wales
Netherlands Poland
Ireland Belgium Germany Ukraine
France Austria Romania
SloveniaBulgaria
Portugal Italy Croatia Serbia
Spain Montenegro
Malta Greece
Gibraltar Tunisia Turkey
Cyprus
Israel
Morocco Jordan
Egypt
Saudi Arabia
Iceland
Faroes
Canada Russia
Georgia
USA Korea
Iraq China
Japan
Mexico Algeria Lebanon
Bahamas Kuwait Hong Kong
UAE Qatar Taiwan
Costa Rica Dominican Rep. Senegal Oman India Thailand
Puerto Rico
Panama Curaçao Nigeria Vietnam Philippines
Benin Cambodia
Venezuela Ivory Coast Ghana Sri Lanka Malaysia
Colombia
Ecuador Cameroon Singapore
Peru
Brazil
Fiji
Australia
South Africa
Chile
Argentina
New Zealand
3
CONTENTS
FOREWORD 2
CONTENTS 4
QUESTIONNAIRE 5
Ship Arrest in
1. Algeria 6 44. Jordan 170
2. Argentina 9 45. Korea 173
3. Australia 12 46. Kuwait 178
4. Austria 17 47. Latvia 182
5. Bahamas 21 48. Lebanon 185
6. Belgium 24 49. Lithuania 188
7. Benin 28 50. Malaysia 191
8. Brazil 32 51. Malta 194
9. Bulgaria 36 52. Mexico 198
10. Cambodia 40 53. Montenegro 202
11. Cameroon 44 54. Morocco 206
12. Canada 48 55. Netherlands 210
13. Chile 52 56. New Zealand 214
14. China 56 57. Nigeria 218
15. Colombia 61 58. Norway 222
16. Costa Rica 64 59. Oman 226
17. Croatia 67 60. Panama 229
18. Curaçao 71 61. Peru 234
19. Cyprus 74 62. Philippines 237
20. Denmark 78 63. Poland 240
21. Dominican Rep. 82 64. Portugal 243
22. Ecuador 86 65. Puerto Rico 247
23. Egypt 91 66. Qatar 250
24. England & Wales 95 67. Romania 254
25. Estonia 99 68. Russia 258
26. Faroes 106 69. Saudi Arabia 263
27. Fiji 110 70. Scotland 266
28. Finland 114 71. Senegal 270
29. France 117 72. Serbia 273
30. Georgia 118 73. Singapore 277
31. Germany 121 74. Slovenia 280
32. Ghana 125 75. South Africa 283
33. Gibraltar 129 76. Spain 288
34. Greece 132 77. Sri Lanka 292
35. Hong Kong 136 78. Taiwan 296
36. Iceland 140 79. Thailand 300
37. India 144 80. Tunisia 303
38. Iraq 148 81. Turkey 306
39. Ireland 151 82. UAE 311
40. Israel 154 83. Ukraine 316
41. Italy 158 84. USA 321
42. Ivory Coast 163 85. Venezuela 326
43. Japan 167 86. Vietnam 330
APPENDICES
International Convention Relating to the Arrest of Sea-Going Ships, 1952 334
International Convention on Arrest of Ships, 1999 338
International Convention for the unification of certain rules of law relating to maritime liens and mortgages, 1926 343
International Convention on maritime liens and mortgages, 1993 347
© Copyright 2016 © Copyright of this edition: Net Corporate Manager S.L.
All rights reserved. No part of this publication may be reproduced or transmitted in any forms or by any means, without the prior
4 permission of the authors, in accordance with the International Copyright Law.
SHIP ARREST QUESTIONNAIRE
Overview
1. Please give an overview of ship arrest practice in your country.
Applicable Laws
2. Which International Convention applies to arrest of ships in your country?
3. Is there any other way to arrest a ship in your jurisdiction?
4. Are these alternatives e.g. saisie conservatoire or freezing order?
Claims subject to ship arrest

5. For which types of claims can you arrest a ship?
6. Can you arrest a ship irrespectively of her flag?
7. Can you arrest a ship irrespectively of the debtor?
8. What is the position as regards sister ships and ships in associated ownership?
9. What is the position as regards Bareboat and Time-Chartered vessels?
Arrest Procedure
10. Do your Courts require counter-security in order to arrest a ship?
11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?
12. Does you country recognise maritime liens? Under which International Convention, if any?
13. What lapse of time is required in order to arrest a ship since the moment the file
arrives to your law firm?
14. Do you need to provide a POA, or any other documents of the claim to the Court?
15. What original documents are required, what documents can be filed
electronically, what documents require notarisation and/or apostille, and when
are they needed?
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?
Release Procedure
17. What is the procedure to release a ship from arrest?
18. What type of security needs to be placed for the release?
19. Does security need to cover interest and costs?
20. Are P&I LOUs accepted as sufficient to lift the arrest?
21. How long does it take to release the ship?
22. Is there a procedure to contest the arrest?
Miscellaneous
23. Which period of time will be granted by the Courts in order for the claimants to
take legal action on the merits?
24. Do the Courts of your country acknowledge wrongful arrest?
25. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?
26. Is it possible to have a ship sold pendente lite; if so how long does it take?
5
SHIP ARREST IN ALGERIA
By Dr. D. Ben Abderrahmane*
BEN ABDERRAHMANE & PARTNERS
ba@benlawyers.com
www.benlawyers.com
26, boulevard Zirout Youcef, 16035 Algiers
Tel: +213 21 74 91 32 / +213 661 80 30 14
Fax: +213 21 74 89 27

Algeria has a long tradition in maritime law, including maritime arrests. Algerian law is generally
not restrictive in allowing conservatory and provisional measures. Algeria, and most specifically
the ports of Algiers, Oran, Annaba as well as the oil and gas terminal of Arzew and Skikkda has
a favourable reputation for being a convenient place to arrest ships.

Algeria is since August 1964 member of the Brussels Arrest convention of 1952. Some general
principles of the convention have been incorporated in the Algerian Maritime Code (hereafter
called CMA).

In practice for the Algerian Courts, the provision of the CMA and the provisions of the Code
of Civil procedure (hereafter called CPC) remain the major source of law for the arrest of ships.

No.

A ship can be arrested to secure a maritime claim Algerian law provides an open list, which may
include claims of maritime nature like insurance premiums. A request to obtain authorisation
to arrest a sea-going vessel has to be presented before the President of the court which has
jurisdiction for the port of call. It is a unilateral request, and the President immediately grants or
rejects authorisation. In theory, according to the CPC, the request can be submitted at any time,
even out of court hours and during the weekend (in Algeria Friday & Saturday). In practice, the
request can be submitted only from Sunday to Thursday.

In theory there are two regimes:
(i) A sea-going ship, flying the flag of a contracting State can be arrested in an Algerian port as a
security for a maritime claim, as specified in littera a to q of Article 1.1 of the Brussels convention
of 1952.
(ii) A sea-going ship, flying the flag of a non-contracting State can be arrested in an Algerian
port as a security for a maritime claim, as specified in Article 151 CMA. Pursuant to this provision
maritime claim means any claims arising out of a contract or an event in connection with the
operation or the management of the ship, any loss or damage caused by the ship due to its
exploitation. In practice, Algerian courts tend to apply the provision of Article 151 CMA without
differentiation.

The ship can be arrested even if the owner of the ship is not the debtor of the maritime claim.
The owner of the ship, in order to have his ship released from arrest, has to give a guarantee for
the payment of the claim of the author of the arrest. This means that the owner of the ship will
have to guarantee the payment of the claim, even if a third person (charterer, issuer of the Bill
of Lading) is the debtor toward the arresting party.
6
8. What is the position as regards siter ships and ships in associated ownership?
Pursuant to Article 154 CMA, it is possible to arrest another ship, which is owned by the person
who, at the time when the maritime claim arose, was the owner of the particular ship in respect
of which the maritime claim arose.
However, to the difference of the jurisprudence of several European States, Algerian courts do
not authorise the arrest of a ship owned by another company than the debtor of the claim. This
even if the claimant has sufficiently established that the separate corporate personality is only a
fiction that does not correspond to reality.

A vessel that is in the ownership of the charterer can be arrested for a maritime claim
against a time charterer.

Algerian law impose on the claimant the deposit of a counter-security of ten per cent (10 %)
of the amount of the maritime claim; to cover costs, charges, damages, fees or other expenses
deriving from a potential wrongful arrest.
However the companies incorporated in countries that have signed a convention of judicial
cooperation in civil and commercial matters with the Algeria are exempted from this require-
ment to provide security, are exempt from this obligation of companies incorporated the fo-
llowing countries: Belgium, Bulgaria, China, Italy, Portugal, Romania, Spain, United Arab Emira-
tes, United Kingdom, Vietnam.
No.
Yes.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to
your law firm?
In practice, two days. Please note that Algeria does not have the universal week end. The Alge-
ria week end is Friday & Saturday, during these days the court is closed.
No power of Attorney is requested from the attorney representing the claimant.
15. What original documents are required, what documents can be filed electronically, what
documents require notarisation and/or apostille, and when are they needed?
The documents needed to arrest a ship are those evidencing the claim (such as contracts, bills
of lading, letters requesting payments, protest or interim report of a surveyor, etc. Since the Pre-
sident will control very accurately the existence of a maritime claim, it is highly recommended to
have as much documentary as possible to prove the allegad maritime claim.
In the first stage of the arrest procedure no original documents are needed.
The above mentioned documents can be filed electronically, notarisation and/or apostille is not required.
The documents shall be submitted along with their translation in Arabic.
If the translation is made outside Algeria the signature of the translator has to be authenticated
by a public authority of his country and by the Algerian embassy territorially competent. The
translation can be made in Algeria by an official translator; in that case no authentication is
required.
Yes.

To obtain a ship’s release, the relevant party must file for release with the interim relief application.
If the ship provides payment or otherwise satisfies maritime claims, and the courts accept this
payment, then the court issues an order of release from arrest, which is delivered by a bailiff.
7
If there is a dispute as to what a sufficient payment is, then the courts will often make a decision.

The security for the release shall be agreed upon by the parties. If there is a dispute as to the
security, then the courts may make a decision.
This issue shall be agreed upon by the parties. If there is a dispute as to the interest and costs,
then the courts may make a decision, in such cases the court may not consider the costs and the
interests but only the amount of the unpaid maritime debt justifying the arrest..

If the parties agreed on payment / security, it will take around three working days to release
the ship.

The arrest can be contested with an interim relief application in the court.
23. Which period of time will be granted by the Courts in order for the claimants to take legal
action on the merits?
Pursuant to Article 350 CPC, the claimant must institute a legal proceeding on the merits befo-
re the competent court, within 15 days from the day the Ordinance authorising the is issued,
otherwise the arrest will be held null and void.

The arrestor bears the risk of arresting the ship. If he loses the contradictory summary procee-
dings or the case on the merits, his arrest may be considered wrongful and he could have to
indemnify all costs and damages caused to the ship, as a result of such wrongful arrest.
However in practice, Algerian Judges are reluctant to countenance a claim for compensatory
damages for wrongful arrest unless the bad faith or malice of the arrestor is established.
Algerian Courts do not acknowledge the piercing and lifting of the corporate veil.
It is possible to have a ship sold pendente lite; the timeframe depends on the circumstances of
the case.
*Dr. Dhaman BEN ABDERRAHMANE is the Founder of the law firm Ben Abderrahmane & Partners, which is one of the leading Alge-
rian law firms; active in Algeria maritime law. Our practice focuses on arresting vessels in Algeria Jurisdiction.
Education: University of Frankfurt/Main (Germany); University of Paris 2 (Panthèon-Assas, France), University of Munich (Germany);
Max Plank Institut für Ausländisches und Internationales Privatrecht, Hamburg (Germany; University of Paris 1 (Panthèon-Sorbone, France.
Career: Attorney at law, since 1985. Admitted in Algeria and in France; International Arbitrator.
8
SHIP ARREST IN ARGENTINA
Francisco J. Venetucci*
Venetucci & Asociados
fjv@venetucci.net
www.venetucci.net
Belgrano 253, S2220CNC - San Lorenzo
Santa Fe - Argentina
Mobile: +54 9 341 5615441
Tel/Fax: +54 3476 421556

Argentina is a friendly jurisdiction for ship arrest. Despite not being party to any international
treaty regarding ship arrest, Argentine legislation follows the 1952 arrest convention criteria.
The court fees and the cost of the counter-security could reach up to 5% of the amount clai-
med. Arrest orders are normally granted in a matter of hours.
Argentina did not ratify any arrest convention.
Ships can be arrested pursuant to Argentine legislation whichin turn follows mostly the
1952 Arrest Convention criteria.
Under Argentine law, it is possible to arrest by saisie conservatoire the particular ship with
which the contemplated action is concerned. Should the claimant seek a freezing order, the
general rules of law will apply and not the Navigation act.
Vessels can be arrested on the following grounds:
a. Maritime liens;
b. Maritime claims regarding debtsincurred in Argentina and in connection with the ship;
c. Claims regarding any debt where Argentine courts have jurisdiction.
Yes. Foreign flag vessels can be arrested. The flag will determine the characterisation of the
maritime lien.
Yes. Ships can be arrested irrespectively of the debtor when in rem proceeding was brought.
According to the Navigation Act, the claimant of a debt incurred in Argentina may arrest
either the particular ship in respect of which the maritime claim arose, or any other ship
which is owned by the person who was, at the time when the maritime claim arose, the ow-
ner of the particular ship. As regards associated ownership, ships shall be deemed to be in
the same ownership when all the shares therein are owned by the same person or persons.
In the case of a charter by demise of a ship, the charterer and not the registered owner is
liable in respect of a maritime claim relating to that ship; the claimant may arrest such ship
or any other ship in the ownership of the charterer by demise, but no other ship in the ow-
nership of the registered owner shall be liable to arrest in respect of such maritime claim.
9
According to the Navigation Act, the court may order counter-security.However, it could be
satisfied with a guarantee issued by a local insurer.
The proceeding does not differ.
Yes.Pursuant to the Navigation Act the characterisation of the maritime lien will be establis-
hed accordingto the law of the flag of the vessel.Furthermore, Argentina ratified the 1926
International Convention for the Unification of Certain Rules Relating to Maritime Liens and
Mortgages which stands above the navigation act.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives
to your law firm?
It would depend on the port but normally it is within the 24hrs. Courts dealing with maritime
cases are very expeditious, particularly in cases related to recoveries, and arrest orders are
granted in a matter of hours.
The Civil and Commercial Procedural Code requires a notarised PoA. However, there is no
need to hand in the original document at the time of the arrest submission. It can be submit-
ted at a later stage provided that the PoA is dated at the time of the submission.
It would depend on the groundsfor the arrest. In recoveries cases, copies of documents
-e.g. invoices- are normally accepted. The court may require the submission of the original
documents depending on the circumstances of the case. Argentina is party to The Hague
Convention Abolishing the Requirement of Legalisation for Foreign Public Documents.
Again, it would depend on the circumstances of the case. Argentina is party to the 1952
International Convention for the Unification of Certain Rules relating to Civil Jurisdiction in
Matters of Collision. Hence, in such a case, Argentine court would accept jurisdiction over
the substantive claim once the vessel has been arrested.
In cases other than collisions, the general rules of conflict of laws will apply.
Once the arrest is ordered, any interested party must appear in court to request the release
of the ship by providing enough security.
Cash deposit, banking guaranty or surety bonds and guarantees issued by local insurers are
the most common.
Yes.
Local courts are in occasion unfamiliar with documents such us LoU and LoI. Furthermore,
following the strict public policy in the field of insuring, surety bonds and guarantees issued
by local insurers are most advisable.
It would depend upon the circumstance of the case and the court. The court may request
prior approval of the security from the arrest petitioner since there is no rule addressing this
issue. Naturally, the ship could be released by mutual agreement of the parties. The whole
process could take 3/5 days.
10
In case of casualties and collisions in Argentina, the Coastguard may order the detention of
the vessel irrespective of any arrest order and the release would depend upon completion of
the safety measures ordered by the Coastguard.
The arrest procedure is carried out inaudita altera parte, hence, once the writ is served, time
would be best spent seeking the release of the ship and eventually claiming damages for
wrongful arrest.
The time bar to bring proceedings on the merits is 10 days.
Yes.
Yes. Courts have pierced and lifted the veil of the corporate in bankruptcy proceedings and
labour cases. However, courts are reluctant to do so in arrest proceedings involving one-ship
companies.
Yes. The court shall authorise the sale of the ship pendente lite in two scenarios. First, whe-
reas the ship-owner exercises its right to abandon the ship having fulfilled the limitation of
liability proceeding. Secondly, to avoid diminishing the value of the ship.
*Francisco J. Venetucci, LLM in Maritime Law at Southampton University, is a partner at Venetucci & Asociados. He was called to the
Rosario Bar Association and the Buenos Aires Bar Association. He has an extensive experience handling a broad range of disputes
involving the Parana River Waterway. Francisco has a particular interest in complex issues of conflict of laws and judicial cooperation.
He worked as an external consultant for local and international law firms. His firm specialized in Maritime Law and Commodity Trading.
11
SHIP ARREST IN AUSTRALIA
By Stephen Thompson, Partner*
K&L GATES
Stephen.Thompson@klgates.com
www.klgates.com
Level 31, 1 O’Connell Street
Sydney NSW 2000, Australia
Tel: +612 9513 23 69
Fax: +612 9513 2399

Initial ship arrest in Australia is fast, simple and inexpensive. All that is required is a Writ, Appli-
cation for Arrest Warrant, Arrest Warrant and a pro-forma affidavit. There is a filing fee and the
court requires a deposit on account of its costs and expenses of the arrest (insurance, travel
of court staff, vessel moves etc). Once the papers are filed a court officer or his/her delegate
attends on the vessel to effect the arrest. Officers are available to travel to remote ports for that
purpose.

None. Ship arrest is governed by the Admiralty Act 1988 (Cth) (the Act). However, there are
many similarities between the Act and the 1952 Convention.

While freezing orders – which could extend to a ship – are available from Australian courts, they
are considerably less attractive than ship arrest under the Admiralty Act. To obtain a freezing
order it is generally necessary to demonstrate a strong prima facie case, establish a balance of
convenience in favour of the injunction, and give an undertaking as to damages. None of those
measures is required for ship arrest.

See above.

Arrest is available for maritime liens, proprietary maritime claims and general maritime claims.
Maritime liens
Arrest can be made in respect of a proceeding on a maritime lien, which includes liens for:
(a) salvage;
(b) damage done by a ship;
(c) wages of the master or member of the crew; or
(d) master’s disbursements.
Until recently, Australia followed the majority decision in Halcyon Isle, to the effect that a lien
is a procedural right, the existence of which is to be determined in accordance with the law of
the lex fori. This long criticised view has now been departed from in a first-instance decision in
the Sam Hawke (September 2015), which held that “the minority view in Halcyon Isle should or
indeed must be preferred in Australia as it accords with the substantive nature of a maritime lien
as identified by the High Court of Australia in John Pfeiffer”. An application for leave to appeal
has been filed and is due to be heard in the first half of 2016.
Proprietary Maritime Claims

A proprietary maritime claim relates in broad terms to ownership of the vessel, and includes:
(a) a claim relating to:
(i) possession of a ship;
(ii) title to, or ownership of, a ship or a share in a ship;
(iii) a mortgage of a ship or of a share in a ship; or
12
(iv) a mortgage of a ship’s freight;
(b) a claim between co-owners of a ship relating to the possession, ownership, operation or
earnings of the ship;
(c) a claim for the satisfaction or enforcement of a judgment given by a court (including a court
of a foreign country) against a ship or other property in a proceeding in rem in the nature of a
proceeding in Admiralty; or
(d) a claim for interest in respect of a claim referred to in paragraphs (a), (b) or (c).
General Maritime Claims

A ship may be arrested for a general maritime claim, when the “relevant person” (see Question
8 below):
(a) was, when the cause of action arose, the owner or charterer of, or was in possession or
control of the ship; and
(b) is, when the proceeding is commenced, the owner of the ship
A general Maritime Claim is:

(a) a claim for damage done by a ship (whether by collision or otherwise); or
(b) a claim in respect of the liability of the owner of a ship arising under Part II or IV of the Protec-
tion of the Sea (Civil Liability) Act 1981 or under a law of a State or Territory that makes provision
as mentioned in subsection 7(1) of that Act; or
(b.a) a claim under:
(i) the applied provisions (within the meaning of the Protection of the Sea (Civil Liability for
Bunker Oil Pollution Damage) Act 2008); or
(ii) a law of a State or Territory of a kind referred to in subsection 10(1) of that Act; or
(c) a claim for loss of life, or for personal injury, sustained in consequence of a defect in a ship or
in the apparel or equipment of a ship; or
(d) a claim (including a claim for loss of life or personal injury) arising out of an act or omission of:
(i) the owner or charterer of a ship;
(ii) a person in possession or control of a ship; or
(iii) a person for whose wrongful acts or omissions the owner, charterer or person in possession
or control of a ship is liable; being an act or omission in the navigation or management of the
ship, including an act or omission in connection with:
(iv) the loading of goods on to, or the unloading of goods from, the ship;
(v) the embarkation of persons on to, or the disembarkation of persons from, the ship; and
(vi) the carriage of goods or persons on the ship; or
(e) a claim for loss of, or damage to, goods carried by a ship; or
(f) a claim arising out of an agreement that relates to the carriage of goods or persons by a ship
or to the use or hire of a ship, whether by charterparty or otherwise; or
(g) a claim relating to salvage (including life salvage and salvage of cargo or wreck found on
land); or
(h) a claim in respect of general average; or
(j) a claim in respect of towage of a ship; or
(k) a claim in respect of pilotage of a ship; or
(m) a claim in respect of goods, materials or services (including stevedoring and lighterage ser-
vices) supplied or to be supplied to a ship for its operation or maintenance; or
(n) a claim in respect of the construction of a ship (including such a claim relating to a vessel
before it was launched); or
(o) a claim in respect of the alteration, repair or equipping of a ship; or
(p) a claim in respect of a liability for port, harbour, canal or light tolls, charges or dues, or tolls,
charges or dues of a similar kind, in relation to a ship; or
(q) a claim in respect of a levy in relation to a ship, including a shipping levy imposed by the Pro-
tection of the Sea (Shipping Levy) Act 1981, being a levy in relation to which a power to detain
the ship is conferred by a law in force in Australia or in a part of Australia; or
(r) a claim by a master, shipper, charterer or agent in respect of disbursements on account of a
ship; or
(s) a claim for an insurance premium, or for a mutual insurance call, in relation to a ship; or
(t) a claim by a master, or a member of the crew, of a ship for:
13
(i) wages; or
(ii) an amount that a person, as employer, is under an obligation to pay to a person as employee,
whether the obligation arose out of the contract of employment or by operation of law, inclu-
ding the operation of the law of a foreign country; or
(u) a claim for the enforcement of, or a claim arising out of, an arbitral award (including a fo-
reign award within the meaning of the International Arbitration Act 1974) made in respect of a
proprietary maritime claim or a claim referred to in one of the preceding paragraphs; or
(v) a claim for interest in respect of a claim referred to in one of the preceding paragraphs.
As can be seen, the categories of general maritime claims are very wide, and substantially reflect
arrestable categories of claim in other major jurisdictions and under the Arrest Convention.

Yes.

Yes, although foreign states are immune from the jurisdiction of Australian courts, unless enga-
ged in commercial transactions.
There is a right to proceed against a sister ship (surrogate ship). A proceeding on a general ma-
ritime claim concerning a ship (Ship #1) can be commenced as an action in rem against some
other ship (Ship #2) if:
(a) a “relevant person” in relation to the claim was, when the cause of action arose, the owner
or charterer of, or was in possession or control of Ship #1; and
(b) that person is, when the proceeding is commenced, the owner of Ship #2. A “relevant per-
son”, in relation to a maritime claim, means a person who would be liable on the claim in a
proceeding commenced as an action in personam.

A ship can be arrested for a general maritime claim, when the “relevant person”:
(a) was, when the cause of action arose, the owner or charterer of, or was in possession or
control of the ship; and
(b) is, when the proceeding is commenced, the demise charterer of the ship. Arrest is not availa-
ble of a ship under time charter in respect of a liability of the time charterer.

No.
No.
Yes, see Question 5 above. Australia is not a party to any convention on maritime liens, and the
Act provides an inclusive definition.
your law firm?
Provided the required information is provided, the arrest papers can be prepared and filed on
the same day. The arrest itself is then in the hands of the court, and the time may depend on
the availability of court staff and possibly the location of the ship (eg if there is a need for the
Marshal to travel to a remote port). However, arrests can usually be effected within 48 hours.
No.
documents require notarisation and/or apostile, and when are they needed?
No original documents are required, and in the Federal Court, all documents are lodged elec-
tronically. Notarisation is not required.
14
Yes, although in some instances the court will recognise and enforce a valid forum clause if the
dispute is contractually based.

There are two ways to release a ship from arrest. The first is by application to the Registrar
which is the most frequent method of release. The second is by application to the Court.
Upon application to the Registrar (in accordance with the relevant form), a ship may be released
from arrest if the Registrar is satisfied that:
a) an amount equal to the amount claimed or the value of the ship or property has been paid
into court, whichever is less; or
b) a bail bond for the same amount as set out in a) above has been filed in the proceeding; or
c) the party who applied for the ship’s arrest has made arrangements for and consented to the
ship’s release.
Alternatively, upon application to the Court (in accordance with the relevant form), the Court
has the discretionary power to order the release of a ship from arrest on such terms that are just.
If the Registrar or Court orders the release of the ship, a notice will be given to the Marshal who
will then proceed to release the ship. The Marshal may refuse to release the ship if satisfactory
arrangements have not been made for payment of the Marshal’s costs and expenses in respect
of the custody of the ship while it was under arrest, including the costs and expenses associated
with its release.

In order for a ship to be released, the owner must provide the plaintiff with an alternative se-
curity for the claim. This can be in the form of a bank guarantee, a letter of undertaking from a
P&I club or insurer, a bail bond pursuant to Part VII of the Admiralty Rules 1988 (Cth), or cash
deposited with the Court.

A plaintiff is entitled to obtain security for its claim in an amount equal to:
(a) its “reasonably arguable best case” including interest up to the likely date of judgment and
its costs in the proceeding; or
(b) the value of the ship arrested,
whichever is the lesser.

Generally yes, especially in respect of International Group clubs. The court is entitled to be sa-
tisfied as to the adequacy and reliability of the security proposed.

An arrested vessel can usually be released within a day of security being provided and accep-
ted, or of an order of the court being made.

If the plaintiff’s claim does not fall within the requirements of the Admiralty Act 1988 (Cth)
(being sections 15-19 of the Act), the claim can be challenged in Court for lack of jurisdiction.
In addition, a claim can be made for damages for unjustified arrest by a person with an interest
in the ship (or who has suffered loss or damage as a direct result), when:
a) a party unreasonably and without good cause:
i. demands excessive security in relation to the proceeding; or
ii. obtains the arrest of a ship; or
b) a party or other person unreasonably and without good cause fails to give a consent for the
release of the ship.
Australian courts will apply any legislative and contractual limitation periods applicable to the
claim in question.
15
Yes.
Rarely.
Yes. The time period depends on how long the claimant takes to make an application, whether
the application is contested, and the availability of a reasonable market for the ship.
*Stephen leads K&L Gates’ Transport, Logistics & Defence Group and practices exclusively in the transport and logistics sectors.
Stephen’s practice covers a wide range of transport and logistics activities, including:
- mergers, acquisitions and disposals of companies, businesses and assets in the transport and logistics sectors;
- negotiating, drafting and advising on key operational agreements such as ship construction, sale and purchase agreements, char-
ters; and contracts of carriage, stevedoring agreements, distribution arrangements, labour supply contracts, and marine fuel supply
contracts;
- advising on risk management and contracting process improvement strategies;
- maritime and admiralty dispute resolution including ship arrest.
Stephen’s experience in relation to ship arrest includes acting in many of Australia’s most significant Admiralty cases, including the
“Iron Shortland”, the “Skulptor Konenkov”, the “Skulptor Vuchetich”, the “Ionian Mariner”, the “Zoya Kosmodemyanskya”, the “Turakina”
and the “Rangitata”.
16
SHIP ARREST IN AUSTRIA
By Dr. Friedrich Schwank, Managing Partner*
LAW OFFICES DR. F. SCHWANK
schwank@schwank.com
www.schwank.com
Stock Exchange Building, Wipplingerstrasse 34
A-1010 Vienna, AUSTRIA
Tel: +43 1 533 5704
Fax: +43 1 533 5706

Since 1918 Austria, is a landlocked country. Ship arrest is limited to inland waterways, in particular
the Austrian stretch of the Rhine-Main-Danube, Europe’s most important waterway connecting
the Atlantic with the Black Sea. The Austrian ports are as follows: Enns, Krems, Linz, and Vienna.
There is no developed maritime law practice in the courts. The arrest of inland waterway vessels
follows the general rules of the Enforcement Code. The arrest takes the form of a court order for
taking the vessel in the custody of the court. Vessels ready to sail must not be arrested.
The Enforcement Code provides for the attachment of a debtor’s assets in circumstances where
(i) either a judgment or an arbitral award are to be enforced or (ii) there is a risk that the debtor
removes, destroys, depletes or hides assets with a view to prevent the enforcement of a future
judgment or arbitral award.
In the latter case, such a risk is assumed in case the claim is against a non-resident debtor and
any future enforcement of a judgment or award would have to be carried out abroad. An inland
waterway vessel sailing under a non-Austrian flag owned or chartered by a non-resident debtor
would meet these criteria.
An application for the enforcement of a judgment or an award has to be filed with the court in
whose district the vessel is currently staying. The same applies for arresting a vessel for securing
the payment of a future judgment or award.
The arrest of a vessel for securing payment of future judgments or awards takes place in the form
of a temporary injunction. It requires prima facie evidence of the existence of a claim as well as pri-
ma facie evidence of the risk that a future judgment or award may not be able to be enforced due
to actions of the debtor to remove, destroy, deplete or hide the assets with the intention to frus-
trate the creditor. The mere possibility that the debtor may become insolvent, prior to a judgment
or arbitral award becomes enforceable, is not sufficient for meeting this requirement. Prima facie
evidence has to be submitted in the form of documentation and written statements of witnesses.
Their contact details have to be included in case the judge wishes to verify their statements. All
documentary evidence which is not in, German language has to be submitted in translations cer-
tified by Austrian court interpreters. It is advisable to offer together with the application payment
of a counter-security for any damages the debtor may suffer as a result of an unjustified arrest.
Together with the application for an arrest, by temporary injunction, a filing fee of approxima-
tely 0.7% of the value of the claim has to be paid to the court. The application together with all
supporting documentation has to be filed electronically within the special electronic mail system
between courts and lawyers.
If the judge has been pre-warned by the applicant lawyer of the incoming application and the jud-
ge is satisfied with the prima facie evidence submitted, the temporary arrest order may be issued
on the day of application. As Austrian judges are dealing very infrequently with ship arrests this
result may not be achieved easily.
As a general rule, applications for temporary injunctions for ship arrest are ex parte proceedings.
The debtor is served with the arrest order by the bailiff together with a copy of the application.
The debtor may file within a non-extendible period of 14 days objections or an appeal against the
court order. Objections are filed in case of the court order being based on factual errors and will
result in a hearing before the court having issued the order. An appeal will deal with errors in law
and will be decided by the appeal court. It is advisable to combine both remedies.
In case the judge dealing with an application for ship arrest is not fully satisfied about the merits
17
and the prima facie evidence submitted, he or she may serve the application on the debtor giving
the debtor an opportunity to provide comments or objections within a short period of time. At the
judge’s discretion a hearing may be ordered. While this would result in a delay of time, there is a
risk that the vessel leaves the Austrian stretch of the inland waterway. However, an unscheduled
departure may persuade a judge that there is prima facie evidence of the intention of the debtor
to remove the vessel from the jurisdiction of the Austrian court with a view to frustrate the enfor-
cement of a future judgment or award.
Together with the order for a temporary injunction, the court will set an extendible time limit for
filing a court action or a request for arbitration for justifying the temporary injunction. If no action
is filed by the creditor the order will elapse and the arrest lifted. At any time the debtor may depo-
sit with the court a security for lifting the arrest. The security has to cover the claim plus interest
and costs. The security is either a payment into court or placing with the court a guarantee by a
prime Austrian bank. Guarantees of foreign banks or P&I Clubs will only be accepted as sufficient
security in case the creditor does not object.
2. Which international Convention applies to arrest of ships in your country?

Austria is not a member of any arrest conventions.

No, unless the lien holder has the vessel under control and refuses to release the vessel.

No. The temporary injunction for taking the vessel into the custody of the court is a saisie conser-
vatoire or freezing order.

Arrests can be made for any types of claims including payment of debt, ownership of vessel or
cargo, rights under charter party, damage caused by the vessel, etc.

The flag does not matter when applying for arrest.

A ship can be arrested irrespective of the debtor, always provided the vessel is in the possession of
the debtor. It is then up to the third party ship owner to prove title of ownership.
An arrest of a sister ship is possible provided she is in the possession of the debtor.

Bareboat and time-chartered vessels may be arrested for claims against bareboat charterers and/
or time-charterers with a view either to have the charter party carried out under the supervision
of a court or to obtain security from the charterer.

While there is no legal precondition for obtaining an arrest to provide a counter-security, the judge
may be more easily persuaded to grant the order when the applicant is offering a counter-security.
There is no difference whether an arrest is for a claim or a lien.
12. Does your country recognize maritime liens? Under which International Convention, if any?
Maritime liens properly established will be recognized irrespective that Austria is not a member of
any international conventions.
your law firm?
On the assumption that all documents are in the file together with the court filing fee an arrest or-
der may be obtained on the same day. However, if the documents are not in German, a few days
18
may be required for obtaining certified translations into German by a court sworn interpreter. The
arrest order will be executed by the court’s bailiff under an order issued by the court. We would
liaise with the bailiff to expedite the immediate enforcement.
14. Do you need to provide a POA, or any other documents of the claim to the court?
A POA is not required as it is sufficient for an Austrian lawyer to state in the application that he has
been properly authorized by the client. As a matter of legal practice the lawyer is likely to ask for a
POA for his own files. But the POA is not required for filing the application.
Together with the application, documents have to be filed which provide prima facie evidence of
the identity of the debtor and the vessel to be attached, the existence of the claim and the actions
or behavior of the debtor to frustrate the collection of a future judgment or award. Documents
should be available in originals. If this is not feasible, copies can be submitted. While there is no le-
gal requirement of copies of documents to be certified as conforming and apostilled, it is advisable
to do it in order to avoid the risk that the judge queries their authenticity.
Statements of witnesses should be signed but do not have to be notarized. However, they should
indicate addresses and telephone numbers in case the judge wishes to contact the witness di-
rectly. Documents in languages other than German have to be submitted together with a certified
translation. For the sake of speed it is sufficient to translate the parts which may be relevant for the
judge to grant the order. Also documents in English have to be translated irrespective a judge’s
knowledge of English as the court file has to be kept in the German language. For the sake of
speed, we sometimes submit together with the application English documents together with the
undertaking to deliver certified translations a few days later.
The documents required, as set out in Section 14 above, have to be filed online with the electronic
document archive of the court. The number allocated by the archive to the document file will be
quoted in the application. As a result, the judge deciding on the application has online access to
the document supporting the application.
The arrest of a vessel does not result in the Austrian court assuming jurisdiction over the subs-
tantive claim. The Austrian court will only have jurisdiction if there is jurisdiction according to the
Austrian rules on jurisdiction and civil procedure. Arbitration clauses deprive Austrian courts of
their jurisdiction but not of their power to issue arrest orders.

Upon application of the debtor/ship owner a ship will be released from arrest provided the se-
curity or bank guarantee is deposited with the court is sufficient to cover the claim together with
interest and cost.

The best form of security is payment of cash into the court as this would not result in any further
queries by the court. The same applies to an abstract and unconditional bank guarantee issued
by a leading Austrian bank. Guarantees issued by other banks might raise queries on part of the
judge or objections by the applicant. The same applies for P & O Club letters. In case the applicant
is agreeable with these types of security, the court will accept that as well.

Yes, the security should also cover interest and costs incurred in case the creditor-applicant is suc-
cessful in the litigation or arbitration on the merits of the case.

The judge will not accept P&I LOUs as a sufficient security to lift the arrest unless the creditor-
applicant agrees to it.

The court practice is to structure a release order in such a manner that the release is contingent
on proving the deposit of the security. Once the condition is met the ship can be released
immediately.
19
The debtor/ship owner has the following procedures available to contest the arrest:
(i) Objections on the basis that the facts on which the arrest order has been based are incorrect
or incomplete. The debtor/ship owner will submit, with his objections, documentation as a prima
facie evidence and/or witness statements together with their contact details and apply for a hea-
ring, if he deems a hearing to be useful.
(ii) Appeal to a higher court on the basis that the order is based on errors in law and/or procedure.
(iii) Combining objections and appeal which may be the preferred way to have the arrest order
removed depending on the circumstances.
The usual court practice is to grant a period of 6 (six) months for taking legal action on the merits.
Depending on the circumstances, the court might grant a longer or shorter time limit. If legal ac-
tion on the merits has already, initiated, a copy of the claim filed with the court or the request for
arbitration should be included amongst the documents filed together with the application for an
arrest. This would serve as an additional prima facie evidence of the existence of the claim. In case
the arrest court is also the court of jurisdiction over the substantive claim, it is advisable to combine
the application for arrest with the substantive claim for saving court filing fees.

In case the arrest proves to be wrongful, the defendant can claim compensation for all damages
resulting from the wrongful arrest whereby payment is to be made out of the claimant’s counter
security deposited with the court.
Austrian courts acknowledge the piercing and lifting of the corporate veil in special circumstances
such as in insolvency situations where the application for insolvency has been unduly delayed
or where special circumstances are present such as fraud. There is a court practice of enhanced
liability of directors in case of their misconduct or negligence in management of the company.
With the consent of all parties concerned, in particular creditor, debtor and ship owner, it is possi-
ble to sell the ship pendente lite. The agreement would involve the requirement that the proceeds
of the sale are paid by the buyer directly to the court and thereby replace the arrested ship. At the
same time an order from the court could be sought to lift the arrest whereby such order becomes
operative once the payment of the proceeds of the sale into the court has been effected and duly
acknowledged.
*Dr. Friedrich Schwank is the senior partner of Law Offices Dr. F. Schwank established in 1986 and situated in the Vienna Stock
Exchange Building. The firm is dedicated to providing commercial and financial law services for international clients. Dr. Schwank has
contributed to the law firm his experience from working with a London City firm of solicitors and with the legal secretariat of the Inter-
national Court of Arbitration of the International Chamber of Commerce, Paris. In his career he has focused on international transport
law, letters of credit, bank guarantees, international trade and aviation. He is the Austrian contributor to the European Transport Law,
Antwerp. He is also the author of leading publications relating to aviation, secured transactions, enforcement of judgments and related
areas. As a lecturer he taught a course on international transport law at the University of Economics Vienna. He is frequently acting as
an arbitrator and is a Fellow of the Chartered Institute of Arbitrators, London.
20
SHIP ARREST IN BAHAMAS
By A. Kenra Parris-Whittaker*
PARRISWHITTAKER Counsel & Attorneys
kw@parriswhittaker.com
www.parriswhittaker.com
Suite 10, Seventeen Centre Bank Lane
P.O. Box F- 43018, Freeport, Grand Bahama
Tel: 242.352.6110
Fax: 242.352.6114

A simple arrest of a vessel would involve the commencement of proceedings providing an overview
of the claim with supporting documents exhibiting any documents relevant to the claim. The applica-
tion for the arrest of a vessel will usually be an ex parte application. Once the arrest warrant is execu-
ted the Admiralty Marshall will proceed with the arrest.

The Bahamas is party to the 1952 Arrest Convention (ratified 1979). The Convention applies to all
vessels flying the flag of states which are signatory to the Convention, and (under article 8 of the con-
vention) to vessels flying the flag of states which were not signatory to the Convention where there
is a claim for which the contracting state permits a vessel arrest.

All ship arrests are carried out under the terms of the 1952 Arrest Convention (which is followed by
the Supreme Court Act [SCA] and Rules of the Supreme Court). In order to arrest a ship, it is necessary
to prove the vessel is connected to the claim, as required by s8 of the SCA.
4. Are these alternatives e.g. saisse conservatoire or freezing order?

(Not applicable; see above)

There is a huge range of claims for which a vessel might be arrested. These include:
• Claims for possession or ownership of a vessel, including disputes between co-owners and charte-
rers;
• Claims for damages either suffered by the ship, or caused by it;
• Claims for injury (including fatal injury) caused by negligent behaviour of owners or crew, or defects
in the vessel;
• Claims for loss of or damage to cargo;
• Claims relating to an outstanding mortgage or debt secured against the ship;
• Payment of outstanding wages to crew members and others employed on the vessel;
• Payment for repair, equipment, construction and dock charges;
• General costs such as towage and pilotage;
• Claims relating to salvage; and
• Claims for payment relating to use of the ship, such as chartering the vessel.

Yes. It is not necessary for the vessel to be flying the flag of a state which is party to the 1952 Arrest
Convention.

Yes, with the possible exception of ships which are under the ownership of another State. Under the-
se circumstances, the vessel may be considered immune from arrest. It will be for the Bahamian courts
to make a decision in these cases.
Under the 1952 Arrest Convention, sister ships (ie vessels which are deemed to be in the same owner-
ship as an arrested vessel) may also be arrested, until a satisfactory outcome is achieved. Sister
21
ships constitute a significant financial asset, and are often very important to the settlement of a claim.

Section 3.4 of the Convention provides that in the case of claims made against a Bareboat or Time-
Chartered vessel the charterer – and not the owner – is liable. Vessels under the ownership of the
charterer may be arrested – but no other ship under the ownership of the registered owner.

It is not necessary to post counter-security in order to undertake a vessel arrest. It is at the discretion
of the courts whether the claimant should be required to post counter-security in the event of a
wrongful vessel arrest. The courts are more likely to request a counter-security payment if there are
substantive doubts that the claim is made on good grounds, and is therefore unlikely to be successful.
The procedures by which a vessel may be arrested for either a maritime claim or a maritime lien are
the same, and governed by the 1952 Arrest Convention. A maritime lien holder may have a priority to
any funds generated for example by the sale of the vessel but it would depend on whether there are
other lien holders whose liens rank in priority.
Yes. The Bahamas recognises maritime liens, under the 1952 Convention.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your
law firm?
Instructions to the firm should ideally arrived no more than 48 hours before an application to make a
ship arrest is submitted. It is best practice to file applications early in the day, with the aim of making
a successful arrest of the vessel on the same date. Speedy action is essential because of the nature of
maritime law, in which vessels are by their nature likely to move out of port at any time.
Applications are made by virtue of a Power of Attorney.
Once a Claim Form has been issued, a number of documents in support of the claim should be
supplied to the court. These must include:
• Details of the nature of the claim or counterclaim, including compensation sought
• The name of the vessel for which arrest is being sought
• Full details of the vessel to be arrested, including the name and port of registry and the ownership
of the ship
15. What original documents are required, what documents can be filed electronically, what docu-
ments require notarisation and/or apostille, and when are they needed?
It is not necessary to submit any original documentation in order to undertake a ship arrest. Notarisa-
tion is only required to secure Power of Attorney.
Yes. Under the terms of the 1952 Arrest Convention, the Courts of those states signatory to the Con-
vention have jurisdiction over the claim. However, there are instances when forum is argued and the
Courts have selected not to allow the substantive proceedings to be adjudicated where there is a
more suitable forum.

The procedure required will depend on whether a caveat against release has been filed. Where a
caveat has been filed it is a requirement to seek the consent of the Caveator or provide notice to the
Caveator of the application for release. The Court will then make a determination on the application.

In most cases the party who has obtained the arrest warrant will only agree to the release of the vessel
where an LOU or bank guarantee has been provided.

It is best for the security to cover interest and costs.
22
20. Are P&I LOU’s accepted as sufficient to lift the arrest?
It will depend on the whether the party with the warrant for arrest is willing to accept a P&I LOU.
However, this is usually acceptable.

The release of a Ship can be done within 24 hours of filing an application with the Court for the
release.

Yes a party can contest an arrest by filing an application with the Court in the proceedings.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action
on the merits?
Once the courts have confirmed that an arrest is to be made, the applicant will have a maximum of
up to 60 days (the precise deadline to be set by the Court) within which to complete the vessel arrest.

Claims for wrongful arrest are not specifically covered by the 1952 Arrest Convention, but will be
governed by local state law. There are provisions for handling claims for wrongful arrest within Ba-
hamian Law, which will have jurisdiction over the claim. However, it is important to bear in mind that
claims for wrongful arrest will generally be based on issues which are hard to prove, such as bad faith
or gross negligence.
Recent cases in the Bahamas have demonstrated that the Courts are acknowledging the piercing and
lifting of the corporate veil. This matter refers to company owners seeking to conceal their identity by
hiding behind the ‘veil’ of the creation of a corporation, which in effect separates an individual (and
their liability) from the corporate entity. Where the Courts decide that this separation of the individual
(usually the company owner) and the incorporation should not be maintained, the ‘veil’ is said to be
lifted. Under these circumstances the owner or director of a company may be held liable for the debts
of the company, which goes against the usual principle that such individuals would be immune from
liability, since the corporation would instead be liable. There is no single legal principle under which
the ‘corporate veil’ might be lifted, but the Bahamian courts will act when it is held to be in the inter-
ests of justice to do so – including in cases relating to ship arrests.
It is possible to sell a vessel pending the outcome of a judgment, but it is usually necessary to make a
strong case for a pendente lite sale. Generally, this kind of sale will be sought when the value of the
vessel is decreasing dramatically, so that it is in the best interests of the claimant to make a sale as soon
as possible in order to maximise the asset. If a sale is made pendente lite, the proceeds are likely to be
frozen under the direction of the Courts until the judgement is made.
*Kenra Parris-Whittaker, partner, is a seasoned young litigator with an exceptional track record across all practice areas. Her dedicated
and rigorous approach has been crucial to the Firm’s success.
The Nassau-born, Canadian-educated litigator attributes her success to thinking a few steps ahead of her opponent.
The daughter of Bahamas real-estate guru Arthur Parris, Kenra always knew that she would be an attorney. She enrolled in law school
(University of Buckingham, 2001, and later Inns of Court School of Law, 2004), then joined Callenders & Co., where she became a
senior associate litigating commercial and maritime cases.
Now, as an admiralty, maritime, and commercial litigator, Kenra frequently represents crew members, vessel repair shops, shipyard
owners, insurers, adjusters and others. She has been uncannily successful in these endeavors.
With her reputation for securing successful outcomes for clients across a broad range of practice areas, Mrs. Parris-Whittaker is a wise
investment- whether for small firms, major corporations or individuals.
23
SHIP ARREST IN BELGIUM
By Steven D’Hoine*
D’HOINE & MACKAY ADVOCATEN
steven.dhoine@dm-law.be
www.dm-law.be
Grote Steenweg 633, B-2600 Antwerp
Tel: +32-3/470.23.00
Fax: +32-3/470.23.10

Belgium, and most specifically the port Antwerp, has with reason a favourable reputation of
being a convenient place to arrest ships. The fact that Antwerp is one of the biggest and bu-
siest ports of the world is not the only reason. The arrest of a ship and the accomplishment of
the required formalities are well-organised: a simple, fast and short procedure, an experienced
Antwerp Maritime bar, local representation of all P&I Clubs of the world, excellent shipping
signalling services and, last but not least, several Judges of Seizure who are at the disposal of
the parties at every moment 24 hours a day, 7 days a week for all urgent matters related to the
arrest of a ship.
A vessel can be arrested within a few hours after having received instructions. No power of
attorney or original documents are required.
The owner of a ship may demand immediate release of the ship upon issuing an acceptable
Bank or P&I Club Letter of Guarantee, covering the amount of the claim plus 30% as a retainer
for costs and interests. The formalities to lift the arrest are minimal, and can be fulfilled within
the hour. The owner of a ship may also request for the withdrawal of the judgement, granting
authorisation to arrest the ship. This request has to be filed before the same Judge of Seizure
who granted the authorisation. This request is heard on a contradictory basis in summary proceedings.
Moreover, in Belgium some rather unique possibilities with respect to arrest of a ship are availa-
ble. For instance, a vessel can be arrested for certain maritime claims, even if the owner of the
vessel is not the debtor of this claim (see further under n° 7).

All arrests of sea-going ships are subject to the Brussels Convention 1952 relating to the Arrest
of Sea-Going Ships, as enacted in the Belgian legislation.

No.

Not applicable.

A sea-going ship can be arrested in Belgian territorial waters as a security for a maritime claim,
as specified in littera a to q of art. 1.1 of the Brussels Convention 1952.
It is generally accepted that the claimant only has to present an allegation of right or claim. As
soon as the claimant proves that his maritime claim is ‘sufficiently probable’, i.e. when the judge
accepts ‘prima facie’ evidence presented to him on an ex parte basis, his request for authorisa-
tion to arrest a ship will be granted.

A sea-going ship can be arrested in Belgian territorial waters, whatever the flag it is flying.

The ship in respect of which the maritime claim arose, can be arrested, even if it is not the owner
but another person who is liable for the maritime claim, such as a bareboat charterer, voyage or
24
time charterer or any other third party.
The owner of the ship shall, in order to have his ship released from the arrest, have to give
security that guarantees the payment of the claim of the arrestor. In other words, the owner of
the ship will have to guarantee the payment of the claim, even if a third person is the debtor
towards the arresting party.
The only restriction is that the ship to which the maritime claim relates may not be arrested if
it changed ownership between the moment the claim arose and the moment of arrest, unless
the claim is secured by a maritime lien or mortgage. The transfer/change of ownership of the
vessel is however only opposable against the seizing party when such transfer is opposable to
third parties in accordance with the applicable law. If the conditions for the opposability of the
transfer against third parties are not fulfilled at the time of the arrest, the arrest shall be allowed.
If the owner is liable for the maritime claim not only the ship, in respect of which the maritime
claim arose, may be arrested but also all other ships in the same ownership. Ships will be dee-
med to be in the same ownership when all the shares therein are owned by the same person
or persons (see also under n° 25).

The ship in respect of which the maritime claim arose can be arrested, irrespective whether the
vessel is Bareboat – or Time Chartered. See above under n° 7.

The counter-security has fallen into disuse in Belgian law. It is therefore uncommon that Belgian
courts impose a counter-security on the arrestor.
There is no procedural difference.
Belgium incorporated the Brussels Convention on Maritime Liens and Mortgages of 10 April
1926 in its internal law through Articles 19 to 45 of the Maritime Code. The maritime liens or
privileges are listed in Article 23 of the Maritime Code.
your law firm?
Upon receipt of the instructions to arrest the ship, the arrest of the ship can be effected within
approx. 4 hours. The unilateral request to obtain authorisation to arrest a sea-going ship can
be submitted at any moment of the day, even out of office hours and during the weekend or
holidays.
A ship under arrest will not obtain the services of a pilot. More specifically in the port of Antwerp
an arrested ship will not be able to leave the port since also the lockkeepers are informed.
No POA is needed. Belgian counsels represent the client without needing to present power of
attorney.
No original documents are required.
It is not required either to have documents notarised or apostilled.
Furthermore, in practice, no complete file of documents of evidence on the merits of the claim
is needed in order to obtain an authorisation to arrest a ship. A claimant, requesting authorisa-
tion, only has to make his allegation of the existence of the maritime claim reasonably certain.
Given the fact that at the time of the request the claim often just arose, the Judges of Seizure do
grant authorisations for claims only scarcely documented.
It is advisable – but therefore not always necessary - to have a copy of the Bill of Lading, an
invoice, a (general) protest and/or an interim report of a surveyor available.
25
Art. 7 of the Brussels Arrest Convention 1952 provides that the Courts of the country in which
the arrest was made shall have jurisdiction to determine the case upon its merits in certain cir-
cumstances. This article has not been incorporated in the Belgian Code on Civil Procedure, but
is applicable in Belgium as it is Belgian Private International Law as a result of the ratification
of the Brussels Arrest Convention 1952. This implies that the Belgian Commercial Courts will in
principle not refuse jurisdiction. In practice however, claimants rarely make use of the possibility
of ‘Arresto fundatur jurisdictio’.

The arrest may be lifted by putting up a security (see question 18) or after obtaining order of
the Judge of Seizures deciding to set aside the original order for arrest (see also question 22).

A cash deposit and/or a bank guarantee are accepted to obtain the release of the ship. In prac-
tice an undertaking of a first class P&I Club is also mostly accepted (although the claimant may
refuse such undertaking and ask for a cash deposit or bank guarantee). In case of disagreement,
the Judge of Seizures may settle any dispute related to the nature of security.

Yes, the security should cover the principal amount of the claim, costs and interest. The global
amount of interest and costs is normally determined at 30 or 40 per cent of the principal amount.
In case of disagreement, the Judge of Seizures may determine the amount of the security.

See question 18.

If the parties agree upon the lifting of the arrest, the court bailiff may release the ship within the
hour as from the instructions by the arresting party. In case proceedings are initiated to have
the ship released, the release will take longer as such proceedings are often slowed down by
the desire of the parties to develop their arguments in written submissions.

The shipowner (or a third party) may file opposition proceedings with the Judge of Seizures
within one month of service of the order of arrest for such order to be set aside or varied; if such
application fails, appeal is possible before the Court of Appeal.
a) The arrest is valid during three years. The arrest can be renewed for a second period of three
years. b) The arrest of a ship does not impose upon the arrestor the necessity to start legal
proceedings on the merits of the case; nor does Belgian law impose Belgian Jurisdiction for the
claim on the merits after an arrest in Belgium.
Obviously, since an allegation of a maritime claim has to be shown, it is necessary to start legal
proceedings on the merits before the competent court within the time bar limits related to the
claim itself.

Although the Belgian courts acknowledge wrongful arrest, they are rather reluctant to grant
such claims. An unjustified arrest is not sufficient. Proof of a fault/bad faith on behalf of the
arrestor is required. A claimant will only be considered as having acted at fault by arresting
the vessel if he obtained and put the arrest in a thoughtless and reckless way knowing that he
would cause damages (e.g. when the arrestor consciously hid important information from the
Judge of Seizures).
If the arrestor loses the contradictory summary proceedings or the case on the merits, this does
not automatically result in the arrest being wrongful.
On several occasions Belgian courts have accepted the piercing and lifting of the corporate veil
26
within the frame of conservative arrest proceedings. If the owner is liable for the maritime claim
not only the ship in respect of which the maritime claim arose, may be arrested but also all other
ships in the same ownership (see our reply to question 8). This rule can be circumvented easily
by creating ‘single ship companies’. In this respect Belgian Courts occasionally authorised the
arrest of a ship owned by another company than the debtor of the claim. The courts thus lifted
the corporate veil and treated ships owned by different companies as if they were in the same
ownership as soon as it was sufficiently evidenced that the separate corporate personality is
only an artificial screen that does not correspond to reality.
Belgian case law accepts that a ship under arrest may be sold as soon as the claimant disposes
of an enforceable title. This will also be the case if the judgment is not rendered against the
owner of the ship but against another person who is debtor of the claim.
*Steven D’Hoine read law at the University of Leuven. He joined the Antwerp Bar Association in 1990. In 2004, he founded the law
firm D’Hoine & Mackay. D’Hoine & Mackay is a specialised law firm based in Antwerp offering the full range of legal services in the
commercial area, with a focus on maritime and transport law, other port related areas and specie and fine art insurance. D’Hoine &
Mackay primarily renders services to insurance companies, P&I Clubs, carriers, freight forwarders, logistics providers and trading
companies. D’Hoine & Mackay also acts as correspondent on behalf of many law firms abroad for services in Belgium, as well as
for Belgian law firms searching for specific services in their specialised field. Steven D’Hoine has been appointed as a recognized
mediator. He is a member of the Belgian Maritime Law Association, the Royal Belgian Association of Maritime Insurers and various
transport related organisations.
27
SHIP ARREST IN BENIN
By Philippe Pruvot
3A BENIN
legal@group3a.com
01 BP 7391 - Cotonou
Republic of Benin
Tel: +221 8 2546 0770

The procedure relating to the arrest of sea-going ships is made easy in Benin by the entry into
force of a new law namely the Act No 2011-11 dated March7, 2011 laying down the Maritime
Code in the Republic of Benin.
On the basis of that Code, all sea-going ships may be arrested, even ships already set to sail,
unlike the previous act.
Among the provisions enabling an arrest of a ship, the condition relating to the claim is outs-
tanding. The creditor must show evidence of a claim that is certain and maritime as well, with a
connecting link with the implicated ship, or with the owner of the vessel to be arrested.
For the issuance of the arrest order, judges are very particular about the maritime nature of the
claim which must be part of the list of maritime claims provided by Article 156 of the Maritime
Code.
Upon reception of instructions, the order for arrest may be obtained within the next twenty-
four (24) hours.
Submitting original documents is not necessary unless questions arise on the lawfulness of the
arrest, and more specifically on the ownership of the vessel.
The release of an arrested ship may be obtained within a few hours after the issuance of a bank
or P&I Club letter of guarantee accepted by the creditor.
By the way, the judge may also allow the ship to leave upon deposit of moneys equal to the
principal amount of the claim plus costs and incidental expenses.
Withdrawal of the arrest order may be granted by the enforcement judge dealing with the case
in summary proceeding.

Arrests of sea-going ships are subject to the May 10, 1952 Brussels Convention for the unifica-
tion of certain rules relating to the arrest of Sea-Going Ships, signed by the Republic of Benin,
and part of the legal instruments therein available.

No, the law only provides that way for the arrest of sea-going ships.

There are no alternatives to the arrest of ships. However a ship may be seized upon requisition
of a CID police officer, when that ship is involved in any criminal facts or is carrying goods from
criminal origin. This will be the case of a ship carrying goods acquired upon perpetrating an
international piracy act.
Such a vessel may be kept under the custody of port authorities to assist in the on-going inves-
tigation on the committed crime.
On another lane, in due enforcement of their police powers, the maritime authorities may confi-
ne a ship to port, should they notice any discrepancy in endorsements of documents on board,
should these documents are lacking, or should they notice that the condition of the ship is a
threat of pollution or might be the cause of marine casualties.
28
Claims allowing ship arrest must be certain and bear the characteristics of maritime claims. Ma-
ritime Claim shall mean a claim arising out of one or more of the following: -Damage caused by
any ship either in collision or otherwise;
-Loss of life or personal injury caused by any ship or occurring in connexion with the operation
of any ship;
-Salvage;
-Agreements relating to the use or hire of any ship whether by charter party or otherwise;
-Agreements relating to the carriage of goods in any ship whether by charter party, a Bill of
Lading or otherwise;
-Loss of or damage to goods including baggage carried in any ship;
-General average;
-Towage;
-Pilotage;
-Goods or materials wherever supplied to a ship for her operation or maintenance;
-Construction, repair or equipment of any ship or dock charges and dues;
-Wages of Masters, Officers, or crew;
-Master’s disbursements, including disbursements made by shippers, charterers or agent on be-
half of a ship or her owner;
-Operation or title to earnings of that ship;
-Any maritime mortgage or hypothecation of any ship or more generally any claim arising from
any the causes allowing the application of the limitation of owners or charterers liability.

The Law provides for the arrest of any vessel irrespectively of her flag. All it takes is that the claim
must be connected with the concerned ship.

Arrest of a ship can be made irrespectively of the debtor, whether the latter is the ship-owner
or the charterer.
Benin case-law does not make any distinction between sister ships and ships in associated ow-
nership. Once the claim is sufficiently evidenced against a ship or her owner, that ship and all
other ships of his (the owner) fleet can be arrested.
The law provides that the creditor has a general possessory lien over all of the debtor’s proper-
ties. It is then up to the creditor to seize any of the debtor’s asset.

There is no implication as regards to Bareboat and Time-Chartered vessels as far as arrest of
ships is concerned. Ships bareboat or time-chartered can be indiscriminately arrested for the
same claim.

Counter-security is not required for the issuance of an arrest order of a ship.
The Benin Maritime Code caters for Liens in its Art 114 through 124. Liens are listed in Art 114
of the Code. This listing is inspired by the International Convention for the Unification of certain
Rules relating to Maritime liens and mortgages.
your law firm?
Upon reception of the file (meaning instructions and documents), the order for arrest may be
obtained within twenty-four (24) hours. The request may be lodged immediately and the judge
may be involved to help having the order quickly signed.
29
The arrest occurs after that with a bailiff serving the order and the immediate consequence is
the confinement of the ship.
No POA is required, the counsel aptly standing for his client without the need to produce any
proxy.
No original documents are required and no notarisation and/or apostille is necessary for docu-
ments. And all documents can be sent electronically for filing provided they are readable and
such as to evidence the claim.
Once a vessel has been arrested, the Courts of Benin always accept jurisdiction to hear the
withdrawal of the arrest order and/or its lawfulness.

An arrested ship may be released upon a release order from the Court or upon a Court deci-
sion allowing the ship to leave after depositing moneys with the Court registrar as security, the
amount of which is set by the Judge according to Art 153 of the Benin Maritime Code.
Release can also occur voluntarily after parties have reached an amicable settlement in terms of
acceptance of a letter of guarantee by the creditor.

In most cases, a bank guarantee payable at first demand is preferred. However P&I LOUs are
also accepted.

The security is placed as to cover the debt’s principal amount, interests and costs. However
everything may be negotiated.

P&I LOUs are perfectly accepted as sufficient to lift the arrest.

There is no time necessarily taken to release the ship. It can occur immediately upon issuance of
the release order from the Court or upon the agreement reached by the parties.

The arrest may be challenged by referring it to the enforcement judge.
The claimant has eight (8) days to refer the case to the Civil Tribunal of the place where the
arrest occurred to have the arrest confirmed. Failing to do that results in the arrest voided.

The arrest may be declared wrongful when it has been conducted without any claim or when
the provisional requirements for such an arrest were not met. In such circumstances, the arres-
tor incurs liability for costs and damages.
Considering Memoranda of Association and shares held by an individual in a Company presen-
ted as owning/operating a ship, the Courts may point out the actual owner of the ship, lift the
corporate veil and authorize the arrest of that ship supposedly owned by a company other than
the debtor of the claim.
It only takes, apart from endorsements on the vessel ownership certificate, to clearly show the
connection between the debtor and the concerned ship.
30
It is then possible to arrest any ship belonging to the owner once the link is sufficiently eviden-
ced.
A ship under arrest may be sold pendent lite: (8) days after the arrest, the arrestor may take
action on the merits to have his arrest confirmed.
The decision sets a base price and conditions for such an auction.
Actual auction occurs fifteen (15) days after auction notices have been posted and published
in the gazette.
Bids are received ten (10) days after the sale order by the court.
The successful bidder is compelled to pay the price within seventy-two (72) hours following the
auction. Failing to honour his payment, the ship is reset for sale and auctioned (3) three days
after a new notice of sale by auction.
31
SHIP ARREST IN BRAZIL (Questions 1 to 9)
By Marcus Alexandre Matteucci Gomes*
FELSBERG ADVOGADOS
marcusgomes@felsberg.com.br
www.felsberg.com.br
Avenida Cidade Jardim, 803, 5th Floor
Sao Paulo - SP 01453-000 - Brazil
Tel: (55 11) 3141 9145 - Fax: (5511) 3141-9150

Under Brazilian law, the arrest of assetsis a provisional or interim remedy that may be granted
by a court so as to ensure satisfaction of a judgment in a present or future action of law brought
to enforce the collection of a debt. It results in a preventive and provisional seizure of assets of a
value deemed to be sufficient for providing security to the debt.
The circumstances in general in which such provisional remedy may be granted are listed in
Articles 813 and 814 of the Brazilian Code of Civil Procedure.The granting of the arrest also
requires evidence of an indisputable and strongly grounded credit.
Specifically in relation to the arrest of ships, pursuant to Article 479 of Brazilian Commercial
Code, the arrest may be granted with grounds upon one of the credits that are qualified as “pri-
vileged” by Brazilian law. Under the same legal provision, said “privileged” credits have in rem
effects, constituting a maritime lien on the vessel.
Thus, the arrest ofa ship essentially takes into account whether the claim is grounded on one of
the credits that give rise to a maritime lien on the vessel.

Brazil is only part to the “International Convention for the Unification of Certain Rules of Law
Relating to Maritime Liens and Mortgages”, signed in Brussels, on April 10, 1926. Such Conven-
tion is in force in Brazil by virtue of Decree No. 351, dated October 10, 1935, and, as a matter of
Brazilian law, has the same status of any other Brazilian federal laws.
Although the Brussels Convention of 1926 does not dispose about the arrest of ships, its en-
actment in Brazil not only confirmed but also complemented the list of credits that, under Brazi-
lian Law, are considered to result in a maritime lien on a vessel.

Brazilian law provides for the arrest of ships as a provisional or interim remedy for the obtaining
of security. As a general rule, there are no other ways of arresting a ship under Brazilian law.

Based on Article 804 of the Brazilian Code of Civil Procedure, the arrest may be ordered by court
as an injunctive relief, even before Defendant is serviced of process and has the opportunity of
filing its defense. For such, there must be strong evidence of the satisfaction of the legal require-
ments for the arrest, as well as reasonable arguments supporting that the granting of the arrest
is a matter of utmost urgency.
As a condition for granting said injunctive relief the court may, however, order the posting of
counter-security. The requirement or not of said counter-security relies on court`s discretion.

The list of credits that gives rise to a maritime lien on the vessel is provided by Articles 470 and
471 of the Brazilian Commercial Code, as amended and complemented by Article 2 of the Brus-
sels Convention of 1926.
Amongst others, the following creditsare considered to have in rem effects in relation to a ship,
making it possible for the arrest to be requiredirrespectively of the debtor:
i. Taxes due to the State;
32
ii. Salaries or payments due for services rendered aboard ship or in the benefit of the ship;
iii. Expenses incurred with the ship’s costs and maintenance;
iv. Expenses with depositaries, as well as storage costs relating to the ship’s instruments;
v. Shortages on delivery of cargo and damage thereto;
vi. Debts deriving from the contracts for construction and purchase of the ship;
vii. Debts deriving from costs incurred in the repair of the ship and its installations and equip-
ment;
viii. Salvage indemnity claims;
ix. Obligations assumed by the master while exercising the powers conferred upon him bylaw,
x. Claims for general average;
xi. Claims for marine accidents;
xii. Credits secured by marine mortgage;
xiii. State or private port operators`credits;
Evencredits that do not constitute a maritime lienmay give rise to the arrest of a ship, however,
not irrespectively of the debtor. Additionally, the arrest based on such type of credit is enforcea-
ble only at the port where the vesselhas been registered and, even so, only upon the posting of
a bond and after the filing of the applicable collection action.

Pursuant to the Article 482 of the Brazilian Commercial Code, a foreign flag vessel should not
be arrested in Brazil unless it is due to: (i) a maritime lien originating in Brazil; or (ii) even if ori-
ginating abroad, a maritime lien that is grounded in a title that may be considered enforceable
in Brazil.
Nevertheless, it has long been a controversial matter whether such Article is still in full force,
there being grounds to sustain that it was barred by the Federal Constitutions that superseded
the Brazilian Commercial Code.

Provided thatthere is a valid maritime lien, the ship may be arrested irrespectively of the debtor.
Such arrest is only admitted when the credit is opposable uponowners and not solely upon the ship.
As a consequence thereof, for said purpose it is only admitted the arrest in personam (unless
there are grounds for claiming the lifting of the corporate veil of the companies or individuals
involved, pursuant to Article 50 of Brazilian Civil Code).

As mentioned above, a ship may be arrested irrespectively of the debtor. Thus, subject to the
qualifications contained herein, bareboat and time-chartered vessels may be arrested.
*Marcus Alexandre Matteucci Gomes is Partner of Felsberg and Predretti Advogados e Consultores Legais.
Admitted to Bar, 1999, Brazil. Member of the Monitoring and Research Group of the Department of Roman Law at the Law School
of the University of São Paulo (1995-2002). Member of the Teaching Assistance Plan of the University of São Paulo (2000-2002).
Visiting researcher at “Istituto di Diritto Romano” of the School of Law of the University of Rome I – “La Sapienza” (2003). Professor
of Civil Law at UNICID (1999-2003) and FAENAC (2004-2006). Member of the Legislation, Legal Writings and Case Law Committee
(“Comissão de Legislação Doutrina e Jurisprudência”) of the Brazilian Bar Association, São Paulo Chapter (2001-2003). Member of
São Paulo Lawyers Association.
Background: São Paulo University, School of Law (LL.B. 1998). São Paulo University, School of Law (PhD 2004).
Practice Areas: Civil and Commercial Law, including Shipping and Maritime Law, National and International Litigation, Mediation and
Arbitration.
33
SHIP ARREST IN BRAZIL (Questions 10 to 26)
By Arthur Rocha Baptista*
ADVOCACIA ROCHA BAPTISTA
arthur@arb.legal
www.rochabaptista.adv.br
Largo Silveira Martins, 23 – B4 96200-395
Rio Grande, Brazil
Tel: +55 53 3232 0232
Fax: +55 53 3231 7787

Brazilian Courts may require counter-security in order to arrest a ship in cases where the plea
of arrest is lodged as a preliminary or precautionary measure to guarantee a future action of
collection or indemnity.
Pursuant to article 804 of the Brazilian Code of Civil Procedures, it falls within the discretion
of the Judge to require counter-security either to issue an in limine arrest order, i.e. without
prior hearing of the defendant party, or to secure an eventual claim for wrongful arrest. In
accordance with article 816, II, the Judge shall grant the arrest order without prior justification
when the party offers counter-security. Usual means of counter-security are cash deposit or
bank guarantees.
Brazilian Courts may also require a security from foreign claimants who do not have assets or
branch companies in Brazil, in order to guarantee the satisfaction of judicial costs and legal fees,
usually up to 30% of the value of the claim.
Yes. The arrest for a maritime lien is an action in rem, and to this effect it can be exercised against
a specific vessel regardless of the fact that the debt was incurred by the owners, charterers or
operators of the vessel. Claimant needs only to prove that it holds a valid maritime lien against
the vessel.
The arrest for a maritime claim is an action in personam. It is subject to proof of the claim (fumus
boni iuris) and evidence that the debtor does not have other assets in Brazil to satisfy the claim
(periculum in mora). The arrest for a maritime claim – or for claims of any other nature - is filed
against the owner of the vessel for owner’s debts only, and it may be addressed against a sister
ship.
12. Does your country recognise maritime liens? Under which International Convention, if any?
Yes. Brazil is signatory to the International Convention for the Unification of Certain Rules of Law
relating to Maritime Liens and Mortgages, 1926, which is in force by Decree nr. 351/35.
your law firm?
From 24 hours to 48 hours, depending on the location of the ship.
Yes. A POA is required, together with the company’s articles of incorporation, written evidence
of the claim and ownership of the vessel.
Some Brazilian Courts accept electronic based lawsuits, and digital documents can be filed on
these Courts. Other Courts will only accept paper-based claims.
A written evidence of the claim and ownership of the vessel must be presented at lodging of
the plea of arrest.
The POA needs to be notarised and it can be presented up to fifteen days after the filing of the
arrest.
Every document that is not written in Portuguese must be translated by a sworn translator.
34
The arrest of ships in Brazil is only possible in cases where Brazilian Courts have jurisdiction
over the substantive claim, in one of the following cases: (i) Defendants are Brazilians or have
subsidiaries in Brazil; (ii) the obligation has to be fulfilled in Brazil; (iii) the claim originates from
facts or acts occurred in Brazil.
The shipowner has to plea in court and offer a proper security as replacement for the arrest
usually in the value of the claim plus 20 to 30% to cover fees and costs.

Usually a money deposit, but a real estate, and bank guarantees are also commonly accepted.

Yes, as a rule between 20 and 30% but may be reduced or enlarged at Judge’s discretion.

May be accepted at Judge’s discretion; however, experience tells that P&I LOUs are frequently
not accepted in Brazil.

Depends on the kind of security offered; for instance, less than one day for money security.

Yes, the arrest and the substantive claim can be contested in court by means of a written defen-
ce subscribed by a Brazilian lawyer; all legal and factual defences are available to defendants.
Claimants must file a substantive claim within thirty (30) days of the issuance of the arrest order.
Claimants may file the substantive claim and plea the arrest at the same time.

Yes. As a general rule, a wrongful arrest will be acknowledged in cases where the substantive
claim is ruled against claimants.
As a matter of law, Brazil acknowledges the piercing and lifting of a company’s corporate veil.
However it is unlikely that a Brazilian Court would investigate a foreign company and lift the
corporate veil to the effect of granting an arrest order.
Yes, in cases where the ship is damaged or abandoned, or it is too onerous to maintain the ship
afloat. A judicial sale of a ship may take from two to three months.
*Arthur Rocha Baptista is a registered lawyer in Brazil since 2001 and the managing partner of shipping law firm Advocacia Rocha
Baptista since 2007. Arthur acted as observer for the Brazilian Delegation before the Legal Committee of the IMO in London (2003)
and holds a Masters degree in Maritime Law at the University of Southampton, UK (2004).
Arthur is a regular speaker for the Lloyd’s Maritime Academy’s Latin America programmes (2013-2014) and other shipping courses. He
was recently listed as a “Transport & Shipping Recommended Lawyer” by the Legal 500 Latin America 2013.
Specialties: wet & dry shipping; international trade; environmental law; shipbuilding contracts; corporate law; arbitration & litigation.
Memberships: International Bar Association; Brazilian Bar Association; Brazilian Association of Maritime Law; Iberoamericam Institute
of Maritime Law.
Chambers 2015: “Well-regarded practice with extensive experience of representing P&I clubs, most notably in shipping, commerce,
customs, corporate and environmental issues. Arthur Rocha Baptista is highly recommended by peers and clients alike for his exten-
sive knowledge and experience.”
35
SHIP ARREST IN BULGARIA (Questions 1 to 9)
By Roumen Lyutskanov & Vanya Angelova*
DOBREV & LYUTSKANOV Law Firm
lyutskanov@lawfirm-bg.org
www.lawfirm-bg.org
25, Khan Krum Str., 1000 Sofia, Bulgaria
Tel: 00359 2 980 38 76
Fax: 00359 2 980 42 61

In principal, the arrest of a ship according to the Bulgarian law is a procedure which provides pre-judg-
ment security for future claims or already brought proceedings. The arrest of a ship shall be allowed, if
without it, it will be impossible or difficult for an eventual future court decision to be executed, until the
necessary guarantees are provided by the shipowner. Notwithstanding the relatively formal character
of the procedure according to the Bulgarian law, after the country became a party to the International
Convention on Arrest of Ships, 1999, the number of applications for security of maritime claims through
an arrest was increased, as well as the terms and condition for allowance of such applications were
unified.

The Republic of Bulgaria is a State party to the International Convention on Arrest of Ships, adopted on
March 12, 1999 at the United Nations/International Maritime Organization Diplomatic Conference on
Arrest of Ships, held in Geneva (“The Convention”). The Republic of Bulgaria has signed the Convention
on July 27, 2000 and ratified it in accordance with the constitutionally established procedure.
In accordance with its Article 14 (1), the Convention went into force on September 14, 2011, six months
after the Republic of Albania became the 10th State to accede it. State parties include Albania, Algeria,
Benin, Bulgaria, Denmark, Ecuador, Estonia, Finland, Latvia, Liberia, Norway, Pakistan, Spain and the
Syrian Arab Republic.

The merchant ship, which is located at a Bulgarian sea port, regardless of its flag, can be arrested only
for securing a maritime claim for the purposes of Art.1, para.1 of the The Convention. Besides the above
procedure, the Bulgarian Merchant Shipping Code envisages a specific procedure for the arrest of ships
sailing in inland waterways, as a prejudgment security for future claims or already brought proceedings.
The grounds for arrest of ships sailing in inland waterways are identical to those provided in the Con-
vention.
Arrest of a ship, according to the domestic law might be allowed:
By the district court at the location of the ship (the respective port) in a procedure for securing of a claim,
including a future claim, by imposing of a collateral measure “arrest of a ship” under the provisions of the
Bulgarian Civil Procedure Code for a claim arisen in connection with the ship.
In addition to the above, the Bulgarian Merchant Shipping Code provides for a specific procedure con-
cerning the arrest of a ship and cargoes only for unpaid sums of customs, port and other fees, taxes
and fines. The Executive Director of the Bulgarian Maritime Administration or the captain of a port may
arrest Bulgarian or foreign ships for such claims, if the request is made on behalf of governmental and
judicial authorities, by the State Enterprise “Port Infrastructure” or by a foreign maritime administration.
36
The arrest shall continue until elimination of the grounds for it.

Such instruments are not provided and applicable according to the Bulgarian law.

Grounds for arrest of a ship, according to the Convention are maritime claims, as defined in Article 1 (1)
of the Convention. The competent authority is the Court.

The Bulgarian Merchant Shipping Code does not specify exceptions to this general rule, stipulating that
authorities “may arrest Bulgarian or foreign ships and cargoes”.
Article 8, para 1 of the International Convention on Arrest of Ships, 1999 states that the rules and regu-
lations set by the Convention apply to any ship within the jurisdiction of any State Party, whether or not
that ship is flying the flag of a State Party. Article 8, para 2 however makes and exception, declaring that
said rules and regulations do not apply to any warship, naval auxiliary or other ships owned or operated
by a State and used only on government non-commercial service.

The general rule, according to the Bulgarian law is that a ship arrest is admissible for maritime claims
against the persons who are responsible under the maritime claim. The ship-owner is the owner of the
ship, entered in such capacity in the register of the ships or any other person who utilizes the ship on
other legal grounds (by example on the ground of a bareboat charter agreement) at the time when
the maritime claim arose and the arrest is effected. In order for the arrest of the vessel to be allowed
the debtor should be responsible under the maritime claim as well as a person specified in Art. 3 of the
Convention.
The Bulgarian Merchant Shipping Code stipulate that the sister ships and ships in associated ownership
may be arrested for claims arisen from other ship, according to the Convention, under certain terms and
condition. In this procedure, the arrest is admissable for any other ship or ships which when the arrest
is effected, is or are owned by the person who is liable for the maritime claim and who was, when the
claim arose: (a) owner of the ship in respect of which the maritime claim arose; or (b) demise charterer,
time charterer or voyage charterer of that ship.

9.1. Regarding the Bareboat- Chartered vessels
Arrest is permissible of any ship in respect of which a maritime claim is asserted if the demise 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; or the claim is against the demise charterer and is secured
by a maritime lien which is granted or arises under the law of the State where the arrest is applied for.
9.2. Regarding the Time-Chartered vessels
The Vessels which are used on the grounds of concluded contract for Time-Chartered, may be arrested
only as a security for a maritime claim for which the owner is deemed responsible. The arrest of a ship
as security marine claim against Time-Charter is permitted for ship or ships which, when the arrest is
effected, is or are owned by the person who is liable for the maritime and who was, when the claim
arose, time charterer.
*Mr. Roumen Lyutskanov is a Partner at Dobrev & Lyutskanov Law Firm. Mr. Lyutskanov graduated from Sofia University, Faculty of
Law (LL.M. 1984, Specialization: Maritime Law) and is a member of the Sofia Bar Association, foundation member of the Bulgarian
Commission of Jurists – a national branch of the International Commission of the Jurists and member of the Bulgarian Association of
International Law. He has extensive experience and practice in the areas of banking and finance; maritime law, transport, insurance;
dispute resolution.
*Ms. Vanya Angelova is an Associate at Dobrev & Lyutskanov Law Firm, which she joined in 2010. Ms. Vanya Angelova graduated from
South-west university, Faculty of Law (LL.M. 2011) and is a member of the Sofia Bar Association. Her current practice encompasses
the areas of dispute resolution, maritime law, transport, insurance;
Maritime law is an important aspect of the activities of the Law Firm. Its practices include consultations on the conclusion and imple-
mentation of maritime transportation contracts, sale and purchase contracts, maritime claims, litigation, and arrest of ships.
37
SHIP ARREST IN BULGARIA (Questions 10 to 26)
By Vladimir Penkov*
PENKOV, MARKOV & PARTNERS
lawyers@penkov-markov.eu
www.penkov-markov.eu
13B, Tintyava Str., Fl. 6, Sofia 1113
Tel: + 359 2 971 3935
Fax: +359 2 971 1191
The long effective provision regarding the administrative procedure for detention of a vessel, provided for in
the initial version of the Merchant Shipping Code (MSC), has been replaced by the provision of Article 364a
of the MSC, which is intended to eliminate conflicting case-law that has led to a conflict of laws in the inter-
pretation and implementation of the provisions of the MSC and the International Convention on the Arrest
of Ships, done at Geneva on 12 March 1999. Thus, the only legal possibility for the arrest of a merchant vessel
while in a Bulgarian sea port, regardless of the flag she is flying, is solely and exclusively in order to secure a
maritime claim within the meaning given by Article 1, paragraph 1 of the International Convention on the
Arrest of Ships, done at Geneva on 12 March 1999 (ratified by the Republic of Bulgaria by a law promulgated
in the State Gazette No. 7 of 2001).
A vessel is arrested and released from arrest by the Harbour Master of the port in which the vessel is, in
furtherance of a judicial act decreed in conformity with the conditions provided for in the International
Convention on the Arrest of Ships by:
1. the first-instance or the intermediate-appellate-review Bulgarian court wherebefore the maritime claim
case is pending;
2. the district court exercising jurisdiction over the location of the vessel: where a future maritime claim is
secured.

Depending on the specific judge’s discretion a guarantee (usually up to 20 % of the claimed amount) might
be requested.
There are not exact provisions in the Bulgarian law concerning maritime claims and maritime liens.
No.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm?
Usually 2 to 3 days upon receipt of the documents needed.
The following documents will be needed in general for the ship arrest procedure in Bulgaria:
a. a copy of the carriage contract or the contract for the services;
b. invoices regarding the deliveries (copies would suffice at first time);
c. certificate of good standing of the creditor of the vessel;
d. excerpt from the Maritime Register about the vessel’s owner;
e. power of attorney.
15. What original documents are required, what documents can be filed electronically, what documents
require notarisation and/or apostille, and when are they needed?
The document under the item “c” should be verified with apostille as per the requirements of the Hague Con-
vention of 1961, in order to be officially translated and legalized in Bulgaria. The documents under the other
items should be officially translated in Bulgarian language, which may be accomplished in Bulgaria upon their receipt.
38
The set of the documents should be presented to the court as attachments to the claim.
No.

The release from arrest is regulated under the terms and provisions of Art. 4 of the International Convention
on the Arrest of Ships from 12 march 1999.
In addition, any merchant vessel, which has already been arrested and released from arrest or in respect
of which security has already been provided to secure a maritime claim, regardless of the State where this
has been done, may not thereafter be rearrested in respect of the same claim except in the cases covered
under Article 5, paragraph 1 of the International Convention on the Arrest of Ships. The provision of Article
5, paragraph 2 of the International Convention on the Arrest of Ships applies in respect of any other vessel
which would be subject to arrest in respect of the same claim.

No specific type of security is provided for, but the most common case in practice is to provide a bank gua-
rantee.

The exact amount of the provided security is also not determined specifically, whereby our experience in
such cases shows that the minimal amount of security should match the amount of the creditor’s claim.
Interest in cases of delay or the expenses for effecting the arrest itself could also be included in the amount
of required security.

Bulgarian law does not regulate this particular form of security.

Usually 2-3 days after the provision of a security.

The arrest of a ship is allowed by the respective district court as a first instance and may be appealed before
the respective court of appeal as second instance, whereas the decision of the latter is then final.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action on the
merits?
The court order for the arrest of a ship is valid for a term of up to 30 days, unless a lawsuit is filed against the
debtor, whereby the effect of the order could last throughout the court procedure. If the claim is not filled
within the deadline given by the court, the arrest shall be lifted.

In case of groundless arrest the liability shall be borne by the person to the request of whom the arrest is
imposed.
No.
According to the Bulgarian Law is not possible to sell the arrested ship during the time of the court procee-
dings. After the court decision the creditor may apply for an enforced sale of the ship.
*Vladimir Penkov is the founder and Managing Partner of Penkov, Markov & Partners. He is specialized in commercial and company
law, banking & finance, competition & antitrust, investment management, project development, IT, media & telecommunications, licen-
ses and know-how, privatization, mergers and acquisitions, concessions, taxation, international commercial arbitration, maritime law.
He has handled numerous acquisitions and joint venture establishments, including representation of the Bulgarian government in the
privatization of Navibulgar (Bulgarian sea commercial fleet) and the Bulgarian River commercial fleet.
39
SHIP ARREST IN CAMBODIA
By Dr. Darwin Hem*
BNG LEGAL
cambodia@bnglegal.com
www.bnglegal.com
No 64, St 111, PO Box 172, Phnom Penh, Cambodia
Tel: +855 23 967 450
Fax: +855 23 212 840

During the years following the adoption of the 1952 Brussels Convention, Cambodian court has oc-
casionally dealt with ship arrest. This day, an arrest of ship in Cambodia shall be subject to either the
Book six on Compulsory Execution, or Book seven on Preservative Disposition under the Code of Civil
Procedure (“CCP”), promulgated on 6th July, 2006, effective from 6th July, 2007. In addition to the
enforcement of a final and binding Court Judgment or Arbitration Award1 in which any ships under
the same ownership can be seized for the benefit of creditor against the ship-owner as the debtor,
the competent court may grant an order to provisionally attach or dispose the said ship, upon an
application submitted by the claimant.

Since 1957, Cambodia has been party to International Convention relating to the Arrest of Sea-Going
Ships (Brussels, May 10, 1952).

In practice for the Cambodian Courts, the provisions of CCP remain the major source of law for the
arrest of ships. Just like other execution, the execution against ships requires a title of execution,
which includes final and binding judgment2 ; Enforcement of real security rights against ships3 ; and
provisional attachment against ships4 .
• Final and binding Judgment: in principle, this title of execution is necessary for execution judge to
issue a ruling for ship arrest. This means that if the judgment is not yet binding, it is not executable and
thus cannot arrest the ship of the debtor in execution. However, in some cases even if the judgment
is not yet binding but declare of its provisional execution, this can also be used as title of execution
to arrest a ship5 ;
• Enforcement of real security rights: upon the request from creditor, the execution judge or bailiff
can issue his ruling for ship arrest if there is a final and binding judgment or other documents having
the same effect or even the notarized documents certified by a notary proving the existence of real
security rights;
• Provisional attachment: the execution of provisional attachment against a ship must be performed
through the method of registration for provisional attachment and/or by the method ordering the
bailiff to confiscate the Certificate of Registry of the concerned ship and submit this certificate to the
Preservative Disposition Execution Court.

According to Article 568 of CCP, when the ship is not in rem arrested, the creditor can also demand
for the execution of provisional attachment carried out by means of ordering the confiscation of the
Certificate of Registry of Vessels.

In order to answer this question we must first ascertain that no matter the origin of the credit, any
claim can lead to ship arrest, following court ruling.
- Under the Brussels Convention, ships may be arrested for any of the “maritime claims6”
- Under domestic law7, any other credit, ordinary or privileged, arising from a maritime claim or not is
a valid request demanding court decision for ship arrest.
1 Book six of CCP 6 Article 1 of the 1952 Brussels Convention
2 Article 454 to Article 486 of CCP 7 Provision of Prakas 2003 on resolution of ships registration, and provision relating to provisional attachment against ships (Article 568 of CCP
3 Article 521 to Article 523 of CCP of CCP) , and compulsory execution against ships (Article 521 to Article 523 of CCP)
40 4
5
Article 568 of CCP
Article 350 and 455-3 of CCP
Cambodian law doesn’t distinguish the ships arrests according to theirs flags. However, in the prac-
tice, the nationality of ship may be the obstacle of court proceeding because court need to inform
the ship’s embassy, in case, the ship is subject to be provisional attachment by means of Code of Civil
Procedure. Besides that, there are not any privileges, except governmental ships, whose immunity is
protected by international law.

Has maritime claim arisen, ships can be arrested, even if it is a person, other than the ship-owner,
is liable for the maritime claim, such as a bareboat charterer, voyage or time charterer or any other
third party8. The owner of the ship shall, in order to have his ship released from the arrest, have to
give security that guarantees the payment of the claim of the arrestor9 . In other words, the owner of
the ship will have to pay the security amount to release the ship, even if a third person is the debtor
towards the claimant.
Under Brussels Convention10 , any ship belonging to the debtor may be arrested even where the claim
is not related directly to the ship unless the claim is related to the title or ownership of a particular ship
or related to disputes between co-owners or the mortgage or hypothecation of this ship.
A ship owned by an associated company of the debtor may be arrested only if associated company
is deemed to be jointly responsible for the claim such as the case of the responsibility of general part-
nership11.

Under the Brussels Convention12 , the creditor of a maritime claim against the bareboat or time char-
terer of a ship is entitled to arrest the ship in question or any other ship under the same ownership
of the charterer.

Before court issues the ruling to provisionally attach ships, the court may request creditor to deposit
money13. The amount of deposit, the court may think damage of debtor will be occurred after the
court attached the ship. Sometimes, court may order creditor to deposit the amount of price of ship.
However, article 542 of CCP is the court’s description whether, it orders to deposit or not. It is upon
the quality of preliminary show; if the creditor has good evidence which convince court to imagine
existing fact, the court may not need creditor to deposit money. Preliminary showing means shall be
made based on evidence that permits of immediate examination14 such as agreement of manage-
ment, report of creditor consist of debtor has a lot of loan, etc.
There is no difference in the procedure of ships arrest in either the case of maritime claim or maritime
lien. However, while maritime claim may be extinguished due to the change to the ownership over
the ship, some cases in maritime liens will remain in full force and effect until the discharge executed
by the debtors15.
Even though Cambodia has not acceded to any international conventions relating to maritime liens,
Cambodia have adopted its own regulation relating to maritime lien since 2003.
your law firm?
We would need a couple of days after our law firm has obtained all the required documents of the
claim and sufficient information (ship’s movements, etc.). However, once the complete application is
handed to competent court, it normally only the matter of days to obtain an interim arrest decision.
8 Article 4(1) of international convention relating to the arrest of sea-going ships (1952)
9 Article 5 of international convention relating to the arrest of seagoing ships (1952)
10 Article 3(1) of international convention relating to the arrest of seagoing ships (1952)
11 Chapter 2 “General Partnership” of law on commercial enterprises, adopted 19 June 2005
12 Article 3(4) of international convention relating to the arrest of seagoing ships (1952)
13 Article 542 of CCP
15 Article 52 of Prakas 2003
41
There is no need to provide a POA. Obviously, the claimant must provide any document16 evidencing
the existence and the cogency of the claim. Those entire documents, according to each case, are lis-
ted in CCP. In addition, when the claim is grounded on the Brussels Convention, the documents must
also show the maritime nature of the claim.
Notarized document of Title of Execution are required in case of the execution of a final court judg-
ment17 and the execution of security rights against ships18 .
In practice, there have not been any documents filed electronically to court; all required documents19
must be handed directly to the competent court.
Any substantive claims that fall under the general provision of article 8 and 9 of CCP (General pro-
vision of competent court) can be accept by Cambodian court. In addition to domestic procedure,
Cambodian judges may accept jurisdiction over the substantive claim listed in article 7 of Brussels
Convention.

Procedure to release a ship can be divided into two cases:
First, the ship arrested to satisfy final and binding court judgement can be released under the fo-
llowing procedures:
- Money Guarantee for the ship release: debtor-in-execution shall provide money guarantee equi-
valent to the total amount of the claims of the creditor-in-execution, the claims of the creditors who
have made demands for distribution, and the execution costs. The court shall, upon motion and prior
to the making of any offer for purchase, cancel all of the compulsory execution proceedings except
for the distribution proceedings20 . This is to ensure that if the debtor still fails to fulfil his duty, the
creditors in execution can be paid with the money guarantee following the distribution proceeding
already determined.
- Permission to sail: The court may, upon a motion by the debtor-in-execution, grant permission for the
ship to sail if the court finds that business necessity or other good grounds exist, and if the consents of
each creditor, and the highest bidder or the purchaser have been obtained21 .
- Cancellation of compulsory sale proceedings: if the bailiff is unable to confiscate the Certificate of
Registry of ships within 2 weeks of the issuance of the ruling for commencement of compulsory sale,
the execution court shall cancel the compulsory execution proceedings22 .
Lastly, in case of provisional attachment against ships, the debtor can file a motion of objection to the
provisional attachment. if it is established by a prima facie showing that clear circumstances consti-
tuting grounds for canceling the ruling of preservative disposition exist and that there is a risk that
execution of provisional attachment would cause irreparable damage, the court may order a stay or
a cancellation of provisional attachment with the requirement of security23 .

In general rule prescribed in CCP, security for the release does not need to be money. It can be any
negotiable instruments, as deemed appropriate by the court24.

In case of ship arrest to satisfy final and binding court judgment, the security shall be equal to total
amount of claims of creditors and execution cost25, in which might also include the interest and costs
depending on the parties and/or judge.
However, upon issuing a court ruling on provisional attachment against ships, the court shall stipulate
the monetary amount the debtor is required to place as a court deposit in order to have the execution
of the provisional attachment rescinded26. Thus, whether the interest and costs are covered, it would
be the court who appreciates.
19 In case of execution of final judgment against ships (Article 455 of CCP); execution of security rights against ships (Article 521 of CCP); and provisional attachment against ships (Article 568 of CCP)
42 26 Article 547(1) of CCP
P&I LOUs can be considered as negotiable instruments under CCP’s provision. Therefore, depending
on the value of LOUs, the court might accept this security. In addition, it might also depend on the
agreement between parties. If claimant agrees to accept the LOUs, he/she has to forfeit the claim; as
a result, the court ruling against ships shall be cancelled27.

After depositing the security for ship release, it is only a matter of days for obtaining the court ruling
of cancellation the attachment against ships. That court ruling shall come into effect only when it
becomes final and binding. However, the court may, if it finds particularly necessary, declare that the
ruling shall come into effect immediately28.

It is very possible to contest the arrest; debtor can file a motion of objection to a ruling of attachment
against ship at the court that issued such ruling29. In such case, it is important that the debtor prepa-
red the entire related documents proving the reason of contest, such as inexistence of such claim or
others good grounds.
According to article 557 of CCP, in case of provisional attachment against ships, the claimants must
take legal action on the merit within a period deemed reasonable by the Court30 after the said ships
have been arrested; otherwise the arrest will automatically be held cancelled.

Cambodian judges rarely accept a claim for compensatory damages for wrongful arrest, unless the
bad faith or malice of the arrestor is clearly established.
Piercing the corporate veil is not common. Therefore it is not normally possible to arrest the property
of owners associated with the debtor. The exceptions are general partnerships, since the general
partners are personally liable for the debts of the company. If the piercing of corporate veil concern li-
mited companies, Cambodian judges might reply on the general principal of law of theory of “fiction”
instead of the theory of “appearance”. The company owning the ship must be proved fictitious. The
court might appreciate upon various elements of fictitiousness such as unity of management, absence
of participation to the profits and/or debts, unequal distribution of the dividends, same beneficial or
associated owner, etc.
Yes, if property, which is subject to rapid deterioration or which is expensive to retain in custody, has
been arrested but the court has not yet given a judgment, the Bailiff is entitled to sell such property at
the request of the claimant. In theory, these provisions31 may apply also to ships under arrest.
In practice, lapse of time of the procedure of judicial sale depends on the complexity of the case.
*Dr. Darwin Hem is the Founder of the law firm BNG Legal, one of the leading Cambodia law firms.
Education: Joint-Law Program of the University of San Francisco (USA) and Cambodia and a CAPA from the Bar Association of Cam-
bodia, and a MBA in Finance from Charles Sturt University (Australia). He also studied economics in Australia and law in Lyon (France)
under various scholarships, and has a Diploma in Economic Law from the Royal School of Administration and a Diploma in Finance
from Development Alternatives, Inc (USA).
Career: Attorney at law in Cambodia; an international associate member of the American Bar Association, a member of APAA (Asian
Patent Attorneys Association), LAWASIA (The Law Association for Asia and the Pacific); a member of the Working Party on the Ac-
cession of Cambodia into the World Trade Organization; a Trademark Agent in Cambodia; an arbitrator at the Cambodian Arbitration
Council. He specializes in real estate, commercial & corporate law, project finance, intellectual property and commercial litigation.
27 Article 557(4) of CCP

30 This period shall not be less than 2 weeks.
31 Article 565, and article 568 of CCP.
43
SHIP ARREST IN CAMEROON
By Henry Feh Baaboh*
HENRY, SAMUELSON & CO
feh_law@yahoo.com
www.henrysamuelson.com
Mcmiriam Tower (top floor)
76 rue Bruix,. Off Commissariat 4e Arr.
200m. face Entreé Manège, Akwa
P.O. Box 15805 Douala, Cameroon
Tel: 00(237) 699 933 447 / 00(237) 674 989 351
Fax: 233 438 791

In Cameroon, ship arrest as a conservatory measure is to ensure the satisfaction of a final judg-
ment in a future action.
Cameroon has 3 (three) major sea ports (Douala, Limbe and Kribi). To these must be added the
Tiko and Idenau sea ports and Garoua river port.
The competent authority to order ship arrest is the petition judge (see article 15(2) of Law n°
2006/015 of 29/12/2006 on Judicial Organisation of Cameroon) who happens to be the Presi-
dent of the Court of First Instance. But in practice the President of the High Court in the English
Common Law jurisdiction also entertains motions ex-parte.
Ship arrest could arise from several reasons to be enumerated in question 5 below.
Ship arrest is commenced by a motion ex-parte after having sought the consultative opinion
of the Department of Merchant shipping and Inland Waterways. The justifying documents are
usually the bill of lading and maritime survey report or any other document(s) justifying the
maritime claim. Before this petition may be granted, the creditor must first satisfy the court that
a notice to pay had been served on the debtor to no avail.
Applications in view of ship arrest are filed on business days (Mondays - Fridays) during working
hour (7.30 am -3.30 pm). Once the judge is of the opinion that the maritime debt is justified (if
only in principle), s/he grants the application.
Ship arrest in Cameroon is effected in the hands of the captain via the services of a sheriff/bailiff
who prepares a report thereof, a copy of which is addressed to the commander of the port, the
competent maritime authority as well as the consul of the country of the flag of the ship.

The law governing ship arrest in Cameroon is the regional CEMAC Merchant Shipping Com-
munity Code of 3rd August 2001 as amended on 22nd August 2012 (the code) which had its
inspiration predominantly from the International Convention of 1999 on the Arrest of Ships
and the Brussels Convention of 1952 on the Unification of Certain Rules on the Arrest of Ships.

The code being a law of special application prevails over other laws on the attachment of per-
sonal and real property in Cameroon.
Although the code is the only law governing ship arrest in Cameroon, it however makes re-
ference to the OHADA Uniform Act relating to Simplified Recovery Procedure and Means of
Enforcement of Judgments relating to the procedure for the forceful sale of ships.
4. Are there alternatives e.g. saisie conservatoire or freezing order?

Article 144-156 of the code prescribes the modalities for “saisie conservatoire”.

Article 149 of the code provides that the maritime debts which may give rise to ship arrest are
those which result from one or more of the following causes, provided that claims which are
only partially maritime are assimilated to maritime claims:
44
a) Loss or damages caused by exploitation of the vessel;
b) Death or corporal injuries arising, onshore or offshore, in direct relation with the exploitation
of the ship;
c) Operations of rescue or assistance, as well as all contracts of rescue or assistance, including,
as the case may be, for special indemnity concerning operations of rescue or assistance to a ship
which, by itself or by its cargo, was running the risk of causing damage to the environment;
d) Damages caused or likely to be caused by the ship to the environment, to the coast or to
connected interests; measures taken to prevent, reduce or eliminate the damages; indemnity
for these damages; cost of reasonable measures to repair which was effectively taken or to be
taken; losses suffered or likely to be suffered by third parties in relation to these damages; and
damages, costs or losses of a similar nature to those which are indicated in this item d);
e) Costs and expenses related to the retrieving, removing, recovery, destruction or neutraliza-
tion of a sunk, wrecked, grounded or abandoned ship, including all what is found or was found
on board the ship, and costs and expenses related to the conservation of an abandoned ship
and the up keep of its crew;
f) Every contract related to the use or hire of a ship by chartering or otherwise;
g) Every contract related to the transportation of goods or passengers by ship, by chartering or
otherwise;
h) Losses or damages suffered by, or in relation to, goods, including luggages transported by
the ship;
i) General average;
j) Towing or piloting of a ship;
k) Goods, materials, supplies, oil-fuel tank, equipments, including containers supplied or services
rendered to the ship for its exploitation, its management, its conservation or its maintenance;
l) Construction, reconstruction, repairs, transformation or equipment of a ship;
m) Port, canal, dock (dry-dock), anchoring and inland waterways duties and fees;
n) Wages and other sums of money payable to the captain, naval officers and other crew mem-
bers, by virtue of their engagement on the ship, including repatriation fees and social insurance
contributions payable on their behalf;
o) Payments made on behalf of the ship or its owners;
p) Insurance premiums, including annual insurance contributions, in relation to the ship, paya-
ble by the owner of the ship or by the charterer by devolution or on their behalf;
q) Agency fees or brokerage commissions or other in relation to the ship, payable by the owner
of the ship or by the charterer by devolution or on their behalf;
r) Every dispute arising from the ownership or possession of a ship;
s) Every dispute between the co-owners of a ship in relation to its exploitation or the right to the
proceeds of exploitation of the ship;
t) Mortgage or rights of a similar nature over a ship;
u) Every dispute arising from a contract of sale of a ship.

Article 1 of the code has broadened its scope of application to include the arrest of any ship
irrespectively of her flag, provided such a ship is found within the CEMAC territorial waters. The
only exception provided by article 144(2) refers to a ship belonging to a state or exploited by a
state, which was doing exclusively a government (and not commercial) service at the time the
maritime claim arose.

Article 149 of the code prescribes different circumstances whereby a ship can be arrested. This
contemplates a situation where a ship can be arrested irrespectively of the debtor. That he is a
national or foreigner is of no moment. He could also be a physical or moral person.
According to article 144(1) of the code, the ship which caused the maritime claim to arise or a
sister ship, meaning any other ship belonging to the person who was owner of the ship which
caused the maritime claim to arise, may be arrested as a conservatory measure. However, the
code is silent on ships in associated ownership.
9. What is the position as regards bareboat and time chartered vessels?

The code, in its article 149(f) provides for the arrest of a ship as a conservatory measure, if the
maritime claim arose from a chartering contract or contract on the use of a ship. Along the same
lines, article 2(2) seems to have given a broader definition to chartering a ship to include bare
45
boat and time chartered vessels. In effect, a ship can be arrested in Cameroon if the maritime
claim arose from bareboat or time chartered vessel.
10. Do your courts require counter-security in order to arrest a ship?

As soon as a maritime debt appears justified (if only in principle) a ruling may be granted for the
arrest of ship as per article 150(2) of the code. By necessary implication there is no requirement
for counter security. It is rather the debtor who shall be required to provide security under article
146 & 147 of the code if s/he desires to make one or two quick voyages for emergency purposes.
Article 149 provides a list of maritime claims for which a ship may be arrested. Arguably a lien
may be given to secure the claim. In addition article 75 of the code provides a list of maritime
claims which are privileged. If the maritime lien provides enough security, an arrest may not be
necessary. Yet a maritime lien arising from a privileged maritime claim under article 75 is good
reason to arrest a ship here and the procedure is the same.
12. Does your country recognize maritime liens? Under which International Convention if any?
Cameroon recognizes maritime liens under article 75-88(not) of the code and she is a signatory
to this code which is an International Convention signed on 22th July 2012 by the CEMAC
member states.
your law firm?
An arrest order can be obtained within the same day of filing the requisite court processes if
pressure is put. So if the applicant through counsel, sees the private secretary or registrar-in-
chief (and talk convincingly), the application could be put on top for the urgent attention of the
President of the court who may also be interested in such a file.
14. Do you need to provide a POA or any other documents of the claim to the court?
There is no requirement to provide a POA. Article 150(2) of the code is to the effect that the
claimant must produce justifying documents relating to the maritime claim to the competent
court before such petition can be granted. These justifying documents would include the bill of
lading, maritime survey report assessing the claim and a notice to pay addressed by the claimant
to the debtor, which notice was either simply ignored, or, the claimant was not satisfied with
any reaction the debtor might have shown.
documents require notarisation and/or apostille and when are they needed?
The code is silent as to whether originals of justifying documents should be filed, or whether
they may be filed electronically, or whether any document need notarisation. However, prac-
tice and procedure in the Cameroonian courts require an applicant to either make and file
certified true copies of justifying documents or produce and file the originals depending on the
circumstances of each case. Yet in the English Common Law jurisdiction, mere photocopies are
accepted. Whether they are originals, certified copies, or photocopies, justifying documents are
required at the moment of filing the motion.
16. Will your courts accept jurisdiction over the substantive claim once a vessels has been arrested?
Yes. Pursuant to article 7 of the Brussels Convention of 1952, Cameroon courts will assume ju-
risdiction over the substantive claim once a vessel has been arrested within its territorial waters.
Indeed article 155(1) of the code provides that the creditor must file a substantive matter within
a limited period if the arrest order would stand.
17. What is the proceduce to release a ship from arrest?

a) By the debtor: He shall, within one month of the arrest, file a motion on notice before the
same court for the discharge of the arrest order. If successful, the release order is served on the
creditor (who has the right to appeal) and the Maritime Authority (who issues an authorization
to sail in the absence of an appeal) and the Port Authority.
b) By the creditor: Once he has received payment or sufficient quarantee, he shall immediately
file a motion exparte before the same court for the release of the ship or simply instruct the
sheriff/bailiff to release same. Either way, he shall serve the Maritime Authority (who shall issue
an authorization to sail) and the Port Authority.
46
c) Temporary release upon emergency: Upon the application of the debtor, the court may order
a temporary release of the vessel (carrying perislable goods…) for a specific voyage (or voyages)
upon deposit of sufficient quarantee.
18. What type of security need to be placed for the release?

In the case of a) above, no security is required. In the case of b) above, a Letter of Understanding
issued by the P&I Club or endorsed by the P&I Club is sufficient. In the case of c) above, the law
talks of sufficient quarantee which we interprete to mean funds enongh to cover the debt.
19. Does security need to cover interest and cost?
Yes.

Yes.
21. How long does it take to release a Ship?

If the application for release is initiated by the debtor in a disputed case it may take from one
month to two years or more depending upon whether there are appeals or not.
If on the other hand the application for release is initiated by the creditor, it may take between
a couple of hours to couple of days. In the case of tempory release it takes a couple of hours.
22. Is a procedure to contest the arrest?

Yes. The debtor may, within one month of the arrest, file a motion on notice before the same
court contesting the arrest. If he succeeds he may claim damages for unjustified arrest.
23. Which period of time will be granted by the courts in order for the claimants to take legal
Article 155(1) of the code is unambiguous that under pain of forfeiture, the claimant(s) have a
statutory period of 01 (one) month to institute legal action or file the necessary court processes
leading toward obtaining an executory formulae.
24. Do the courts of your country recognize wrongful arrest?

Yes. Article 156 of the code gives its blessings to a ship owner whose ship was wrongfully
arrested and he obtained a release order thereafter. Thus the ship owner is entitled to sue for
damages if he has suffered loss as a result of immobilization of the ship.
25. Do the courts of your country acknowledge the piercing and lifting of the corporate veil?
Article 54-74 of the code provide for co-ownership of a ship, meaning the ship could be owned
by a corporation. The OHADA Uniform Act provides for the piercing and lifting of the corporate
veil and the courts here do enforce it.
26. It is possible to have a ship sold pendente lite; if so, how long does it take?
It is logically unwarranted to sell a ship, the object of litigation, pendente lite. If that were to be
the case, the litigation would commit abortion instantly after such a premature sale. However
under some special circumstances yet to be contemplated by our legislations and practice and
procedures, a ship may arguably be sold pendente lite.
*Born in Cameroon and admitted to the Cameroon Bar as Barrister & Solicitor of the Supreme Court of Cameroon, Feh Henry Baaboh
holds an LLM Degree in Business Law (University of Douala) and LLB Degree in English Private Law (University of Yaoundé II, Soa).
These only came later to add to the three other University Degrees (one Bachelors and two Masters) he had earned before in the old
University of Yaoundé. Such educational career, with a broad base, has earned him the distinction of a sound and solid solicitor of
international renown. He is quick to discern legal issues and seek practical solutions to them.
He gave up teaching in the University of Douala where he lectured law of Torts and civil procedure to concentrate on legal practice
wherein he specializes in International Commercial and Corporate Law besides his day to day General Practice. The firm’s clients say
he is reliable. As Maritime Lawyer, he arrests up to 20 ships per year.
47
SHIP ARREST IN CANADA
By Shelley Chapelski & Andrew J. Stainer*
BULL, HOUSSER & TUPPER LLP
sac@bht.com & ajs@bht.com
www.bht.com
1800 – 510 West Georgia Street
Vancouver, British Columbia V6B 0M3
Tel: 604.687.6575
Fax: 604.641.4949

Ship arrest in Canada is usually simple and relatively inexpensive. The claimant must provide its
law firm with the facts which evidence the nature of the claim and its amount (by providing, a
letter and/or orally) so that the solicitor can swear an affidavit describing the claim. Then law
the firm must prepare three documents:
a. Statement of Claim to commence the action setting out the relevant facts which establish in
rem jurisdiction.
b. Affidavit to Lead Warrant, attesting to the facts of the claim which can be sworn by the soli-
citor upon information and belief.
c. Warrant for Arrest issued by the Court to the Sheriff.
In Canada, it is not required that the Sheriff go into possession of the ship following arrest,
unless specifically ordered by the Court. Therefore, the only costs to arrest are Court and Sheriff
feesand the legal costs to prepare the documentation. If the matter is straightforward, an arrest
can be done for as little as Cdn.$4000 to $5000.

Canada has not acceded to the Arrest Conventions. The grounds for arrest are found in domes-
tic legislation.

There is no other way to arrest a ship but it may be seized through other processes described
in the next answer.

In appropriate circumstances, Canadian Courts may grant Mareva Injunctions freezing a
defendant’s assets within the jurisdiction. A vessel may also be seized and sold as an asset of a
judgment debtor to satisfy a judgment against the debtor.

Arrest is available for a wide range of claims for which there is in rem jurisdiction including, per
s. 22(2) of the Federal Courts Act, claims for or involving:
(a) possession or ownership of a ship or proceeds of sale of a ship;
(b) questions between co-owners of a ship with respect to possession, employment or earnings
of a ship;
(c) mortgage or other charges, bottomry or respondentia;
(d) damage, or loss of life or personal injury, caused by a ship;
48
(e) damage to or loss of, a ship including its cargo or equipment;
(f) carriage of goods on a ship under a through bill of lading;
(g) loss of life or personal injury occurring in connection with the operation of a ship;
(h) loss of or damage to goods carried in or on a ship including loss of or damage to passengers’
baggage;
(i) agreements relating to the carriage of goods or charter parties;
(j) salvage;
(k) towage;
(l) pilotage;
(m) necessariesfor the operation or maintenance of the ship including stevedoring and lighterage;
(n) contracts relating to the construction, repair or equipping of a ship;
(o) wages of master, officer or crew of a ship;
(p) claims by master, charterer or agent of a ship or shipowner in respect of disbursements, or
by a shipper in respect of advances, made on account of a ship;
(q) general average contribution;
(r) marine insurance; and
(s) dock charges, harbour dues or canal tolls.

Yes, although the Canadian Courts will recognize sovereign immunity but not for government-
owned commercial ships.

As a general principle, other than for maritime liens and certain special statutory liens, the ship
owner itself must be liable for the debt in order to arrest the ship. One exception is if the charte-
rer acts as the ship owner’s agent when incurring the debt. Additionally, if the law of the con-
tract governing the supply of ship’s necessaries grants a maritime lien to the supplier, then the
supplier can arrest in Canada to enforce the lien even if that same claim would not otherwise
constitute a maritime lien under Canadian law. Canadian repairers and suppliers of goods, ma-
terials or services (other than stevedoring and lighterage) to foreign ships now may also claim
a maritime lien even if the debt was incurred by the charterer of the ship. See also the answer
to Question 9 below.
Section 43(8) of the Federal Courts Act permits sister ship arrest. However, absent fraud, the
ownership interests of the two ships must virtually be identical to establish the right to claim
Should a creditor arrest a sistership to obtain security with respect to a maritime lien as against
the offending ship, the claim will only rank as a statutory right in rem against the sistership
behind any mortgage. Section 43(8) provides only a statutory right in rem against sister ships.

Subject to the exceptions described in 7, above, if a claimant is pursuing a claim for necessaries
ordered by the charterer of a bareboat or time chartered vessel, the claimant bears the onus to
prove that the charterer was acting as agent of the owner in order to advance a claim in rem.
This isobviously easier to establish with bareboat chartered vessels. As well, with respect to ste-
vedoring services, it is deemed by domestic legislation that the creditor may arrest the ship for
unpaid services incurred by a bareboat charterer, so long as the ship remains under charter to
the bareboat charterer.

Countersecurity is not required for the arrest. However, if the plaintiff is a foreign entity without
any assets in the jurisdiction, the defendant will often seek an order requiring the foreign entity
to post security for costs of the litigation in case that party lose the case and be ordered to pay
costs to the defendant.
The procedure is the same. However, in the case of a maritime claim which does not give rise to
a maritime lien,if ownership of the ship has changed subsequent to the cause ofaction in rem
arising but before commencement of the action, the in rem liability of the ship is extinguished
(subject to certain statutory exceptions).
49
Canada recognizes the traditional English maritime liens but is not a party to a Convention with
respect to them. Canada also recognizes maritime liens for pilotage and for the Canadian supply
of goods, materials or services to, or a contract for repair or equipage (but not construction) of,
a foreign vessel. If a foreign claim constitutes a maritime lien under the applicable foreign law,
Canada will recognize the lien even though the same claim would not constitute a lien under
Canadian law.
your law firm?
If we are provided with all the documents or information evidencing the debt or claim enabling
the solicitor to swear the Affidavit to Lead Warrant, and the vessel is located in the port of Van-
couver during normal business hours we can arrest in as little as 90 minutes. Otherwise, it can
require up to 24 hours depending on the ship’s location in Canada.
No, but to swear the Affidavit to Lead Warrant, we need written or oral advice directly from the
claimant or his representative of the specific amount owing and the reason for the claim.
No original documents are required to arrest. Should the matter eventually proceed to a trial,
original documents may then be required.
Subject to an application from the defendant on the basis of forum conveniens, the Court will
generally retain jurisdiction over the case. If the Court agrees to stay the proceeding in favour of
forum conveniens, it will generally require that the arrest security be transferred to that alterna-
te jurisdiction so that the plaintiff is not prejudiced. In the instance of an arbitration agreement,
the Court may order a stay to enforce the arbitration agreement, but again, will usually order as
a condition of the stay that the arrest security remain available wherever the arbitration is taking
place. For cargo claims, Canada exercises Hamburg Rules - style jurisdiction, subject again to
arguments of forum conveniens.

Unless a caveat against release from arrest has been filed, arrested property may be released by
1) consent of the arresting party, 2) discontinuance or dismissal of the related action, or 3) upon:
a) payment into Court of the amount claimed; b) the appraised value of the arrested property;
or c) where cargo is arrested for freight only, the amount of the freight.
Alternatively, bail may be posted, the amount of which shall be agreed between the parties
or set by the Court. Upon service of a release from arrest document issued by the Court to the
sheriff and payment of any related costs or fees of the sheriff, the property is released. The Court
may also, upon motion, order the release the ship at any time, without bail.

Unless the parties privately agree upon a P&I LOU as security, the Rules of Court provide that
security or bail may be in the form of a bank guarantee, surety company bond or bail bond in
the Court approved form, or cash paid into Court.

The appropriate security is based on the plaintiff’s “best arguable case” including interest and
costs, but limited by value of the arrested property. Typically the allowance for interest and costs
is 25% to 50% of the claimed amount.

While not technically sufficient under the Rules of Court in Canada, P&I LOUs are routinely ne-
gotiated and accepted by plaintiffs as sufficient security to prevent or release an arrest.

Practically, an arrested ship can be released forthwith upon the express consent of the plaintiff
50
and is free to sail. However, the Court must issue a release from arrest document and the Sheriff
be paid all fees in full before the release is technically effective. If the arrest is contested and a
motion to Court to release the arrest warrant is sought, it can take at least 1-2 days or more
depending on the urgency and the Court’s schedule and willingness to hear it on a rush basis.

Yes, the contesting party may bring a motion in Court seeking an order to quash or set aside the
arrest and release the property on the basis that the arrest was done without proper jurisdiction
or grounds, or was otherwise wrongful. On occasion the parties will agree upon an interim
measure of security pending Court resolution of the validity of the arrest so that the vessel may
sail and to mitigate any possible claim for damages for wrongful arrest.
Canada’s Marine Liability Act requires that,unless another statutory limitation period applies,
claims for all maritime matters be commenced no later than three years after the day on which
the cause of action arose. Whether limitation periods of less than three years agreed upon by
contract will be upheld under the Marine Liability Act is not yet clear.By statute Canada also
applies the time limitations found in the Athens Convention, LMCC, Hague Visby Rules, Bunker
Convention and others. These specific time limitations will trump the general 3 year provision.
Canadian law on wrongful arrest follows that of the UK. Damages for wrongful arrest can be
awarded only when the owner of the arrested ship proves that the action was commenced
with malice or gross negligence.
Canadian Courts will generally respect the corporate veil except in the instances of fraud.
The Court will consider sales pendente lite, especially if the ship is a deteriorating asset that the
interested parties are not maintaining, and is likely to be sold in any event. The length of time to
sell is largely determined by the degree of resistance from the ship interests. It can be done in as
little as two months – the Court order must be obtained for the sale, the ship appraised, the sale
advertised and bids accepted and Court approval of the specific sale granted.
*Shelley has practiced maritime law for almost 25 years and has been involved in dozens of ship arrests and priority disputes. She is
co-leader of the firm’s Maritime and Transportation practice groups. Her practice includes all aspects of maritime law, both litigation
and commercial. She is the Western Vice-Present of the Canadian Maritime Law Association and is recognized by Best Lawyers,
LEXPERT and Who’s Who in Shipping as one of the top shipping lawyers in Canada. She is ranked Band 1 for Shipping law in Canada
by Chambers Global, as is the firm’s maritime practice group.
*Andrew is a member of Bull Housser’s maritime team and acts for clients in a wide range of maritime, transport and insurance
matters. He is active in the Canadian Maritime Law Association and an executive member of the Plimsoll Club, Vancouver’s shipping
and transportation industry association. He is also called to the bar in Ontario and once worked in the Shanghai offices of a leading
British shipping law firm.
51
SHIP ARREST IN CHILE
By Leslie Tomasello Weitz*
TOMASELLO & WEITZ
ltomasellow@tomasello.cl
www.tomasello.cl
Almte. Señoret 70, of. 85 - Valparaíso
Tel: 56 (32) 2252555 – Fax: 56 (32) 2254495
Av. Nueva Tajamar 555, oficina 201 - Santiago
Tel: 56 (2) 23611070 – Fax: 56 (2) 23611070

The list of privileged credits (i.e. credits which enjoy a special status and may be deemed to be
statutory lien) is contained in Articles 844 to 846 of the Code of Commerce. The creditor or title-
holder of a listed privileged credit may request the duty Civil Court of the port where the vessel
presently is or is expected to arrive to place the vessel under arrest.

Chile has neither ratified nor acceded to any of the International Conventions regulating the
arrest of ships. However, according to the “travaux préparatoires” of Book III of the Code of
Commerce, the drafting committee took into consideration the International Conventions of
1926 and 1967 on maritime liens and mortgages. In any event, the grounds for arrest are found
in Book III of the Code of Commerce.

There is no other way to arrest a ship other than through the process described in the next
answer.
4. Are these alternatives e.g. saisie coservatoire or freezing order?

Under the Code of Civil Procedure it is possible to obtain a court ruling ordering the retention
of goods. The retention (in this case, of a vessel) requires counter-security from the petitioning
party as well as evidence for the petition to be granted. In addition, only a vessel under the
ownership of the debtor may be retained.

In Chile a vessel may be arrested in order to exercise a privileged credit or to enforce a final jud-
gment that may result in the judicial sale of a vessel. The list of privileged credits is contained in
articles 844 to 846 of the Code of Commerce.
These are:
Art. 844: The following credits enjoy the privilege over the vessel, with preference over the
mortgages and in the order set down hereunder:
1. - Legal costs and other disbursements caused by reason of a suit, in the common interest of
the creditors, for the preservation of the vessel or for its forced alienation and distribution of
the yield;
2. - The remunerations and other benefits arising from the contracts of embarkation, in accor-
dance with labour and civil law, which regulate the concurrence of these credits, together with
the emoluments paid to the pilots at the service of the vessel.
This privilege shall apply to the indemnities which are due for death or personal injuries of the
servants who may survive ashore, on board or in the water, and always provided that they arise
from accidents related directly from the trading of the vessel;
3. - The charges and rates of ports, channels and navigable waters, together with fiscal charges
in respect of the signaling and pilotage;
4. - The expenses and remunerations due in respect of salvage services rendered and general
52
average contributions. This same privilege shall be applied to the reimbursement of expenses in-
curred by the authority or third parties, in order to prevent or minimize pollution damages or oil
spills of polluting substances to the environment or third party property, when the fund of limi-
tation of liability has not been constituted as established in Title IX of the Law of Navigation, and
5. - The indemnities for damages or losses caused to other vessels, to port works, piers or naviga-
ble waters or to cargo or luggage, as a consequence of the collision or other accidents during
navigation, when the respective action is not susceptible to be founded upon a contract, and
the damages in respect of personal injury to the passengers and crew of these other vessels.
Art. 845: Mortgage credits shall be preferred to those detailed in the following article and shall
be regulated by the provisions contained in paragraph 5 of this Title. This same preference shall
be applicable to the pledge of minor vessels.
Art. 846: Moreover, the following shall enjoy privilege over the vessel in the order numerated,
but in subsequent degree to those indicated in article 844:
1. - The credits in respect of the sale price, construction, repair and equipment of the vessel;
2. - The credits concerning the supply of products or materials, which are indispensable for the
trading or conservation of the vessel;
3.- The credits arising from contracts of carriage of passengers, charter parties or carriage of
goods, including the indemnities for damages and short delivery of cargo and luggage, and the
credits deriving from damages in respect of pollution or other polluting substances.
4.- The credits in respect of disbursements incurred by the master, agents or third parties, on
account of the owner, for the purpose of trading the vessel, including agency services, and
5. - The credits in respect of insurance premiums concerning the vessel, be the hull & machinery
or third party liability insurance.

Yes, the flag a ship flies is irrelevant provided that the requisites for granting the arrest are met.

In the event the vessel is arrested in order to exercise a privileged credit, yes. In case of a reten-
tion under the Code of Civil Procedure, no; since only vessels under the ownership of the debtor
may be retained.
It is possible to arrest a sister ship provided she is under the same ownership, management,
or is operated by the same person. In few words, with regard to liability in rem under Chilean
law, there is no need to have the connection between the relevant person (the person liable in
personam) who also owns the ship to be arrested. As a creditor, you only need to have a credit
that falls within the list of privileged credits, which is the basis for arresting a vessel according
to the Code of Commerce. Provided that you have a privileged credit, you can arrest either the
offending vessel or any sister ship. Under Chilean law, the definition of a sister ship is wider than
that under English law. Sister vessels are not only those under the same ownership (as if both
vessels are owned by the debtor) but also vessels under the same management and/or opera-
tion. Consequently, it is possible to successfully arrest vessel “x” as a sister ship of vessel “y” on
condition that both vessels are managed or operated by the same company, and even if they
are owned by different companies.
9.What is the position as regards Bareboat and Time-Chartered vessels?

In Chile there is no special position in regards to Bareboat and Time - Chartered Vessels. The
title holder of a privileged credit may arrest a vessel provided that she is the material object on
which the privilege is exercised or if she falls within the definition of a sister ship as mentioned
in N° 8 above.

No, Courts do not normally require counter-security in order to arrest a ship to exercise a privi
53
leged credit. However, the Court may ask for security. In the case of a retention under the Code
of Civil Procedure, the Court will require counter-security.
Yes, since in Chile it is only possible to arrest invoking a privileged credit or to enforce a final
judgment that may result in the judicial sale of the vessel.
12. Does your country recognize maritime liens? Under which International Convention, if any.
The maritime liens recognized by Chile are only those listed in N° 5 above.
your law firm?
All things considered (preparation of the application, preparing free translations of the suppor-
ting documents, filing the application for arrest with the Court, notifying the Harbor Master the
Court ruling placing the vessel under arrest, etc.), it may take at least two days, and this is subject
to N° 14 below.
Yes, a POA is mandatory. This occasionally proves to be a problem if the arresting party does
not have permanent legal representation in Chile, or if none of its vessels have called at Chilean
Ports (in which case the port agent or the master of the vessel may grant the POA.) In this scena-
rio, the POA needs to be granted abroad before a Notary or the Chilean Consulate, and in either
case the legalization of a POA may be quite lengthy thereby defeating the natural quickness
required in case of an arrest.
documents require notarization and/or apostille, and when are they needed?
In general, provided that the petitioning party attaches sufficient documents or evidence that
“constitutes a presumption of the right being claimed”, the Court must accede to the petition
without further formalities. As a result, provided the petitioning party has same evidence, which
the Court may deem to be a good presumption of the privileged credit, the Court should grant
the arrest. Consequently, other than the POA, no particular original documents need to be atta-
ched. However, if original documents are available they should be used.
Chile has ratified the Apostille Convention, but internally its application has not been implemen-
ted yet.
16. Will the Court accept jurisdiction over the substantive claim once a vessel has been arrested?
Yes, the substantive claim will normally go to arbitration unless there is an agreement (usually
an arbitration clause) submitting disputes to a foreign Court and provided that such an agree-
ment resulted to be enforceable according to Chilean law. In that situation, the Court will not
assume jurisdiction.

The procedure to release a vessel from arrest is to either present to the Court the exact gua-
rantee (nature and amount) ordered by the Court, in which case the Court has to lift the arrest
immediately, or with the agreement of the arresting party, present an alternative guarantee, for
instance, an LOU, for the amount ordered by the Court or for a different amount negotiated
with the claimant. Alternative guarantees may be presented, but whether they are suitable
substitutes is decided by the Court, who will normally submit the situation to the arresting party.

Normally claimants will ask for and the Courts will order a Bank Guarantee or equivalent, such
us, a cash deposit.
19. Does security need to cover interests and costs?

The security requested by the arresting party will be an estimation of the amount that they will
claim, which normally includes interests and costs.

As mentioned before, normally the only condition to lift the arrest of a vessel is to present the
54
exact guarantee (nature and amount) requested in the petition to arrest. These guarantees will
be a Bank Guarantee or equivalent. LOUs can be presented, and are accepted by the Tribunals,
if they have been agreed with the arresting party to be an acceptable guarantee. The presenta-
tion of an LOU as an alternative guarantee without the arresting party’s consent will normally
result in that the Court will submit the situation to the arresting party, who will have 3 working
days to consider their decision.
If the guarantee produced is exact in nature and amount as the one requested in the petition to
arrest, the Court must lift the arrest immediately. However, sometimes problems are experien-
ced with the bureaucracy of some Courts.

Yes, however this will give rise to an “incidental proceeding” in which the Tribunal will submit
the situation to the arresting party, who will have 3 working days to consider the answer, and
then the issue will be finally resolved by the Tribunal, which is something that will not happen
immediately. In addition, during all this time the ship will remain under arrest until the issue is
resolved.
23. Which period of time will be granted by the courts in order for the claimants to take legal
actions on the merits?
Once the arrest has been granted, there is a 10 working day time limit (which may be extended
to a maximum of 30) to present the lawsuit along with the petition for the appointment of an
arbitrator, as referred in N° 16, and request the arrest to be maintained. This may present a
substantial problem when the arrest is obtained in Chile to secure the enforcement of a future
judgment or award issued abroad. Namely, if the creditor wants to start substantive proceeding
abroad, within the time limit of 10 or eventually 30 working days the creditor will need to prove
to the satisfaction of the Chilean Court that granted the arrest, that the relevant substantive
proceeding has been started abroad. For this the documentation required abroad to start the
proceeding will need to be legalized up to the Chilean Consul abroad. Subsequently, the do-
cumentation will need to be sent to Chile to complete its legalization and then presented (duly
translated) to the Court which granted the arrest. If the arrest has been obtained to enforce a
foreign judgment or award the exequatur from The Supreme Court is sufficient to comply with
this requirement.
24. Do the courts of your country acknowledge wrongful arrest?

Yes, especially in case of failure to commence substantive proceedings within the time limit of
10 or eventually 30 working days, this results in the immediate cessation of the arrest and in
liability for the arresting party.
The possibility to pierce that corporate veil exists. However, there is some very incipient case law
that could be invoked to try to pierce the corporate veil.
26. It is possible to have a ship sold pendent lite, if so how long does it take?
No, it is not possible to sell the ship pendent lite, unless the Court authorizes it or the claimant
provides his consent.
*Leslie Tomasello Weitz is a lawyer and a partner with Tomasello y Weitz, a firm which in addition to its important experience in the
field of shipping, presently advises its clients in a wide range of legal, commercial, financial, insurance and taxation matters. The firm
has offices in Valparaiso, Santiago and Puerto Montt. He has specialized in maritime law and international trade since he joined the
firm. He also litigates insurance and P&I disputes in both arbitration proceedings and before the Civil Court of Chile. He is a professor
of Maritime Law with the Law Faculty of the University of Valparaiso from 1997 until present and has been published on maritime and
international trade both national and international publications.
55
SHIP ARREST IN CHINA (Questions 1 to 9)
By Weidong Chen*
DACHENG LAW OFFICES LLP
weidong.chen@dachenglaw.com
www.dachenglaw.com
24F Shanghai World Financial Center 100 Century Avenue
Pudong New Area, Shanghai 200120
Tel: +86 21 2028 3055
Fax: +86 21 2028 3853

China is one of the major maritime jurisdictions in the world. It is certainly not a ship arrest ha-
ven, but it is a convenient place to arrest a ship at reasonable costs and relatively rapid speed.
A ship can be arrested either for the enforcement of a judgment or arbitral award, or far more
frequently, for obtaining security for a maritime claim. The application can be made either be-
fore an action on merits has been commenced or thereafter. A Chinese maritime court has
jurisdiction to arrest a ship which is located within its jurisdiction even if the parties have agreed
to refer the substantive claim to a foreign court or arbitral tribunal.
The law governing the arrest of ships is mainly the Maritime Procedure Law, 2000 (“MPL”). Ac-
cording to the MPL, to obtain an arrest order, the claimant shall file with the relevant maritime
court a written application together with supporting documents and a prima facie maritime
claim has to be made out. More importantly, counter security will usually be required. It can be
cash deposit or guarantees issued by local banks or insurance companies. The amount of the
counter security is at the discretion of the court and may vary from court to court: it can be 30
days hire of the ship to be arrested or a certain percentage of the claim amount (up to the full amount).
The courts will immediately release the ship when security is posed by the respondent which
can likewise be in cash deposit or guarantees issued by local banks or insurance companies or
in other forms acceptable to the claimant.

China is not a party to the 1952 or 1999 Arrest Convention. However, Chinese law on the arrest
of ships is generally in line with the provisions of the 1999 Arrest Convention.

A ship may also be arrested for a non-maritime claim, however, such an arrest will be granted
only after the claimant has obtained a final and enforceable judgment or arbitral award. Fur-
thermore, although the application for arrest may be filed with an ordinary court, the arrest
shall normally be executed through a maritime court (or its superior court in appropriate cases).

Arrest of a ship is a special type of property preservation measures. Other measures include the
attachment of other properties (tangible or intangible) and the freezing of bank accounts etc.
These measures can be applied for alternatively or in addition to the arrest of a ship if the value
of the ship to be arrested is insufficient to secure the claim.

The MPL lists 22 types of maritime claims which are qualified for arrest of a ship. These 22 types
of claims correspond almost identically to the 22 categories of maritime claims defined in Article
1.1 of the 1999 Arrest Convention as to which arrest of ship is permissible. This list has probably
included almost all kinds of maritime claims that may be encountered in real life.

Yes. What flag a ship flies is immaterial and as long as the relevant conditions for arrest are met
the ship can be arrested.
56
Basically, a ship can only be arrested if her owner is the debtor of a maritime claim. There are
essentially two exceptions:
The first is related to the arrest of a ship under a bareboat charter — such a ship can be arrested
if the bareboat charterer of the ship is liable for the maritime claim and is the bareboat charterer
of the ship when the arrest is effected.
The second exception is related to maritime liens. In respect of claims which enjoy maritime
liens, e.g. claims for crew wages, port charges, salvage, loss of life or personal injury or other
claims in tort (e.g. loss of or damage to property arising from a ship collision), the ship which
gave rise to the maritime liens can be arrested even if she has changed hands (i.e. in the hands
of an innocent party).
Sister ships can be arrested. A “sister ship” means any ship (other than the particular ship giving
rise to the maritime claim) which is owned by the ship-owner, bareboat charterer, time charte-
rer or voyage charterer who is liable for the maritime claim. However, the arrest of sister ships
is not available to claims with respect to ownership or possession of a ship.
The arrest of associated ships is not allowed, unless in the very extraordinary cases where the
court is prepared to pierce the corporate veil and to find that the relevant companies have lost
their separate corporate personalities (i.e. they are in effect one entity).

As to ships under bareboat charters, please see the comments under Question 7. Time charte-
red ships are normally not subject to arrest.
*Mr. Weidong Chen is a partner of the international firm of Dacheng Law Offices LLP, heading its shipping department in the Shangha
Office.
Mr. Chen specializes in bill of lading, charterparty, ship sale & purchase, shipbuilding, collision, personal injury, commodities, and insu-
rance matters. Mr. Chen has been working for the world’s major shipowners, charterers, P&I clubs, insurance companies and traders
for about 15 years and is one of the most highly recommeded shipping lawyers in China. Mr. Chen was recommended by Chambers
& Partners in 2013 and 2015.
Mr. Chen is a supporting member of London Maritime Arbitartors Assocation, and a mediator of Shanghai International Arbitration Center.
57
SHIP ARREST IN CHINA (Questions 10 to 26)
By Xinwei ZHAO*
HIHONOR LAW FIRM
xinwei.zhao@hihonorlaw.com
www.hihonorlaw.com
Suite 11D, 11/F, Best East Mansion,15 Qinling Road,
Laoshan District, Qingdao, 266061. P. R. China.
Tel: +86 532 8082 1133
Fax: +86 532 8082 1136

In general YES. According to Article 4 of the Provisions of the Supreme People’s Court on Several Issues Con-
cerning the Application of Law to the Arrest and Auction of Vessels effective as of 1st March 2015 hereinafter
as Supreme Court Judicial Note on the Arrest and Auction of Vessels, where a maritime claimant applies for
arrest of a vessel, the relevant maritime court shall order the maritime claimant to provide guarantee; but for
the maritime claimant who applies for arrest of a ship is due to disputes over crew labor contracts or com-
pensation for personal injuries suffered at sea or in waters connecting the sea, and the facts are clear and the
relationship of rights and obligations are definite, the relevant maritime court may NOT request the maritime
claimant to provide guarantee /counter-security.
Yes. Maritime Liens shall NOT be distinguished by virtue of the transfer of the ownership of the ship, except
for those that have NOT been enforced within 60 days of a public notice on the transfer of the ownership of
the ship made by a court at the request of the transferee when the transfer was effected. For Maritime Lien
claim, arrest can only be enforced by arresting the particular ship that gave rise to the maritime lien. For a
maritime claim, where owner or bareboat charterer of a ship is the liable party, the ship should be owned by
the owner or should be under bareboat charter period when ship arrest is executed.
Yes. Under Article 22 of China Maritime Code, the following five types of maritime claims shall be entitled
to maritime liens:
(1) Payment claims for wages, other remuneration, crew repatriation and social insurance costsmade by the
Master, crew and other members of the complement on board;
(2) Claims in respect of loss of life or personal injury occurred in the operation of the ship;
(3) Payment claims for ship’s tonnage dues, pilotage dues, harbor dues and other port charges;
(4) Payment claims for salvage payment;
(5) Compensation claims for loss of or damage to property resulting from tortious act in thecourse of the
operation of the ship.
China is not a party to any conventions on maritime liens.
The key elements are Counter-Security, the notarized and legalized POA and certificate of incorporation/
good-standing from a foreign party, which are most time consuming and should be considered and well
prepared in advance .
It is not a problem for hardworking lawyers to prepare arrest documents, but it does take time for court to
examine on arrest documentation, to decide on the format & amount of counter-security, and to prepare
arrest order. According to Art. 17 of the Special Maritime Procedure Law of PR China (SMPL), the maritime
court, having accepted an application for ship arrest, shall make an order within 48 hours; where the order
involves ship arrestas preservation measure for the maritime claim, it shall be executed forthwith. In practice,
an arrest may be ordered and executed within48 hours in case of urgent matter even during non-working
hours.
Yes, POA is a must; in addition, Certificate of Identification of Legal Representative and Certificate of Incorpo-
ration or Certificate of Good-standing of the applicant are also requested in practice, so as to prove theappli-
cantremains active. In addition, following documents should be submitted tomaritime court:
A written Ship Arrest Application signed and stampedby the applicant or its agent ad litem;
58
Preliminary and basic evidence in support of the maritime claim;
Original Counter-Security acceptable to the court;
According to the Supreme Court Judicial Note on the Arrest and Auction of Vessels, the specific amount of
guarantee/counter-security to be provided by a maritime claimant shall be equal to the various maintenance
costs and expenses that may arise during the arrest of the vessel in question, the losses of sailing schedule
due to the arrest, and the expenses incurred by the respondent concerned for the guarantee provided to
lift the vessel from arrest.
Since early 2015, couple of active domestic insurance companies in China launched a new type of insurance
named Property Preservation Liability Insurance, under such insurance, it is for the insurer to issue Letter of
Guarantee as counter-security for the insured (claimant) to apply for preservation of property, including to
apply for ship arrest.
require notarization and/or apostille, and when are they needed?
In theory, Application for ship arrest, notarized & legalized POA and Certificate of Identification of Legal Re-
presentative and sometimes Certificate of Good-standing should be submitted in original at the time of arrest
application is submitted to court. But for urgent matters, maritime court may consider to accept a faxed copy
arrest Application and a faxed or scanned copy of signed/stamped POA/COI, provided on that the Original
notarized and legalized POA and Certificate of Identification of Legal Representative and Certificate of Incor-
poration or Good-standing must be submitted to court by authorized PRC lawyers/agent ad litem, within the
court requested time saying within two weeks or max. within one- month from the date of issuance of the
ship arrest order. Counter-Security must be presented in original by the applicant.
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested
Yes. According to Art. 19 of SMPL, after execution of ship arrest, any party may bring action over the subs-
tantive claimsto the maritime court that effectedthe ship arrest, unless a jurisdiction agreement or arbitration
agreement has been reached between the parties. According to the Supreme Court Judicial Note on the
Arrest and Auction of Vessels,in case any party brings a lawsuit to another competentmaritime court, the
maritime court that arrested the vessel may continue to enforce the preservation measure/ship arrest.

The ship under arrest will be released for the following reasons:
The applicant withdraws his application for arrest;
The respondent provides security satisfactory to the court;
Where the respondent constituted the liability limitation fund for maritime claims, the court shall order
without delay the release of the ship from arrest;
The ship under arrest should also be released or the security provided should be returned to the respondent
if the arrestingparty has not commenced legal proceedings or arbitration proceedings within 30 days from
thearresting date.

Parties in disputes can negotiate on the type and amount of security at any stage; the court will intervene
only when the parties concerned fail to reach agreement on the type or amount of security. In addition to
cash deposit, letter of guarantee issued bybank or insurance company or other financial institution registe-
red within the territory of PR China is usually acceptable to court. Sometimes Letter of Undertaking issued by
International Group P&I Club maybe acceptable to party concerned.

Yes. Security amount ordered in court order is often corresponding to the arresting party’s requested
amount, which often includes bank interest and costs.
20. Are P&I Club LOUs accepted as sufficient to lift the arrest?
Unless agreed by the applicant, PRC courts usually do not accept a letter of under taking issued by a foreign
P&IClub.
It is however encouraging that more claimants’ lawyers in China now tend to recommend their clients to
accept IG P&I Club’s LOU, based on the claims amount, the credibility of the Club and PRC lawyers involved
for the matter.

Following satisfactory security is provided to court or accepted by arresting party, ship under arrest is usua
59
lly lifted soon within 24 hours subject to release application is submitted to court by arresting party. Release
Order has to be served by court to port authority MSA (maritime safety administration) for sailing permit.

Yes. If the respondents are dissatisfied with a ship arrest order, they may apply for review within 5 days after
receipt thereof. The court shall give the result of the review within 5 days after receipt of the review applica-
tion. However, execution of the ship arrest order shall not be suspended during the period of review. Where
a ship arrest is contested by an interested party, the court shall examine the objection and lift the arrest
if the reasons of objection are justified.
23. Which period of time will be granted by the Courts in order for the claimants to take legalaction on the
merits?
The time limit for ship arrest in preservation of a maritime claim is 30 days. Where a maritime claimant brings
an action or appliesfor arbitration within the 30 days, or where a maritime claimant applies for arrest of a
ship in the process of legal action or arbitration, arrest of the ship is not subject to the 30 days’ time limit.

Yes. However wrongful arrest is seldom established in maritime courts’ practice. There is no specific definition
for wrongful arrest under Chinese law. In judicial practice, a wrongful arrest may exist where the applicant
has no merit of maritime claim for ship arrest, or the owners of the ship under arrest are not liable for the
maritime claim, or the amount of security demanded by the applicant is unreasonably high.
If the claimant’s claim ultimately fails and constitutes awrongful arrest, the respondent can bring a claim in
tort against the claimant for wrongful arrest requesting compensation for losses caused thereof, such in tort
claim can be secured by the counter-security provided by theclaimant for ship arrest.
Yes, piercing of the corporate veil is in theory acknowledged by the courts in China, namely in Para. 3, Art.
20 of The Company Law of PRC, which provides that Where any shareholder of a company evades debts
by abusing the independent legal person status of the company or by abusing the shareholder’s limited
liabilities, thereby seriously prejudicing the interests of the creditors of the company, the shareholder shall
be jointly and severally liable for the debts of the company.
However, No judicial interpretation has been issued by the PRC Supreme Court on how to apply this Article
in specific cases, and thereforethe standard of its application may vary from court to court. In judicial practi-
ce, the Chinese courts hold very cautious attitude when applying this article, and it is for the claimant to bear
heavy burden of proof on that the standard of application has been met.
Yes. It takes min. couple of months for maritime court to have a ship sold pendente lite, counting from the
date of ship arrest.
If the respondent fails to provide security within the 30 days’ arrest time limit, and if it is not appropriate to
keep the ship under arrest, the claimant, after having brought an action or having applied for arbitration,may
file an application to the maritime court of ordering the ship arrest, for judicial sale of the ship by auction (sale
of a ship pendente lite).The maritime court shall, after the receipt of a written application for sale of a ship,
examine the application and make an order to allow or disallow the sale.
A maritime court that orders auction of a ship shall issue anannouncement (public notice) in newspapers or
other news media, and the period of announcement for ship auction shall be not less than 30 days.Where
a ship needs to be auctioned off again due to the failure to reach any deal/lower than reserve price in the
first auction, re-auction announcements hall be published seven days prior to the date of auction.After two
auctions have been aborted, aship may be sold at the selling price no less than 50% of its valuation.
*Ms. Zhao is the Managing Partner of HiHonor law firm, she has over 20 years’ experience in shipping law. She obtained her LL.B from
Shanghai (ECUPL) and her LL.M from Univ. of Southampton. She had one year working experience in FD&D with leading P&I Club in London;
she had three months’ working experience with prominent shipping firm in Cape Town of South Africa; and practiced with other two leading P&I
clubs and top international shipping firm in London in 1998. Her major practice coversall aspects of shipping law including both dry and wet,
international trade law and investment. She was selected by All China Lawyers’ Association as one of “The Elite PRC Lawyers of International
Practice” and attended overseas training course in Spain and Brussels in 2014.
Ms. Zhao is a Supporting Member of London Maritime Arbitrators’ Association (LMAA); and an Arbitrator of Korean Commercial Arbitration Board.
60
SHIP ARREST IN COLOMBIA
By Juan Guillermo Hincapié*
HINCAPIE & MOLINA CONSULTORES
juangh@hincapiemolina.com
www.hincapiemolina.com
Calle Real de la Manga nº 21-166, ofc. 1, Cartagena
Tel: (575) 6608339
Fax: (575) 6608339

The ship arrest practice in Colombia is a procedure known by few judges. Unfortunately, in our
country there is not a proper Maritime Jurisdiction, like in Panamá, where this kind of processes
can be guided, therefore the arrest petitions are known and decided by residual Judges who
award at Civil Circuit Courts, so it is the duty of the attorney not only to file the petition itself, but
also to educate the Judge about its nature and urgency.
In order to achieve a successful arrest there are several variables like the immediacy to obtain
the documents to file the petition, the accurate information about the ETA and departure of the
vessel and the pressure given to the local authorities to proceed with the decree of the arrest,
its execution and final lift.
It is very important to mention that a preventive arrest petition is not a lawsuit and its main pur-
pose is to obtain a satisfactory security over a maritime credit/lien, so it not will constitute itself
as an action to define in the merits of the credit claimed, under any circumstance.

The Decision 487 of 2000 of the Andean Community of Nations

Yes, there is.

No, the alternatives given by the Colombian Civil Procedure Code are the precautionary measu-
res that are derived from the lawsuit that contains the substantive claim (the merits); these are
the attachment of the vessel and the sequestration.
5.For which types of claims can you arrest a ship?

These are included in the article 1 of the Decision 487 of 2000, there are 22 kinds of maritime
credits, which are all related to the use of vessel: losses and damages caused by her, death and
injuries, salvage, tugging and piloting operations, environmental damages, fees of the shipping
agent, general average, charter parties, wages of the master and crew members and others.

Yes, it is possible.

Article 41 of the Decision 478 of 2000 establishes that the arrest of any vessel that has an outs-
tanding maritime credit will proceed if:
• The person who is her owner at the moment of birth of the credit is obliged to pay it and is
also the current owner at the moment that the arrest is executed.
• If her bareboat charterer at the moment of birth of the credit is obliged to pay it and is also the
current bareboat charterer at the moment that the arrest is executed.
• If the credit is based on a mortgage or lien of the same nature over the ship.
• If the credit is guarantee by a maritime lien of the Article 22 of Decision 478 of 2000 and if it
is owed by the owner, bareboat charterer, manager
61
According to Article 42 of the Decision 478 of 2000, it is possible to arrest sister ships and ships
in associated ownership.

According to articles 41 and 42 of the Decision 478 of 2000 is possible to proceed against Bare-
boat, Time-Chartered and Voyage-Chartered vessels.

Yes, they do, according to the Colombian Civil Procedure. These are an insurance policy issued
by a local insurer, a bank guaranty or a cash deposit; these counter securities must cover the
10% of the amount claimed.
No, the arrest petition/procedure is the same for both cases.
Yes, the maritime liens are recognized under the rules of the Decision 478 of 2000 of the An-
dean Community of Nations.
your law firm?
There is not a specific time; everything depends on the ETA of vessel and her date of departure.
The attorneys in charge of the filing the petition must “chase” the judge in order to obtain the
quick decree of the arrest order. Few judges in Colombia understand the nature of this kind of
petition; therefore the attorneys have to be as explicit as possible at the moment of explaining
it to the judge. Once the arrest order is issued this must be sent to the Harbor Master Office of
the Port where the vessel is berthed.
Yes, a POA is required to file an arrest petition as attorney; it must be accompanied by a docu-
ment that certifies that the undersigned has the faculty to submit it (This could by the certificate
of incorporation or the certificate of incumbency of the creditor).
The POA and the document that certifies that the undersigned has the faculty to submit it
must have an apostille or the seal of a Colombian consul. This last one must be obtained if the
Country where the POA is submitted has not ratified the Hague Convention Abolishing the
Requirement for Legalization for Foreign Public Documents. Documents related with the credit
alleged can be present in copy and or send via electronic.
Yes, The article 51 of Decision 478 of 2000 of the Andean Community of Nations establishes
that the Court that orders the arrest is entitled to accept jurisdiction over the substantive claim,
unless the parties have agreed any litigation before another State’s Court or Arbitration.

Once the parties agree about the given security and the claimant party accepts and receives a
satisfactory security for its claim, the creditor must proceed ASAP at the Judge’s office to inform
about it and to ask the lift of the arrest. Usually, and in order to obtain the release order quickly,
the petition is submitted for both parties. Once the Judge issues the writ releasing the arrested
vessel, this must be immediately informed to the Harbor Master Office of the Port where the ves-
sel is berthed. If there is not agree between the petitioner and the debtor (vessel) in respect the
type of warranty, the judge, according to the local rules of procedure, has 3 options, to require
or local bank guaranty, local insurance bond and/or cash depot in a local bank.

The security must be satisfactory for the claimant party and it must be negotiated with the
debtor. If such parties do not achieve a settlement regarding the security issue, the Judge may
62
have the power to choose a proper security and its amount. The judge will be entitled to choose
between an insurance policy issued by a local insurer or a bank guaranty. As above, some cases
and depending the nature of the credit, the judge can require a cash depot in a local bank

Yes, it could cover interest and costs if the parties agree so.
Yes, they are, but the claimant party must consider them as satisfactory, otherwise they will not
be accepted.

There is not a specific time limit to release the ship, everything depends on the time taken for
the negotiations between the parties and the speed of the Court to issue the writ that ceases
the arrest order.

Once the debtor is notified of the writ that orders the arrest, there is a right to challenge such
decision if the arrest is considered wrongful.
The article 53 of Decision 478 of 2000 entitles the Judge that decrees the arrest to fix a deadline
to file the lawsuit on the merits, however, this is not is not specified in such treaty and the Co-
lombian Laws do not have an analog rule, therefore the fixation of such is deadline is subjected
to the Judge’s legal reasoning.

Yes, they do. Therefore, it is request a counter-security to the claimant party before the arrest
order is decreed.
Yes, the Courts acknowledge the piercing and lifting of the corporate veil.
Any procedure that result in a Ship’s auction, must be supported in a execution title and after an
execution procedure with a final judgment that order the auction.
*Attorney at law, from Universidad Colegio Mayor de Nuestra Señora del Rosario, with a Magister Degree in Maritime Law and Inter-
national Maritime Negotiations from Universidad Pontificia de Comillas- ICADE - Madrid - Spain, , specialized in Reinsurance, Alois
Alzheimer Program from Munchener Ruck in Germany. Consultant lawyer, Assistant Legal Manager, Assistant Reinsurance Manager
and Advisor to the Presidency of Previsora de Seguros company; Technical Vice-president of Seguros Colmena; Marine broker of Aon
Re Colombia , Lambert Fenchurch de Colombia / UIB Colombia Advisor of Law Firms in England, Canada, U.S.A. and Spain; Training
with Insurance and Reinsurance brokers in the German and English Market.. Professor at the universities of Externado de Colombia,
Autónoma de Bucaramanga, Navy School, Universidad de San Buenaventura at Cartagena, Lecturer before Financial Entities and
Advisor to marine/ Port companies and to reinsurance companies, as well as to multinational companies in marine, port, administrative,
commercial and customs matters., arbitrator admitted in to the list of commerce chambers of Bogota, Barranquilla and Cartagena and
Partner of Hincapié & Molina Consultores.
63
SHIP ARREST IN COSTA RICA
By Abraham Stern Feterman*
PACHECO COTO
abraham.stern@pachecocoto.com
www.pachecocoto.com
Forum II, Edificio Pacheco Coto, 4º
San Jose, Costa Rica
Tel: +506 2505 0900
Fax: +506 2505 0907

Arresting a ship in Costa Rica represents a valuable tool to enforce maritime claims against ship
owners and other related operators due to a length process, which in turn, obligates actual Mari-
time Debtors to react quickly in order to release a detained vessel.
The whole process is regulated and governed under the International Convention Relating to the
Arrest of Sea-Going Ships (Brussels, May 10, 1952) and is executed as a preventive or precautio-
nary attachment. This preventive attachment, which also constitutes a physical arrest of the ship,
operates in the absence of a valid title claim with plaintiff’s right of execution (Referred in our
laws as “Título Ejecutivo”). Under the precautionary attachment process, the creditor holding in
his favour a legitimate maritime claim, is compelled by law to post a cash bond equal to 25% of
the total value of the claim or 50% for none monetary pledges (Such as a Letter of Credit or Bank
Warranties). The holder of a “Título Ejecutivo”, together with a formal ruling form a Court of Law,
exonerates the Creditor to post any type of bonds or warranties.
It is imperative to take into consideration that the creditor filing a preventive attachment shall
file the merits of the claim within a month following the precautionary arrest, providing that its
non¬compliance would result in losing the posted bond in benefit of the alleged debtor.

The International Convention Relating to the Arrest of Sea-Going Ships (Brussels, May 10, 1952).

Yes. With a valid Maritime Lien as provided by the Maritime Commercial Code of 1853. However
take into account that this Code is integrated by many outdated laws and regulations.

Not as a legal institution per se. However, the precautionary attachment as regulated by our Pro-
cedural Civil Code has the same effects and consequences as a “saisie conservatoire”, freezing or-
der and a Mareva Injunction, but not as extensive as the United States Federal Rule B Attachment.

(a) Damage caused by any ship either in collision or otherwise;
(b) Loss of life or personal injury caused by any ship or occurring in connexion with the operation
of any ship;
(c) Salvage;
(d) Agreement relating to the use or hire of any ship whether by charter party or otherwise;
(e) Agreement relating to the carriage of goods in any ship whether by charter party or otherwise;
(f) Loss of or damage to goods including baggage carried in any ship;
(g) General average;
(h) Bottomry;
(i) Towage;
(J) Pilotage;
(k) Goods or materials wherever supplied to a ship for her operation or maintenance;
(1) Construction, repair or equipment of any ship or dock charges and dues;
64
(m) Wages of Masters, Officers, or crew;
(n) Master’s disbursements, including disbursements made by shippers, charterers or agent on
behalf of a ship or her owner;
(o) Disputes as to the title to or ownership of any ship;
(p) Disputes between co-owners of any ship as to the ownership, possession, employment, or
earnings of that ship;
(q) The mortgage or hypothecation of any ship.

Yes, the vessel can be arrested irrespective of her flag.

Not in all cases. There has to be a legal and economic link between the claim and the debtor. Proof
of ownership or use rights (for chartered vessels) shall be presented to the Court within a month
following the precautionary arrest.
Yes, sister ships and ships in associated ownership can be arrested as long as there is a legal and
economic link between the claim and sister ship and associated ship debtor. Proof of ownership
or use rights (for chartered vessels) shall be presented to the Court within a month following the
precautionary arrest.

Any owner, bareboat charterer, operator and/or time charterer can be subject to the arrest of
their vessel if there is a link between the claim and the debt. Proof of ownership or use rights (for
chartered vessels) shall be presented to the Court within a month following the precautionary
arrest.

Yes. A creditor can only file a preventive or precautionary arrest by posting a cash bond equal to
25% of the total value of the claim or 50% for none monetary pledge (Such as a Letter of Credit
or Bank Warranties).
No. From a procedural point of view, there is no difference. However, no counter-security is requi-
red if the arrest is made based on a legitimate maritime lien.
Yes. Costa Rica recognizes maritime liens. The Maritime Commercial Code of 1853 provides list of
the privileged maritime liens. Costa Rica has not ratified any international convention on maritime
liens.
law firm?
It may take up to 7 working days after taking into consideration the preparatory steps, e.g. drafting
the claim, translating supporting documents, if any, filing the arrest claim with the Court, notifying
the Harbour Master and placing the vessel under arrest.
Yes, we require a POA duly apostilled in order to act on behalf any Legal Entity or Person.
15. What original documents are required, what documents can be filed electronically, what do-
cuments require notarisation and/or apostille, and when are they needed?
Since Costa Rica follows a preventive or precautionary attachment, in which posting a bond or
counter-security is mandatory, the initial filing only requires sufficient evidence to create a pre-
sumption of the alleged maritime claim. However, within a month following the precautionary
arrest, the creditor must file the merits of its claim and all the evidence, proof and documentations
has then to be presented with all the formalities of the Law e.g. notarized, apostilled and transla-
ted into Spanish.
65
Not necessarily. Costa Rica ratified the International Convention Relating to the Arrest of Sea-
Going Ships (Brussels, May 10, 1952) with an expressed reserve over article 7 and as such the com-
petent Court to address the substantive claim is the court in which the plaintiff is domiciled or the
court of the vessel´s flag. The reserve does not include disputes as to the title to or ownership of
any ship; disputes between co-owners of any ship as to the ownership, possession, employment,
or earnings of that ship and the mortgage or hypothecation of any ship.

The parties involved in the precautionary arrest have to file a joint motion to release the vessel.
Otherwise, the ship-owner or its agent will have to post a counter security deposit. In either case,
the physical release of the vessel should not take more than 24 hours.

A cash bond or non-monetary pledges such as a Letters of Credit or Bank Warranties.

Usually it has to cover the total amount of the claim plus 50% for interests, costs and fees. However
the Judge has full discretion to establish the final counter security amount.

Generally yes and as long as the parties involved in the precautionary arrest file a joint motion
to release the vessel. A self-filing of an LOU is not sufficient; the acceptance of the claimant is
mandatory.

No more than 24 working hours, excluding weekends and holidays.

Yes. The ship-owner or its agent can file a claim for a wrongful arrest if the claimant does not file
the merits of the claim within a month after requesting the precautionary arrest.
One month.

Yes. Plaintiff bears the risk of arresting the ship. If he loses the preventive attachment or the case
on the merits, his arrest may be considered wrongful and he could have to indemnify all costs and
damages caused to the ship, as a result of such wrongful arrest.
Yes but it is a rarely practice. The burden of proof is very high in order to lift the corporate veil.
If a ship has been arrested and the arrest is not lifted in injunction proceedings or by way of al-
ternative security, the arrest will be maintained until the creditor has obtained a title (judgment
or arbitration award). Once such title is obtained, the conservatory arrest will automatically be
transformed into an executory arrest. This may be followed by a judicial/public sale of the vessel
before the court, if so requested, in which case the court will determine the pre-conditions for
such auction.
*Abraham Stern Feterman is a partner at PACHECO COTO, a multinational firm which in addition to its important experience in the field of
shipping, presently advises its clients in a wide range of legal, commercial, financial, insurance and taxation matters. The firm is headquartered
in San José, Costa Rica, with full operative offices in Guatemala, Honduras, El Salvador, Nicaragua, Switzerland, Spain and New Zealand.
Mr. Stern has a Masters of Laws in Admiralty from Tulane University. He has specialized in Maritime and International Law since 1995 and
was admitted to practice law in the State of Louisiana in 1997. Prior to joining Pacheco Coto, he worked at Chaffe McCall in New Orleans,
Louisiana, where he focused his practice on maritime law, aviation accident law and international corporate transactions.
66
SHIP ARREST IN CROATIA
By Miroljub Macešic & Miran Macešic*
Law Offices MACEŠIC & PARTNERS
macesic@macesic.hr
Pod kastelom 4, 51000 Rijeka, Croatia
Tel: +385 51 215 010
Fax: +385 51 215 030

According to Croatian law the arrest of ships is one of the ‘’interim measures of security of a
claim’’ that ensures future collection of the outstanding debt that is in dispute.
Apart from the arrest of ships other interim measures of security of a claim on ships are possible,
but in practice are very rare.
The objective of the arrest of a ship is to make available to the creditor assets of the debtor for
future enforcement. Therefore, arrested ships may be released if another security is given as
replacement. The other security may be a monetary deposit, bank guarantee, P & I Club or other
corporate letter of undertaking or other values that are available for enforcement if accepted by
the creditor. If the creditor does not accept the offered security, the acceptability of the offered
security will be decided by the court. Monetary deposits and bank guarantees are always accep-
ted, while P&I Clubs/corporate letters of undertaking and other values on a cases to case basis.
Because of various issues with international elements, and in particular the applicability of fo-
reign laws, that are involved in the arrest of ships there are sometimes inconsistencies in the in-
terpretation of the rules of law and in-court practice. However, such cases are exemptions, and
it may be said that it is possible to obtain the arrest of a ship or obtain the release of an arrested
ship in accordance with accepted international standards.

Croatia has adopted the continental legal system. It is a member-state of the Arrest Conven-
tion 1952. The Enforcement Act applies as a subsidiary source of rules of law to the Maritime
Code that regulates arrest of ship proceedings. There is significant court practice and number
of books and articles that deal with various relevant issues with regard to the arrest of ships. Ma-
ritime Code applies if there is no direct applicability of the Convention. Maritime Code Amend-
ments in few provisions slightly differ from the Convention.

No, there is no other way to arrest a ship with the purpose of security of the claim. According
to the Paris Memorandum the Harbour Master Office Inspectors, exercising Port State Control
authorities, can order the detention of a ship. The Custom authorities and the Criminal Court
can hold the ship in temporary seizure for customs clearance or criminal proceedings purposes,
but in practice very rarely and under very restricted terms.

Not in the sense of these alternatives and as these alternatives are known internationally. Howe-
ver, the Maritime Code provides that every interim measure that would achieve the objective of
security of a particular claim may be granted. In other words, subject to the nature of the claim,
67
various injunctions with regard to the ship are possible, but rare in practice.

A ship can be arrested for:
- maritime claims as provided by Art. 1 of the Convention; apart from bottomry and ownership
claims, that are not provided in the Maritime Code, when Convention is not applicable,
- maritime liens as maritime privileges (separately provided in the Maritime Code),
- claims secured with mortgage, pledge or other similar registered encumbrances on the ship
according to the laws of flag (separately provided in the Maritime Code).
For all other claims notwithstanding to the nature, if there is no reciprocity between Croatia
and the state of flag.

Yes, there are no limitations for the arrest of ships with regard to the flag of the ship. The Flag
of ship affects to the applicability of the Convention or the Maritime Code, the existence of
maritime privileges (liens) and registered encumbrances. It also possibly affects some other un-
derlining issues subject to particular matters.

For maritime privileges (liens) and registered encumbrances, yes.
In the case of direct applicability of the Convention, the answer is yes, as it is provided in the
Convention.
For maritime claims depends on the applicable law for merits of the matter.
The main principal of Maritime Code as regard to the debtor and the arrested ship is that the
arrested ship as an asset is the property of the debtor. In Croatia there is no ‘’in rem’’ procee-
dings, but only ‘’ad personam’’.
If the foreign law that applies to the merits of the matter provides ‘’in rem’’ liability, and the debt
is born with regard to the ship, the answer is yes. In this case the opposing party in the applica-
tion for arrest should be the debtor who is not the owner of the ship.
Sister ship and ship in associated ownerships may be arrested although in these cases the Mari-
time Code also slightly varies to the Convention.

According to the Maritime Code ships in Bareboat or Time Charter may be arrested if there is
direct applicability of the Convention, or if applicable foreign law for merits of the matter provi-
des ‘’in rem’’ claim, or if the principal debtor is the owner of the ship in Bareboat or Time-Charter
(see answer under point 7.).

No, the Courts do not require a counter-security in order to arrest a ship. However, the ship’s
interests may apply for counter-security in case of wrongful arrest as condition for maintenance
of already ordered arrest. If the application is accepted and the counter-security is not placed
within the ordered time period, the arrest will be lifted and the arrested ship released.
No, from the procedural point of view there is no difference.
Yes, Maritime Code defines maritime liens as maritime privileges. Provisions on maritime liens of
the Maritime Code correspond to the International Convention on Maritime Liens and Mortga-
ges, Geneva 1993. Croatia has not ratified any convention relating to maritime liens. However,
since Maritime Code provides that a ship may be arrested for maritime liens and since according
to the conflict of law rules the law of flag applies to maritime liens, a ship can be arrested for
maritime liens.
your law firm?
In principal several hours are needed for the preparation of the application, translation of sup-
porting documents by a licensed court interpreter (one is part of our office staff) and to file the
68
application for arrest with the Court. The Court will check with the Harbour Master Office the
expected time of sailing and will decide on the application urgently before sailing, if in pressure
of time. Arrest matters are always considered urgent and in most cases the Court will decide
within one or two days. The ship is arrested when the Harbour Master Office serves the Master
with the arrest order and takes away the Ship’s documents which remain in custody of Harbour
Master Office during the arrest.
Yes, the POA is a mandatory requirement of the arrest proceeding. For the arrest application a
faxed or e-mailed copy is sufficient, while the original must be submitted to the Court within few
days. No special form or legalization is required to grant a POA to an attorney at law.
The applicant must make the claim probable. Probability is a lower level of proof. The difference
between a claim made probable and a proven claim is qualitative. Therefore it is recommenda-
ble that as stronger as possible evidences of the claim are provided.
The applicant should make probable that the ship in question can be arrested, usually meaning
evidence of ownership. There is no need to submit an extract from the Ships’ Register, but any
other public or private document, including electronic data is sufficient.
No original documents are required, copies are sufficient, apart from the application for arrest
that must be in original, as well as POA that must be submitted within reasonable time after the
filing of the application. Electronic filings with the Court are not possible for time being, but the-
re are preparations in course and electronic filings with the Courts will be possible in the future.
There are no documents that should be notarized or with apostille.
Yes, unless there is agreed or exclusive jurisdiction of another country, or if no arbitration is
agreed between the parties. In latter cases the courts will accept that the arrest is properly justi-
fied if the litigation or arbitration are initiated in other jurisdictions.

The ship will be released from the arrest if; (1) the applicant withdrew the motion for arrest, (2)
if the applicant agreed to replacement security, (3) if the Court accepted replacement security,
or (4) the opposing party’s remedy was accepted and Arrest Order set aside.
In the first two cases the Court will issue Release Order within one or two hours from the receipt
of respective parties’ submissions.
In the two latter cases Release Order will be included in the Court’s decision on acceptance of
replacement security or acceptance of the legal remedy.
In all case Release Order will be granted as the matter of urgency.

General provision of Maritime Code is that the security must be available and transferable to the
applicant. Further, the applicant should notify the Court whether agreed to the security.
If the applicant notified the Court that it agreed to offered security, the Court will immediately
release the vessel from arrest.
When the applicant did not agree with the security, the Court will decide whether offered secu-
rity is accepted or not. If yes, the vessel will be released immediately.
In the court practice it is clarified that monetary deposit and domestic bank guarantee (usually
granted against foreign bank counter-guarantee) are always accepted by the Court. P&I LOUs
are mostly accepted (see also answer under point 20). Other corporate guarantees, LOUs and
other values are considered on case to case basis, but rarely acceptable.

Yes, the security must cover the interests and costs. Usually, security amount is approximately 25
percent higher than the amount of the principal claim.

P&I LOUs issued by the Clubs members of IG and highly ranked by reputable rating company
are always accepted by the Courts. Other P&I LOUs are considered on case to case basis.
69
Release of the ship is always considered by the Courts with urgency. It takes one to two hours
for the Court to issue Release Order and serve it to the Harbor Master Office.

Yes, the opposing party may place the remedy.
Since the Arrest Order is granted ‘’ex parte’’ the first instance Court may reconsider the matter
on the ground of the remedy and set aside the Arrest Order if it found remedy grounded.
Otherwise the remedy will be decided by the Court of Appeal. The Courts should decide on
remedy as matter of urgency.
As a matter of law it is mandatory that the arrest is justified by initiating the proceeding in the
merits within 15 days from the service of the Arrest Order. In case the applicant fails to under-
take legal action within the time limit, or notify the Court accordingly, on motion of the ship’s
interests the Court will set aside the Arrest Order and release arrested ship.

Yes, the Courts acknowledge the wrongful arrest. In case of a wrongful arrest the ship’s inter-
ests are entitled to claim indemnity from the applicant who wrongfully arrested the ship. The
claim for indemnity should be placed in the same arrest proceedings if it is still in course. If the
arrest proceedings is terminated the claim should be placed in a separate litigation proceedings.
Piercing (lifting) of the corporate veil is known to domestic law, however there is not sufficient
and proper court practice that acknowledges this institute. The same is in arrest matters. There
have been very few cases with regard to the piercing of corporate veil. However, it may be
expected that in future there will be more cases that will clarify this institute and the terms of
applicability.
Maritime Code has no provisions on pendente lite sale. Enforcement Act, that is subsidiary sou-
rce of law in arrest of ships proceedings, provides pendente lite in certain circumstances that
might be applied also in the case of arrested ships. It may be said that there a legislative frame
for pendente lite sale exists. It is also an issue that should be clarified in future.
*Miroljub Maćešić (1954) is the founder and Senior Partner at Law Offices Macesic and Partners. Mr. Macesic holds a law negree from Rijeka
University. The Law Offices assist in all maritime and related matters in Croatian through the offices in Rijeka and Zagreb. The maritime team
includes six lawyers.
Mr. Macesic has more than 37 years of professional experience, especially in maritime, dispute resolution, insurance, banking & finance,
energy and corporate law. He is listed correspondent to all major P&I Clubs (members of IG) and acts on case to case basis to other liability,
H&M and cargo underwriters, insured interests, shipowners, operators and other maritime related interests. He assisted all major financings in
Croatian shipping and shipbuilding industry by foreign banks, major bankruptcies and restructuring processes. He also acts as the trial lawyer
in court, arbitrations and mediation proceedings. With Croatian EU membership he also focuses on EU law.
*Miran Maćešić advises and represents international clients in commercial, maritime and energy matters particularly international traders of oil
and other commodities on cross-border trades, requirements for the trading of physical oil and liability risks in relation to trading physical cargos
of oil. P & I correspondent handles H&M and cargo damages and PI matters.
Croatian Bar Association, International Bar Association, Croatian Maritime Association
International Baccalaureate, BA from Syracuse University, LLM from University of Rijeka, Partner at Macesic & Partners.
Co-author of articles in ‘International Law Office’ newsletter, co-author in publications ‘Getting the Deal Through – Electricity Regulation’,
‘Getting the Deal Through – Gas Regulation’, ‘The International Lawyer’, contributed to the “Civil liability, financial security and compensation
claims for offshore oil and gas activities in the European Economic Area”
70
SHIP ARREST IN CURACAO
By Jan A.M. Burgers*
BURGERS ADVOCATEN
jan.burgers@burgersadvocaten.com
www.burgersadvocaten.com
Bramendiweg 21 (Kintjan) Willemstad, Curacao
Tel: + 599 9 46 51 605
Fax: + 599 9 46 51 604

In Curacao, as in the other (is) lands of the Netherlands Caribbean and in the Netherlands, the
procedure for arresting a vessel is straightforward and quick. When petitioning for an arrest a
claimant can suffice with only a brief substantiation of its claim. Normally the Curacao Court
will allow the arrest for the principal increased by 30% for interest and costs. The attachment
is made on board the ship by the bailiff. Ships under arrest in the Port of Curacao will not be
able to sail without the cooperation of local authorities (pilot service, towage etc.), which coo-
peration will not be given without confirmation from the arrestor that the arrest has been lifted.
A conservatory arrest is to be lifted against sufficient guarantee. In summary proceedings the
arrestee may demand lifting of the arrest. In case of wrongful arrest the arrestor will be liable
for damages. A conservatory arrest will establish local jurisdiction in case elsewhere a judgment
executable in Curacao cannot be obtained.

Curacao is party to the 1952 Brussels Arrest Convention. The Convention is not incorporated in
Curacao Law and only applies when a conservatory arrest is sought of a ship flying the flag of a
country being a party to this convention.

In case the 1952 Brussels Arrest Convention does not apply conservatory arrest of a vessel is
allowed for all claims recoverable on the vessel including any claim against the owners.
Executory arrests are allowed with regards to judgments rendered within the Kingdom of the
Netherlands.

No.

In case the 1952 Brussels Arrest Convention is applicable arrest of a ship is only allowed for
maritime claims as defined in the Convention. If Dutch law applies a ship may be arrested for
any type of claim.

Except for Russian State Owned vessels; yes.

In principle, according to Curacao Law, if according to applicable law a claim is recoverable on
the vessel, then an arrest is allowed. In certain cases recovery on a vessel is possible for claims
against others than the owner, for instance the bare boat or time charterer, or for claims that
attach to the vessel irrespective of the identity of the owner.
According to Curacao law in principle any asset of a debtor may be arrested in order to obtain
security for a claim, and thus, according to Curacao law, a sister ship may be arrested. If a ship
is owned by more than one owner, the ship can still be arrested for a claim against one of the
associated owners.
71
Vide answer to question 7.

The Curacao Court may require counter-security, in practice this rarely happens.
The common law concept of “maritime lien” is unknown in Curacao law. However, if a maritime
lien means that according to the applicable law a certain claim attached to a vessel irrespective
of the question in whose hands (under whose control) that ship may be, arrest for such claim
is possible.
Curacao is not party to any convention on maritime liens. Claims having the legal status of being
attached to the ship, may qualify for an arrest.
your law firm?
In straight forward matters it may take no more than one or two hours to have a ship arrested.
To petition for conservatory arrest, claims are only to be demonstrated summarily. POA is not
required. In ensuing injunction proceedings further substantiation might be required.
In principle original or notarized documents are not required.
The arrest establishes local jurisdiction which serves as a residual jurisdiction in case elsewhere
a judgment which is executable in Curacao cannot be obtained.

The arrestor orders the bailiff to lift the arrest, the bailiff notifiest he vessel as well as the harbor
authorities.

Curacao procedural law only prescribes that the ship is to be released against “sufficient gua-
rantee”

The security is to cover the amount estimated by the Judge who allowed the arrest. His estimate
normally includes 30% of the principal amount for interest and costs.

Depending on circumstances.

1-2 hours.

Arrest can be contested in summary proceedings. A Judge in such summary proceedings will
order the release of the vessel if nullifying forms have not been observed, if the arrested sum-
marily demonstrates that there is no merit what so ever to the claim, or if sufficient guarantee
is or has been provided.
Standard period is 2 weeks, but normally longer or prolonged periods can be obtained without
72
much difficulty.

Yes
In very limited circumstances; yes
26. Is it possible to have a ship sold pendentelite; if so how long does it take?
After an executory title has been obtained which is immediately enforceable, by operation of
law a conservatory arrest will transform into an executory arrest, also pending continuation of
the proceedings in for instance appeal.
*Jan A.M. Burgers worked as a mate in the Netherlands Merchant Navy and in the North Sea off-shore industry. Served as a pilot in the-
Netherlands royal navy. Joined the bar in 1999. Acquired extensive experience in the fields of construction and maritime law and in local and
international (arbitration) proceedings. Is part-time lecturer maritime law at the University of Curacao.
73
SHIP ARREST IN CYPRUS
By George Zambartas & Dr. Sonia Ajini*
L. G. ZAMBARTAS, LLC
gz.law@zambartaslaw.com.cy
www.zambartaslawoffices.com
Euro House, 1st Floor, 82
Spyrou Kyprianou Street,
Limassol 4043, Cyprus
Tel: 00357 25373734
Fax: 00357 25725502

The Cyprus Admiralty jurisdiction is exercised by the Supreme Court which by virtue of rule 50 of the
Admiralty Jurisdiction Order gives an absolute right for arrest of the vessel or property. However, by
virtue of an amendment to the Courts of Justice Law (Law 136 of 1991), any admiralty case, irrespec-
tive of the amount of the claim, will be tried by the District Courts.
It is necessary for the Admiralty Court to be satisfied that there is a serious matter of trial and that on
the facts presented there is a probability that the claimant is entitled to relief. In the event that the
application for the arrest of a vessel is successful, the Admiralty Court will require the following from
the claimant:
a) Lodgement of a deposit for the expenses which may be incurred by the Admiralty Marshal in con-
nection with the custody and supervision of the vessel whilst under arrest;
b) Lodgement of any other amount of money required by the Registrar for the expenses of the arrest; and
c) Posting a security bond by way of a Cyprus Bank Guarantee.
Failure to comply with the above requirements will automatically result in release of the vessel.

Cyprus is not a party to the 1952 Arrest Convention nor the Brussels Liens and Mortgage Conven-
tions. The United Kingdom signed the said Arrest Convention in 1952 and the Administration of
Justice Act Part 1 was subsequently passed in order to enable the United Kingdom to ratify the Arrest
Convention. The said Act is applicable in Cyprus by virtue of its Constitution and section 29 of Law the
Courts of Justice Act (14/60).

No, there is no other way to arrest the vessel. In cases where the claimant cannot proceed with the
arrest of a vessel, he may seek a “freezing” Mareva injunction which is normally granted when the
defendants have no further assets in Cyprus and there is risk of alienation/ dissipation of assets. The
application for a Mareva injunction is made ex parte.
4. Are there alternatives e.g. saisse conservatoire or freezing order?

A “freezing injunction” is an option.

The Admiralty Court has jurisdiction to hear the following claims:
a) claim to possession or ownership of a vessel or to ownership of any share therein;
74
b) question arising between the co-owners of a vessel as to possession, employment, or earnings of
that vessel;
c) claim in respect of a mortgage of or charge on a vessel or any share thereof;
d) claim for damage done by a vessel;
e) claim for damage received by a vessel;
f) claim for loss of life or personal injury sustained in consequence of defect in a vessel or in her appa-
rel/ equipment, or of a wrongful act, neglect, or default of owners, charterers, or persons in posses-
sion or control of a vessel or of master or crew thereof or of any other person for whose wrongful acts,
neglects, or defaults owners, charterers, or persons in possession or control of a vessel are responsible,
being an act, neglect or default in navigation or management of the vessel, in loading, carriage, or
discharge of goodsor in embarkation, carriage, or disembarkation of person;
g) claim for loss or damage to goods carried in a vessel;
h) claim arising out of any agreement relating to carriage of goods in a vessel or to use/charter; i)
claim in nature of salvage;
j) claim in nature of towage in respect of a vessel;
k) claim in nature of pilotage in respect of a vessel;
l) in respect of goods or materials supplied to a vessel for her operation or maintenance;
m) claim in respect of construction, repair, equipment of a vessel, dock charges/ dues;
n) claim by a master or crew for wages and claim by or in respect of a master or crew for any money
or property which, under any provisions of the Merchant Shipping Acts 1894-1954, is recoverable as
wages at Court or in the manner in which wages may be recovered;
o) claim by a master, shipper, charterer, or agent in respect of disbursements made a vessel’s account;
p) claim arising out of a general average act;
r) claim arising out of bottomry; and
s) claim for the forfeiture or condemnation of a vessel or of goods.

You can arrest a ship in Cyprus irrespective of her flag.

You can arrest a ship in Cyprus irrespective of the debtor unless the debtor is in a position to claim
sovereign immunity.
The Administration of Justice Act 1956 is applicable in Cyprus. Although section 3(3) of the said Act
enables a claimant to arrest a vessel to which a maritime lien attaches, no provisions are contained
therein in respect of the arrest of a “sister vessel”. This situation is compensated by section 3(4) of the
Act which provides that the admiralty jurisdiction of the High Court may be invoked (whether the
claim gives rise to a maritime lien over the vessel or not) by an action in rem against “..... (b) any other
ship which, at the time when the action is brought, is beneficially owned as aforesaid”. It should be
distinguished that a person who possesses a maritime lien in respect of that “other ship” has no higher
right or priority than that enjoyed, under circumstances by a statutory lienee.

Bareboat Owners and Time Charterers are viewed as ‘disponent owners’ of vessels. In the case the
claims mentioned in (d) to (r) above, where a person who would be liable on claim in an action in
personam was, when the cause arose, owner or charterer of, in possession or in control of, the vessel,
the Admiralty jurisdiction of the Supreme Court may be invoked by an action in rem against:
a) the vessel, if at the time when the action is brought, she is beneficially owned in respect of all the
shares therein by that person; or
b) any other ship which, at the time when the action is brought, is beneficially owned as aforesaid.

The claimant is required to post a security bond by way of a Cyprus Bank Guarantee in respect of da-
mages that the defendant vessel might suffer if the arrest proves to be wrongful. The amount of the
security to be provided is at the discretion of the Court which will take into account all circumstances
of the case. Usually, 10% to 15% of the claimed amount will need to be put up although in a few ex
75
ceptional cases we have seen the court order as much as 50% of the claimed amount.
There is no difference in the procedure between a maritime lien and a maritime claim. However it
should be noted that under Cyprus Law maritime liens enjoy certain advantages over all other per-
mitted actions in rem.
Under the English Administration of Justice Act 1956, the following maritime liens are recognised
under Cyprus Law:
a) Bottomry;
b) Salvage;
c) Wages;
d) Master’s Wages;
e) Disbursements and liabilities; and
f) Damage done by a ship.
It will normally take between 2 - 4 business days to arrest the vessel from the moment we receive
supporting documents and instructions.
No POA is required to bring the claim and present the Arrest Application to the relevant Court.
All admiralty actions whether in rem or in personam are instituted with the issue of a writ of summons.
Name, place of residence, occupation of every claimant and defendant and a concise statement of the
claim made or relief/ remedy sought, should be included in the structure of the writ.
The issue of the writ gives the claimant a right against the vessel which originates from the cause of
action in rem and crystallizes upon the arrest of the vessel.
The claimant should file with the Court an affidavit appertaining to the nature of the claim and stating
that the aid of the Court is required.
The substantive claim must be issued in the Admiralty Court by writ of summons for the arrest to be
granted. In an action against the vessel, her physical presence within the jurisdictional waters of Cy-
prus is essential for the foundations of the Court’s jurisdiction in rem.

The procedural rule sets out that any person may file an application for releasing a vessel under arrest
and that the Court may order the release of such vessel upon such conditions, after lodging a security
or payment of any estimated costs with regard to the removal of the vessel. Thus, any application for
the release of a ship should be conducted through the submission of an autonomous action for such
release. There are instances whereby a confirmation by the Registrar of the Court to the Admiralty
Marshal will be adequate for the ship to be release from arrest, after the security is paid.

The type of security is usually in the form of a Cyprus Bank Guarantee.

When evaluating the amount requested for security, it is usually the case that the security cannot be
more than what the ship is worth.
A claimant will also ask for interest and costs, however the initial arrest expenses are paid by the
arresting party to the Admiralty Marshal who is responsible for the maintenance of the vessel, while
it is under arrest.
76
P&I & LOUs are not recognised by Courts; Courts require the Bank Guarantee in order to lift the arrest.

It depends on the circumstances of each case. If security is paid, and the Court orders for such release,
usually within a day the vessel can be released.

Yes, wrongful arrests are recognized under Cyprus Law and test for wrongful arrest is primarily “bad
faith”.
on the merits?
Under Cyprus Law, in an action in rem, the writ of summons must be served at least 21 days, and in
an action in personam, at least 10 days, before the date named in the writ of summons for the appea-
rance of the parties before the Admiralty Court.

Cyprus Courts acknowledge concept of wrongful arrest, hence the requirement for the claimant to
post security.
Cyprus Courts will only pierce and lift the corporate veil in very exceptional circumstance (basically
fraud).
It is possible to have a ship sold pendente lite.
Typical grounds for an application are that a vessel is costing a disproportionate amount in daily
expenses or is deteriorating owing to being under arrest for a long time or that a cargo is perishable.
Therefore, the continuing and mounting expenses of arrest and the fact that goods are deteriorating
are good reasons which a Court may consider in ordering the property to be sold pendente lite.
It is very difficult to advise on the precise timescale involved as this will largely be determined on a case
by case basis and any objection by the Respondent to the Application will greatly prolong the process.
*Mr. George Zambartas holds a Bachelor of Arts degree in Law and Politics from the University of London’s Queen Mary College
and has over 20 years experience as a lawyer in England and in Cyprus. He has extensive experience in shipping encompassing
ship financing, maritime claims (including ship arrest), ship management and purchase/sales of ships, including new builds. He has
been instructed by leading international law firms and banks to provide legal opinions on high value shipping transactions on matters
of Cyprus Law. He has undertaken ship registration, re-flagging, re-naming and parallel registration in all major registries around the
world. He has also given presentations on numerous shipping topics at various seminars. He moved to Cyprus in 1999 to take up the
position as in house Legal Advisor of a global Shipping Company with a fleet of over 100 vessels. In August 2008 he set up his own
law firm L.G. Zambartas LLC.
*Dr. Sonia joined L.G. Zambartas LLC in February 2010. In 2003 she graduated from the Law Faculty of the University of Matej Bel in
Slovakia where she obtained her Master’s degree in Law. In 2005 she also obtained academic title doctor of law with her major subject
being International Law. In 2007 she obtained the Postgraduate Diploma in Maritime Law at the London Metropolitan University and
in 2014 she obtained an LLM in maritime law. She predominantly deals with commercial, contract, companies laws, maritime claims,
maritime and admiralty law, alternative dispute resolution in Cyprus as well as intellectual property law.
In 2011 Sonia became a vice-president and director of Women’s International Shipping and Trading Association Cyprus and secretary
general of the Cyprus Arbitration and Mediation Centre.
77
SHIP ARREST IN DENMARK (Questions 1 to 9)
By Henrik Kleis*
DELACOUR
hk@delacour.dk
www.delacour.dk
Aaboulevarden 13
8000 Aarhus C, Denmark
Tel: +45 7011 1122
Fax: +457011 1133

Arrest of vessels in Denmark can be made very fast and on an informal basis, i.e. without POA,
original invoices and notarized and authenticated documents. The rules are quite flexible and
the Danish court system works efficiently. The costs of an arrest in Denmark are low.

Denmark is party to the 1952 Arrest Convention and the provisions of this convention have
been implemented in Chapter 4 of the Danish Merchant Shipping Act. The Danish law on arrest
of vessels thus to a high extent reflects the provisions of the Arrest Convention.

Yes. An arrest according to the Danish Administration of Justice Act prevents the owner from
transferring title to the vessel or issuing new mortgages when the arrest is registered in a Ship
Register but the vessel is not detained in a port or otherwise prevented from operating. There-
fore, an arrest of a vessel according to the Administration of Justice Act is often of no interest;
however, it may be applied when there is no maritime claim or when an arrest is made in cargo,
freight, or bunkers etc.

No. The only alternative is an arrest according to the Danish Administration of Justice Act which
the courts only grant in rare circumstances.

Maritime claims are the basis for arrests according to the Merchant Shipping Act and are defi-
ned in accordance with the Arrest Convention. For a list of the individual maritime claims refe-
rence is made to Arrest Convention art. 1.

Yes.

Contrary to the Arrest Convention and the laws of some other countries, arrest in Denmark
requires that execution of the claim can be levied against the owner of the vessel, meaning that
the registered owner of the vessel must be liable for the claim/the debtor of the claim, unless
the claim is secured by a maritime lien. Consequently, claims for which a charterer of the vessel
is liable, do not form basis for arrest of the vessel as the owner of the vessel is not liable and no
execution of the claim against the owner is possible. However, assets owned by the charterer,
e.g. bunkers, may be arrested in accordance with the Administration of Justice Act.
Sister ship arrest is possible, i.e. vessels that are owned by the same legal entity. Arrest of vessels
in associated ownership is not possible as the vessel is not owned by the same legal entities.
78
Arrest of a vessel under a bareboat or time charter party is not possible as the registered owner
is not liable for the claim/the debtor of claim. Only in case the owner is found to be the debtor
of the claim an arrest is possible.
*Henrik Kleis is head of DELACOUR’s department specialising in Transport and Trade which consists of 6 attorneys. What is distinctive
about the department’s size and the scope of tasks is that DELACOUR to a larger extent than other Danish law firms represents all kinds of
businesses within transport and shipping.
Henrik primarily deals with transport and shipping and international commerce, and is engaged in conventional transport law cases.
Hence, he represents a large number of shipping lines, freight forwarding companies, ship brokers/agents and road carriers.
Furthermore, Henrik Kleis represents most of the Danish ports and handles a long line of varied cases for the ports. The Danish association
Danish Ports has thus appointed Henrik Kleis as their representative in ESPO - European Seaports Organisation - Legal Committee.
As Henrik deals with matters of the business world, he therefore holds positions in a number of boards in Denmark and abroad.
Moreover, he is Honorary British Consul.
79
SHIP ARREST IN DENMARK (Questions 10 to 26)
By Peter Schaumburg-Muller*
HAFNIA LAW FIRM
psm@hafnialaw.com
www.hafnialaw.com
Nyhavn 69, DK-1051 Copenhagen K, Denmark
Tel: +45 33 34 39 00
Fax: +45 33 36 39 20

The courts have a discretionary right to demand counter security. Pursuant to the MSA such
security should not exceed the equivalent of 5 days charter hire for the vessel in question. The
courts invariably demand counter security equivalent to 5 days charter hire. In order to determi-
ne the relevant daily hire a shipbroker should be requested to provide an estimate. In this regard
it is sufficient to provide an exchange of emails with a shipbroker.
The formal requirements are the same but as mentioned above arrest for a maritime lien can be
made irrespective of the owner of the vessel.
Danish law recognises maritime liens. The rules regulating maritime liens are found in the MSA
and are based on the 1967 Brussels Lien Convention. In order to determine whether a claim
creates maritime lien it may not be sufficient to resort to Danish law. The maritime liens may
be determined according to the law of the flag of the relevant vessel. Scandinavian case law
supports that the law of the flag is relevant in this regard although the issue is untested under
Danish law.
your law firm?
An arrest can typically be obtained within a day. Certain local courts may need further time and
may not be available for an arrest during the weekend or nights.
No POA is required. In order to establish the claim only copies of the pertinent documentation
is required.
No original documents are required nor apostille. Documents can be e-mailed to the courts.
The courts will accept jurisdiction over the merits. However, if the underlying agreement sup-
porting the claim is subject to arbitration or litigation in a foreign forum the courts will not
assume jurisdiction. In such case validation proceedings must nonetheless be commenced as
a formal requirement but they will immediately be postponed pending the outcome of the
arbitration or foreign litigation. Arbitration or foreign litigation must be pursued without un-
reasonable delay.
17.What is the procedure to release a ship from arrest?

There is no formalized procedure and a petition to release the ship can simply be sent to the
court by e-mail.

The only requirement is that the security must be adequate to cover the debt including ex
80
pected interests and the cost of the arrest, the cost validation proceedings and the cost of the
proceedings on the merits.

Yes.
Yes.

Generally speaking, the release can be done within one work day.

The arrest can be contested during the validation proceedings.
Validation proceedings must be commenced within one week from the date on which the
arrest has been granted or two weeks if the forum of the validation proceedings is not Danish.

Yes. The arrestor is liable for wrongful arrest on a strict liability basis for any loss caused by the
arrest. There is no relevant case law regarding liability but it cannot be ruled out that the right
to compensation is influenced by the fact that the owner can avoid the effects of an arrest by
providing a guarantee for the amount in dispute.
The notion of piercing the corporate veil exists under Danish law but is limited to very special
circumstances were there has been e.g. a mix of funds between the companies or where busi-
ness has been otherwise conducted as if two companies were one.
If the claim is not paid and no security is lodged for the claim the arrestor may ultimately sell the
vessel by way of forced sales proceedings. It is a prerequisite for an auction that the arrestor has
obtained an attachment against the vessel. Such attachment can only be obtained once the
validation proceedings (whether litigation or arbitration) have been completed. Arrest based
on a mortgage does not require validation proceedings and an attachment can be obtained im-
mediately. Depending on the case load of the relevant local court it may take from 3 months up
to 1 year until forced sales proceedings have been carried out. Certain notification requirements
exist in respect of auction of foreign vessels (notification to the flag state and advertisement in
the flag state).
*Peter Schaumburg-Müller is a partner with HAFNIA LAW FIRM. Peter was born in 1950 and obtained his law degree from the University
of Copenhagen in 1976. Additionally, Peter has studied maritime law with the Scandinavian Institute of Maritime Law in Oslo and studied
international law at the University of Aix en Provence. Throughout his career Peter has been specialised in shipping related matters. Peter has
worked with Skuld P&I Club. In 1981 Peter established the law firm of Schaumburg-Müller & Co. – the predecessor of HAFNIA LAW FIRM.
Peter is a member of the board of Danish shipping companies including suppliers, ship owners and operators and he has an extensive network
in the Danish shipping industry.
Hafnia Law Firm is a boutique law firm dedicated to shipping law. The firm acts in all types of disputes and transactions within the field of
shipping and transportation.
81
SHIP ARREST IN DOMINICAN REPUBLIC
By George M. Butler, LL. B.*
BUTLER & ASSOCIATES/LEGALMARINE (B&A)
georgembutler@hotmail.com
557 Arzobispo Portes Street, Torre Montty,
Third Floor, Ciudad Nueva, Santo Domingo
Tel: 809-303-0225 & 809-818-6990

The Dominican Republic (DR), 2/3rds of “Hispaniola” Island, surrounded by sea but at West, does
not have Maritime Law (ML) tradition. Most ML issues are ruled by DR Commerce Code, the same
1804 Napoleon Code, which DR adopted since 1845, revised (1882), and few other especial laws.
The Arrest of Ships (AOS) = “Embargo de Naves” in Spanish, is regulated on Title II, Second Book,
Articles 197-215, DR Commerce Code, but since vessels are assets (“bona mobilia”), they are also
subject to other type of arrests: “Executory Arrest” (“saisie-exécution”) and “Conservatory Arrest”
(“saisie conservatoire”) regulated by DR Civil Procedure Code (CPC), which is same 1806 Napoleon
CPC, with few adaptations (1884 translation) and some modifications by laws non-related to AOS.
To perform the latter, authorization from judge must be obtained. Hence, the AOS in the DR is ruled
by over 200 year old laws, unmodified, except by Law No. 845 of 15th July 1978, on “Conservatory
Arrest”. Moreover, Decree-Law No. 222-92 (7.Jul.1992) establishes, to perform a temporary arrest
(“Conservatory Arrest”), that “if the vessel is loading cargoes or is already loaded with transit ship-
ments or other cargoes destined to other ports, the Dominican Port Authority (DPA) will require
the arresting party to provide, at its cost and expense, the necessary funds for the transshipment
and transportation of said cargoes on board another vessel, ensuring that said shipments continue,
without any delays, towards their intended destination, and the international maritime commerce
is not interrupted”. Therefore, this makes the arrest of a loading or loaded vessel economically un-
feasible. Hence, one must ensure the vessel is not loading, is completely unloaded or laden without
cargo on board or must provide sufficient funds as stated above. While two new DR Commerce
Code Projects have been proposed, none has been yet approved. Nevertheless, a strong initiative
for DR Maritime Code is being considered and seems might be approved in the near future. If posi-
tive, it will change AOS in DR.

None.

Not under DR Commercial and Civil Law, but there some other non-orthodox manners to detain a
ship, influenced by circumstances surrounding the case, the arresting party/its lawyer(s) and their
relationship with DR port and naval authorities. Some “Opposition or Embargo Retentivo” (an em-
bargo of assets, documentation or cash owned by the debtors in hands of third parties, normally
used to freeze bank accounts) per DR CPC, Articles 557-582, have succeeded in withholding sailing
permits at DPA or Harbourmaster, not passed unto vessel’s Master, impeding sailing of vessel. An
Executory Title, from a Notary Public or private, or Judge Order must be obtained.

Yes, as explained above (1 and 3).

Any maritime debts (privileged or not), ship’s mortgage, true commercial or civil credits due by
debtors may entitle creditors to arrest a ship. However, non-judged claims, as cargo claims where
shipowners’/vessels’ liability is to be determined very seldom give grounds to judges to grant order
to AOS, vis-à-vis a Conservatory or Retentive Embargo. Nevertheless, should a ship be illegally
held or withheld by a non-owner, a “Recovery Embargo”, “Embargo en Reivindicación” in Spanish
(“saisie-revendication”) under Judge Order, may be performed.
82
Certainly, any ship of any flag can be indeed subject to DR AOS.

Yes.
The DR laws are mute in respect to sister ships. However, if creditors can establish that another ship
is indeed a sister ship or in associated ownership of debtor; judge may authorize AOS. Even with
different official registered owners, from our experience, the judges have maintained/confirmed/
ordered AOS when the connection has been properly proven.

AOS can be performed for debts incurred by owners or charterers. Should AOS is for debts of shi-
powners, charterers would have a hard time releasing same, unless settling shipowners’ debts or
reaching amicable agreement with arresting party.

Article 48 of DR CPC, provides that judge may or may not require arresting party to present proof of
sufficient solvency, guarantor or bond. Counter-security may also be requested by the defendant.
Same seldom exceeds the amount being claimed, and can be a bond purchased from a local bon-
ding company for a premium. However, local bonding companies always require counter guaran-
tee or security from local representatives/agents of claimants (i. e., local lawfirm, ships’ local agents
or alike). Sometimes, when knowledgeable, judges may accept L. O. G./L. O. U. from IG P & I Clubs.
Moreover, DR Civil Code, Article 16, establishes the “Iudicatim Solvi” bond/counter-security for non-
local residents, guaranteeing legal/procedural costs and eventual counter lawsuits for damages
which could rise from original lawsuit/ship arrest, when the plaintiffs/arresting parties do not own
any properties (“bonna inmobilia”) within DR territory, which value guarantees payment of even-
tual judgments against the foreign arresting party. Nevertheless, this is a general provision, not
applicable to commercial matters and never granted when a foreigner is filing suit/arresting a ship
of another foreigner. Also, same cannot be granted by judges unless requested by defendants/
debtors, and recent DR Supreme Court of Justice rulings have decided that same is not justifiable
when becoming an obstacle for a plaintiff to exercise its/his/her rights on same basis as a local one.
Yes, there is. While maritime claims for debts are recognized causes of arrest, most maritime liens
contemplated in Anglo-Saxon laws are not admitted by DR laws. The exact legal figure of “lien”
does not exist in DR Law. Nevertheless, from a procedural point of view, there are no differences.
12. Does you country recognize maritime liens? Under which International Convention, if any?
As stated above, most maritime liens on vessels are not recognized by DR laws. Hence, said liens
must be analyzed on a “case to case basis” to determine whether or not they may give grounds to
AOS in DR jurisdiction. Should such lien correspond to a local legally recognized maritime or com-
mercial privileged credit, the AOS would be achievable. The DR is not signatory to any International
Convention on maritime liens.
law firm?
The time frame is undefined, cannot be accurately foreseen or determined. It would depend on the
following factors:
a) Nature and circumstances of each case.
b) Quantity of documentary proof, evidence documents provided by the arresting party and the
skills of the local Judicial Interpreter, since all documents must be in Spanish, official language of DR,
translated by such local Interpreter, if not originally in Spanish, in order to be accepted by DR courts.
c) Nature or type of arrest, whether Executory, Retentive, Conservatory or Revindicatory (Revindi-
cation).
d) Ability of the arresting party’s lawyer to convince the judge of the urgency in collecting the sub-
ject credit, in the cases where the type of arrest requires a prior Order from judge.
Nevertheless, from our praxis and experience, one may advise that it could take any time between
5 days to 2 months, and earlier results would be very difficult indeed and extremely fortunate for
any arresting party. Therefore, is sound advice to request creditors to contact their DR law firm or
83
lawyer(s) as early as possible and provide them with all necessary documentary evidence so they
may submit the arrest application soonest, prior to the arrival of the subject vessel, especially when
her schedule/DR port of call is known.
Yes. A proper Power of Attorney (POA), either in Spanish language or duly translated into Spanish
by a DR Judicial Interpreter must be furnished. While the judge may or may not require the same,
if the AOS is contested by the defendants, upon their request, judge will require same. Then, if not
presented, judge may decide that the acting lawyer has not established his/her legal capacity as
to act on behalf of the AOS party. The said POA must be “apostilled” as per the XII International
Convention of The Hague (5.Oct.1961) or if issued at a non-signatory country, notarized by the
nearest DR Consul.
ments require notarization and/or apostille, and when are they needed?
All the documentary evidence proving the debt should be furnished as originals or certified/nota-
rized copies of same, duly apostilled as above mentioned (same as the POA). All e-mail exchanges
between creditors and debtors are very useful and filed as “Original print-outs or printed versions
of e-mails exchanges”, a great support to the original or notarized copies of the other documents
proving the debt.
Yes. In fact, except the Executory Arrest, all the other types of embargoes/arrests must be followed
by a “Lawsuit in Validation” of the said arrests, with judge knowing the merits of the substantive
claim/debts. Same DR court/judge ordering the AOS must know the merits of the claim, meaning
that these temporary or preventive ship arrests must be followed by lawsuits for collection of mo-
nies (debts) towards foreclosure.

As per DR CPC, pending on the type of arrest performed, the defendant can request the over-
turning or cancellation of the AOS before same judge that ordered same or before the Judge of
the “referimientos” (“referee”, in French), which is the judge of an especial expedited procedure.
However, the judge of the referimientos only knows these urgent cases once or twice a week (i. e.:
Tuesdays and Thursdays, or just Fridays); thus requiring a few days, even up to a week to obtain
the first hearing under referimientos. Said first hearing is of a complete preliminary nature, the
judge ordering both parties (plaintiffs and defendants) to communicate (exchange) their respec-
tive documents (like a discovery phase), via depositing at the Court Secretary’s Office, which both
parties must visit within the time frame ordered by the judge, who also grants time to both parties
to review same, normally running jointly (i. e.: two (2) days to both to deposit and review said docu-
mentation). Therefore, withholding the vessel at port is inevitable, causing losses to the debtors. DR
Laws also provide for the presentation of a bond, guarantor or counter-security to the judge that
ordered the AOS, which –if accepted by the judge- would order the release of same, but its issuan-
ce does not automatically release the vessel. Once said overturning or reversing the AOS order is
obtained, same has to be served through Bailiff’s Act to the counter-party and others involved, such
as Vessel’s Master, DPA, Harbourmaster and alike.

A cash deposit, bond from a local bonding company, bank/bankers’ guarantee, sworn statement
(Affidavit) from local guarantor or similar security, such as a P & I LOU or LOG must be presented.
It is always advisable to obtain the previous agreement from the debtor concerning said counter-
security, so it is not refused or contested by the creditor at the hearing to reverse the AOS. If an
amicable agreement has been reached between the parties, it can be presented before the judge
and same will authorize the release of the vessel. The arresting party can also voluntarily withdraw
the AOS by simply notifying same through Bailiff’s Act to a. m. parties, without the intervention of
any judge.

Since usually the orders for AOS are granted for up to double the amount of the debt/claim (to
guarantee all procedural costs, legal fees and expenses), if requested by the applicant, the security
would need to cover the same amount, unless a lower amount has been already agreed with the
creditor.
84
As stated in above 1., DR does not have a ML tradition neither has Maritime Courts. Thus, all ML
matters are known by Commercial & Civil Law Judges. Therefore, most judges ignore what a P & I
Club is. Hence, P&I LOUs or LOGs are usually not accepted, especially if rejected by debtors. Hence,
same might not be sufficient to lift the AOS in the DR.

It is much easier and faster to arrest a vessel than to release same. Subject to acceptance by the
creditor of the provided security, it may take between two (2) to five (5) days if no objection is pre-
sented; and over a month if the security is not accepted by the judge or the release is harshly legally
contested and opposed by the creditor.

Absolutely, as previously indicated, through the procedure of referimientos (“referee”), the defen-
dant/debtor, may obtain the overturning of the arrest or its Order.
on the merits?
It depends on the time frame requested by the applicant of the AOS Order, but usually the judges
grant thirty (30) days. In any event, such time period is clearly stated in the Order of Arrest itself.

We do not really understand this question as posted, but would reply as follows:
a) If referring to whether a judge may or not grant an order to wrongfully arrest a ship, it is possible.
Judges could be tricked, especially because they are not too knowledgeable of Maritime matters.
However, they are very cautious to order AOS.
b) If regarding whether or not DR courts will acknowledge counter-claims or lawsuits from deb-
tors for wrongful arrests, they would indeed, based upon the “actur sequitur forum rei” Roman
Law principle, since the place of the arrest was the DR and the damages caused to the debtors by
the wrongful arrest were generated and caused to the same in DR. Thus, there would be strong
grounds for DR jurisdiction.
Very rarely. Nevertheless, should one be able to proof the financial or corporate nexus, which
nowadays can be sometimes be as easy as to entering into a website and printing the information
contained therein, such as a common management of sister ships’ owning corporations and alike,
it can happen.
No, it is not possible.
*Law Degree (LL. B.) (1981), Magna Cum Laude, Universidad Católica Madre y Maestra (UCMM), Associate & Partner-Dr. Arnulfo E.
Matos & Asociados Lawfirm, (Nov.1981 to Feb.1983), Counselling, Contracts and Debts Collections for Citibank, BanComercio, Ban-
Reservas & 3M; handling maritime cases for INMARSA and CODUTI. Manager-Insurance Dept. Frederic Schad (FSCA) (Feb.1983),
Lloyd’s Agent (Mar.1983), correspondent for all IG P & I Clubs, acting as lawyer, surveyor, claims & settling agent & for 250+ Insurance
Institutions, Underwriters & Salvage Companies; Legal Counsel FSCA & VP Schad Insurance (Feb.1983-Nov.2003). DR Coordinator &
Intl’ Instructor, Trainmar Program (UNCTAD) since Dec.1991, taught Chain of Intl’ Transport, B/Ls, Marine & Cargo Insurance, Maritime
Liens & Claims, P&I, Intl’ Transport, Port Docs. & Role of Lloyd’s Agents, founding BUTLER & ASSOCIATES/ LEGALMARINE
(B&A) (1993). Studied Maritime Law & Marine Insurance in U. K., Spain, Colombia & DR, participating in conferences & seminars
on Intl’ Maritime Law & Insurance Law, in Spain, Colombia, Venezuela, Ecuador, Chile, Cuba and DR, writing magazine articles,
co-authoring publications as “International Ship Arrest: A Practical Guide”, on DR arrest of ships (1988-LLP); post-graduate courses
Social Law, Civil Liability, U.S. Commercial Societies, Business Management & Leadership. Founder & President-DR MLA (A.D.D.M.),
Professor-International Maritime Private Law, Naval Academy-DR Navy, Maritime Advisor COS-DR Navy & VP Iberoamerican Institute
of Maritime Law (IIDM)(1988-1996), Lecturer-Civil Liability, Commercial Law & Tax Law for University UNAPEC now Lecturing Marine,
Transport & Cargo Insurance-Universidad Iberoamericana (UNIBE) Insurance Master’s Degree, teaching same at Atlas Consulting
& Education-Dipl. Marine Management + courses (Incoterms, B/Ls and alike). Spanish, English and French + some Portuguese,
Member DR Lawyers’ Bar Association, Iberoamerican Institute of Maritime Law (I.I.D.M.), Inter-American Bar Association (IABA), DR
MLA (A.D.D.M.) & Notary Publics’ Association.
85
SHIP ARREST IN ECUADOR
By Dr. José Modesto Apolo Terán*
APOLO
apolo@apolo.ec
www.apolo.ec
Junin 105 and Malecon, Vista al Rio Bldg. 6th
Floor Guayaquil, Guayas, Ecuador
Tel: 593 42 560 100
Fax: 593 42 560 700

For the last 15 years, Ecuador has seen its rules for ship arrest being fully revisited and updated
by reference to the most recent international conventions on maritime liens and arrest of ships.

The arrest of ships in Ecuador is enforced under the Decision No. 487 issued by the Commision
of the Nations Andean Community (in its acronym “CAN”) labelled under the name of “Maritime
Claims (Ship Mortgages and Maritime Liens) and Arrest of Ships” (“Decision 487”). The Decision
in its background states to have been drafted inspired on the International Convention on Ma-
ritime Liens and Mortgages, 1993 (“MLM Convention, 1993”), and the International Convention
on Arrest of Ships, 1999 (“Arrest Convention, 1999”). For all material purposes, (i) the provisions
of the Decision 487 are substantially the same as those of the International Convention on
Arrest of Ships, 1999 and (ii) the list of maritime liens and their ranks as regulated by the Deci-
sion 487 are substantially the same as those of the International Convention on Maritime Liens
and Mortgages, 1993.
On February 2004, Ecuador adhered to the International Convention on Maritime Liens and
Mortgages, 1993. This Convention was published in the Official Gazette in April 2004, and ulti-
matelty entered into force in September 2004.
On March 2014, Ecuador ratified the International Convention on Arrest of Ships, 1999, which
entered into force in March 2014.

No, there is no other way to arrest a ship in Ecuadorian ports other than following the fra-
mework contained in the above mentioned International Conventions.
4. Are these alternatives e.g. saise conservatoire or freezing order?

Our Code of Civil Procedure regulates “preventive measures” as a procedural means to per-
mitting the attachment of goods to secure payment of a pending debt through its seizure and
subsequent auction. This procedure is very similar to the saise conservatoire. However, this title
is virtually deemed as the domestic procedural framework under which the Arrest Convention,
1999 and the Decision 487 are enforced.
Freezing orders are not available under Ecuadorian Law.

In Ecuador, it is possible to arrest a ship in so far as the creditor avails any of the maritime claims
listed under article 1 of the Arrest Convention, 1999 (which is materially the same to the list of
maritime claims under article 1 of the Decision 487):
a) loss or damage caused by the operation of the ship;

b) loss of life or personal injury occurring, whether on land or on water, in direct connection
with the operation of the ship;
c) salvage operations or any salvage agreement, including, if applicable, special compensation
relating to salvage operations in respect of a ship which by itself or its cargo threatened damage
to the environment;
d) damage or threat of damage caused by the ship to the environment, coastline or related
interests; measures taken to prevent, minimize, or remove such damage; compensation for such
86
damage; costs of reasonable measures of reinstatement of the environment actually under-
taken or to be undertaken; loss incurred or likely to be incurred by third parties in connection
with such damage; and damage, costs, or loss of a similar nature to those identified in this
subparagraph (d);
e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering
harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is
or has been on board such ship, and costs or expenses relating to the preservation of an aban-
doned ship and maintenance of its crew;
f) any agreement relating to the use or hire of the ship, whether contained in a charter party
or otherwise;
g) any agreement relating to the carriage of goods or passengers on board the ship, whether
contained in a charter party or otherwise;
h) loss of or damage to or in connection with goods (including luggage) carried on board the
ship;
i) general average;
j) towage;
k) pilotage;
l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services
rendered to the ship for its operation, management, preservation or maintenance;
m) construction, reconstruction, repair, converting or equipping of the ship;
n) port, canal, dock, harbour and other waterway dues and charges;
o) wages and other sums due to the master, officers and other members of the ship’s com-
plement in respect of their employment on the ship, including costs of repatriation and social
insurance contributions payable on their behalf;
p) disbursements incurred on behalf of the ship or its owners;
q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or
on behalf of the shipowner or demise charterer;
r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of
the shipowner or demise charterer;
s) any dispute as to ownership or possession of the ship;
t) any dispute between co-owners of the ship as to the employment or earnings of the ship;
u) a mortgage or a “hypothèque” or a charge of the same nature on the ship;
v) any dispute arising out of a contract for the sale of the ship.

Yes, it is possible to arrest a ship irrespective of her flag as provided by article 8 of the Arrest
Convention, 1999, and article 54 of the Decision 487.

Generally, the arrest is permissible in so far as the conditions set forth in article 3(1) of the Arrest
Convention, 1999 and article 41 of the Decision 487 (for which purposes are substantially the
same) are fully met.
Particularly, if the maritime is not secured by a maritime lien, the Court must be satisfied that
either:
a) 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; or
b) the demise 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; or
c) the claim is based upon a mortgage or a “hypothèque” or a charge of the same nature on
the ship; or
d) the claim relates to the ownership or possession of the ship.
If the maritime claim is secured by a lien, the arrest can be effected against the debtor (i.e. the
shipowner, the demise charterer, the manager or the operator of the ship) irrespective of the
fact that it may or may not have propietary title on the offending ship.
8. What is the position as regards sister and ships in associated ownership?

Sister ships cannot be arrested without having regard to the identiy of the debtor. Sister ships
may be arrested under article 3(2) of the Arrest Convention, 1999 (for all material purposes, the
said conditions are substantially the same as those stated in article 42 of the Decision 487) as
long as (i) they are under the ownership of the debtor at the time when the arrest is effected
87
and (ii) at the time when the claim arose the offending ship was owned, bareboat or time char-
tered by such debtor. Subject to the same articles, these conditions do not apply to claims in
respect of ownership or possession of a ship.

The offending ship if chartered on a bareboat basis may be arrested under article 3(1)(b) of the
Arrest Convention (which is substantially the same as article 41(b) of the Decision 487).
If the offending ship is chartered on a time basis and the claim in question is not secured by a
maritime lien she cannot be arrested neither under the Arrest Convention, 1999 nor under the
Decision 487. If secured by a maritime lien listed in article 4 of the MLM Convention 1993 (which
for theses purposes is materially the same as article 22 of the Decision 487), the time chartered
ship can be arrested under article 3(1)(e) of the Arrest Convention, 1999 (which is materially the
same as article 41(e) of the Decision 487).
Under the Arrest Convention 1999 and the Decision 487, it is not possible to arrest sister ships
if bareboat or time charterered by the debtor.

As a matter of law, although rather unlikely, the courts are allowed to require counter-security
prior to granting a writ of arrest under article 6(1) of the Arrest Convention, 1999 (which is
materially the same as article 50 of the Decision 487).
11. Is there any difference in respect to arrestting a ship for a maritime claim and a maritime lien?
The main difference resides in that a maritime claim, if secured by a lien, travels with the ship
and may be enforced regardless of whom has propietary title on the ship at the time when the
arrest is effected, for it lies in the nature of a maritime lien to attach (for a limited time) to the
offending ship and survive any change of her ownership, flag or registration (article 21 of the
Decision 487).
Yes. Ecuador recognises the list of maritime liens described in article 4 of the International Con-
vention on Maritime Liens and Mortgages, 1993 (which for material purposes is the same list
provided by article 22 of the Decision 487).
your law firm?
Should the procedural conditions set forth in the Arrest Convention, 1999 or the Decision 487
are fully met, an application of arrest is to be filed in the Civil and Commercial Court of the
Ecuadorian port where the ship has or is about to call. Upon submission of the application, it
can take between 3-5 days for the Court to process the application and grant the writ for arrest.
14. Do you need to provide a POA or any other documents of the claim to the Court?
Under our law, the submission of a POA is not a prerequisite for the granting of a writ for arrest;
however, the court will provide a term within which the claimant is expected to file the POA
(usually 10-15 days counting from the date when the arrest is effected).
documents require notarisation and/or apostille, and when they are needed?
Under article 1 of the Decision 487, the condition of a shipowner must be evidenced on the
basis of the public records filed in the primary ship registrar, e.g. a certificate of ownership and
encumbrances.. Since normally a ship registrar is run by a public office, such a certificate should
be legalised by an Apostille. It is not strictly necessary that the application of arrest be accompa-
nied with this certificate; however, the Court will expect its presentation during the probatory
stage (which is open for 3 days upon execution of the order of arrest).
Generally, any document issued by foreign public entities must necessarily be legalised by an
Apostille.
The POA will need to be notarised and legalised by an Apostille.
Under our law, it is not possible to file in Court documents electronically.
Under our law, any document written in a language other than Spanish must be translated into
Spanish to be considered as valid evidence in Court.
88
16. Will your Courts accept jurisdiction over the substative claim once a vessel has been arrested?
It depends on whether the parties have agreed to submit their disputes/differences to arbitra-
tion or to the decision of a foreign court.
Should they have agreed so, the local Courts would be prevented from acknowleding jurisdic-
tion to hear the principal claim on the merits under article 2(3), 7(1) of the Arrest Convention,
1999 (which is materially the same as article 38 and 52 of the Decision 487). However, under
article 7(3) of the Arrest Convention, 1999 (which is materially the same as article 53 of the
Decision 487), the Courts would be allowed to determine a period within which the claimant
should file its principal claim before the competent Court or the relevant arbitral tribunal, failing
which the local Court is allowed to order the release of the ship.
However, in the absence of such an agreement for the resolution of disputes, local Courts are
allowed to acknowledge jurisdiction to hear the principal claim under article 7 of the Arrest
Convention, 1999 (which is materially the same as article 52 of the Decision 487). Under sec-
tion 923 of the Code of Civil Procedure, the claimant is required to file the principal claim on
the merits within 15 working days counting from the moment the writ of arrest was enforced,
failing which the Court is allowed to order the release of the ship and condemn the claimant
to pay damages.

The defendant must provide sufficient security covering the amounts matter of the claim (pur-
suant to sections 905, 919 of the Code of Civil Procedure, section 44 of the CAN Decision No.
487 and section 4 of the International Convention on the Arrest of Ships 1999).

The security can be filed in the form of a mortgage, or in the form of a bond issued by an insu-
rance company or a bank domiciled in Ecuador. Bonds issued by insurance companies or banks
not domiciled in Ecuador are not accepted.

Since under sections 905 and 919 of the Code of Civil Procedure courts must ensure that the
security sufficiently covers the credit, courts are allowed to fix the value of the security by inclu-
ding potential interests accruing to the debt and the costs.

Since P&I LOUs are not provided by companies domiciled in Ecuador, they usually do not qualify
as sufficient security to release the ship.

The law does not provide terms for the release of the ship; however, as a matter of practice,
once security is posted in court, it takes 2-3 days to the court to issue the writ of release.

Yes, there is a procedure to contest the arrest and is regulated under sections 897 to 923 of the
Code of Civil Procedure.
If the parties have not submitted their disputes to arbitration or to the resolution of a foreign
court, under section 923 of the Code of Civil Procedure the courts are allowed to grant a term
of 15 working days for the claimant to file the principal claim on the merits.
If the parties have agreed to submitt their disputes to arbitration or to the decision of a foreign
court, the the Courts have the discretion to determine a period within which the claimant must
submit its principal claim before the competent Court or the relevant arbitral tribunal.

Yes. Ecuadorian Courts are allowed to determine the extent of damages which a claimant may
be condemned to pay if found to have applied for an arrest without legal justification. This is
regulated by article 6 of the Arrest Convention, 1999 (which for this purposes is materially the
same as articles 50, 51 of the Decision 487). As regards the measure of indemnity, under our law
damages may include loss of profits and loss of chance.
89
Although our Companies Law allow the courts in certain circumstances to pierce and lift the
corporate veil of companies, this possibility is restricted to Ecuadorian companies and subject to
the results of a substative trial pursued for this specific purpose. Therefore, Ecuadorian Courts
will not be ready to pierce or lift the corporate veil in arrest procedures.
Under our law, Courts are not allowed to order the sale of a ship pendente lite.
*Dr. José Modesto Apolo is the principal senior partner of Apolo Law Firm. He specializes in maritime and port law with a vast and
widely-regarded legal practice of more than 40 years, having throughout assisted and worked closely with the main players of Ecua-
dorian maritime industry and continually provided legal services to international clients and law firms. He presently sits as President
of the Ecuadorian Maritime Law Association, as President of the Iberoamerican Maritime Law Institute and as Titulary Member of the
Committee Maritime International. He teaches maritime law regularly at the Universidad de Especialidades Espíritu Santo and is a
permanent speaker in local and international panels. He promoted the creation of the Ecuadorian Shipowners Association, the Ecua-
dorian Shipping Agencies Association, the Ecuadorian Maritime Chamber and the Ecuadorian Association of Private Terminals, where
he permanently provides advice to its members.
90
SHIP ARREST IN EGYPT
By Nabil Farag*
NABIL FARAG LAW FIRM
nbllaw@interlink.com.eg
www.nbllaw.com
23, July & Abou El-Feda St., El – Shark
Second Floor, El-Shammaa Tower, 42111
P.O. Box: 1036. Port Said. Egypt
Tel: +20 66 320 8888 / +20 66 3208963
Fax: +20 66 3208806 / +20 66 3208255

To proceed with an arrest order against an owing vessel in Egypt, in accordance with the Egyp-
tian Maritime Trade Law No 8/1990, Article No 60, it’s required to prepare some steps such as
filling an arrest application (an arrest petition) to the competent court by their jurisdiction, this
petition must explain the matter. A brief of the relation between the claimant and defendant,
and the nature of debit which must be one of the debits indicated in the Article No 60, of the
Egyptian Maritime Trade Law No 8/1990.
The required documents relating to these debits in order to arrest a vessel as indicated in clause
no (1) must be presented and attached to a certified translation into Arabic for all documents,
for example (In case the arrest application was relating to outstanding invoices for insurance
installments issued by a marine insurance policy, We have to present all outstanding invoices,
Insurance Policy and other documents such as mutual correspondents, faxes, e-mails and other
agreements which prove this debits).
A legalized power of attorney must be granted by the client (The claimant) who is filling an
arrest application. This power of attorney must be signed by the client, certified by the Apostil
then legalized by the Ministry of Foreign Affairs and by the Egyptian consulate in the client’s
country. This power of attorney must be translated into Arabic by the Ministry of Justice in
Egypt.

The 1952 Brussels’ Convention of the ship arrest is applied on the ship arrest in Egypt.

The first applicable law for the arrest procedures is the Egyptian Maritime and Trade Law No
8/1990, In addition to the Egyptian Commercial law and the Egyptian substantiation law,
Otherwise, There are some other applicable laws can be applied on the ship arrest in Egypt
such as the Egyptian administrative law which allows the governmental authorities and public
establishments to arrest a ship if it has been owed to them as example for a port dues or any
other governmental debits, Then the governmental authority or the public establishment has
the legal right to arrest the vessel directly by their order and without getting an arrest order
form the judge.
4. Are these alternatives e.g. saisse conservator or freezing order?

No, these alternatives do not saisse conservator or freezing the ship arrest order but both pro-
cedures are compatible with them.

The legal recognizing liens in Egypt as indicated in the Egyptian Maritime and Trade Law No
8/1990, the Article No 60, as follows:
(a) Port and water courses duties.

(b) Expenses outlaid for removal, pick up, or lifting the wrecks and merchandise.
(c) Damages caused by the ship by cause of collision, pollution or other similar marine incidents.
(d) Casualties of lives or bodily injuries caused by the ship, as a result of using and exploiting it.
91
(e) Contracts and deeds for using or renting the ship.
(f) Insurance on the ship.
(g) Contracts for transport of goods by virtue of a rental contract or bill of lading.
(h) Destruction of goods and luggage which transported by the ship, or their damages.
(i) Salvage and rescue works.
(j) Joint losses.
(k) Tugging the ship.
(l) Piloting works.
(m) Supplies of materials or tools necessary for operating the ship or its maintenance, whatever
the source of supplies being obtained.
(n) Ship-building, repairing or furnishing the ship, and expenses incurred for the ship in dry-
docks and dockyards.
(o) Incurred salaries and wages for captain, ship-officers and the crew members by the shipping
agencies.
(p) Incurred money by the captains, Ship-forwarders, Ship-Charterers, or shipping agencies for
the account of ship or ship-owners.
(q) Disputes about the ownership of ship.
(r) Disputes about the common ownership of ship, or about holding or exploiting and opera-
ting it, or the rights of ship-owners in common to the amounts resulting from using and exploi-
ting the ship.
(s) Marine mortgage.

The arrest procedures are applicable irrespective of the flag of the ship whatsoever, also irres-
pective of the claimant or debtor’s residency.

The arrest procedures are applicable irrespective of the Debtor’s residency or nationality.
The procedures are also applicable on the sister-ship and a ship associated with the same
ship¬owners. The sister ship of the owing vessel is allowed to be arrested in Egypt in accordance
with the Egyptian Maritime and Trade Law No 8/1990, Article No 61, which allows the claimant
to arrest the sister ship through the same procedural requirements as mentioned above. The
referred Article No 61 stated that:
“Whoever holds any of the debits specified in the previous article, can levy an arrest on the
shipwith which the debit is connected or any other ship owned by the debtor if such ship was
in hispossession at the time of instituting the debit”. However, no attachment may be levied on
another ship than the one to which the debit is related if the debit is one of those prescribed in
items Q, R and S of the previous article”.
These referred items as indicated in the article No 60 are as follows:
(q) Disputes about the ownership of vessel.
(r) Disputes about the common ownership of vessel or about holding or exploiting and ope-
rating it, or the rights of ship-owners in common to the amounts resulting from operating and
exploiting the ship.
(s) Marine mortgage.

These arrest procedures are also applicable for the bareboat charters, Yachts, Fishing boats,
Submarines and time-chartered or Voyage chartered vessels as explained.

A counter security is not required under the new Egyptian Maritime and Trade Law No 8/1990.
There is no difference between the maritime claim and the maritime lien in respect to arresting
92
a ship which is subjected to the same procedures.
The maritime liens are recognized by the Egyptian Maritime and Trade Law No 8/1990, also, the
1952 Brussels’ Convention of the ship arrest is applied on the ship arrest in Egypt.
your law firm?
The required time to arrest a ship starting from the moment of the referred documents arrival
to our law firm is 24 hours.
A legalized power of attorney must be granted by the client (the claimant) who fills the arrest
application. This power of attorney must be signed by the client and certified by the Apostil or
the local authentication office then legalized by the Ministry of Foreign Affairs and by the Egyp-
tian consulate in the client’s country. This power of attorney must be translated into Arabic by
the Ministry of Justice in Egypt which takes from three to five days to be finished.
The required documents relating these debits as indicated above in clause no (1) must be atta-
ched with the arrest application in addition to a certified translation into Arabic for all docu-
ments (Our law firm usually advises clients to send the documents by e-mail first to start the
translation process urgently in order to save time for preparing the arrest application in proper
time), for example (In case the arrest application relating to outstanding invoices for insurance
installments issued by a marine insurance policy. We have to present all outstanding invoices,
Insurance Policy. And other documents such as mutual correspondents, Faxes, E-mails and
other agreements which prove this debit).
The Egyptian courts accepts jurisdiction over the substantive claim once the vessel has been
arrested. Also all claims against the arrested vessel will be accepted in respect to the jurisdiction.

In according to the Egyptian Maritime Trade Law No 8/1990, Article No 63, in order to release a
ship from arrest, an application of release a ship from arrest must be submitted by the defendant
to the chief of judge or his representative on his jurisdiction attached with a bail or guarantee
letter to be sufficient for settlement of debit.

In spite of the article No 63, of The Egyptian Maritime Trade Law No 8/1990, didn’t explain
definitely the required type of security of bail or guarantee letter however the practical practice
is indicated that a bank guarantee letter must be submitted by a known bank to be acceptable,
Also, a deposit of cash money equivalent to the total debit will be acceptable too.

The security must cover the interest and 10% for the costs in case of the judge was included to
the capital debit in the arrest warrant.

As referred the practical actual is indicated that P&I LOUs are not acceptable at all.

It’s usually takes about from one to two days to release a ship from arrest starting from the date
of submitting the application of release the ship from arrest to the chief of judge.

The defendant has a right to contest against the arrest warrant before the summary execution
court whether the arrest was executed or not yet. The defendant also has a right to consent
against the plenary trade court through 10days starting from the date of commencement of
93
execution of the arrest, So, the judge can cancel the arrest warrant or amend it, Article No 197,
of the Egyptian procedural law.
23. Which period of time will be granted by the Courts for the claimants in order to take legal
The Egyptian Maritime and Trade law No 8/90 gives the claimant 8 days exactly to take the legal
action on the merits starting from the day of arrest, or otherwise the arrest will be cancelled by
law. The Egyptian courts usually take time approximately one year to issue her award in the
legal action of merits.

The claims for wrongful arrest are allowed and organized by the Egyptian Civil Law No
131/1948, article No 163, which indicated as follows:
“Every fault was caused damages to the others shall required the indemnity” So, the wrongful
arrest is protected by the Egyptian Civil Law, and if someone arrests a vessel by wrong or by
false documents. The claimant will be claimed by the ship-owners, Charters or operators to pay
them all damages incurred as a result of the wrongful arrest. These damages will be determined
by the court which has all rights and free to assume the value of damages including fines, Incu-
rred port dues and all other incurred expenses caused by this wrongful arrest.
As a basic rule, the shareholders of a company with limited liability are not personally liable for
the obligations of the company, but, the Egyptian maritime and trade law is organizing this
point on the basis that rules of the Egyptian trade law which is depend on the type of company,
so, If the ship-owner’s company was established as a “Joint stock company”. So, the sharehol-
ders will not be personally responsible for any obligations at all, But, if the ship-owner’s com-
pany was established as a “corporate company”. So, the shareholders will be personally respon-
sible for the obligations and then the piercing and lifting of the corporate veil will be applied.
When a vessel has been arrested, so that the ship-owners can’t sale it at all without the court
permission unless the arrest is removed, and if the ship-owners was sold the vessel while it arres-
ted so this sale contract is considered null and void.
*Our legal services and consultancies are presented to Ship-Owners, Charters, P & I Clubs, Marine Insurance & Reinsurance Companies,
Ship Agents, Repairs, Suppliers, Building, Oil & Gas Companies…..etc, Our legal services are included, Marine insurance and reinsurance
claims, Charter parties liabilities, Bills of leading, Ship sale/Purchase contracts, Collision/Salvage and General damage liabilities, Oil pollution/
Casualties, Stowaways and Refuges, Cargo liabilities (Shortage/Loose/ Damage and Delay of cargo, Ship’s arrest/ Release, in all Egyptian
ports, Crew detention, Costs and Fines, Disputes settlements, Legal defense, disputes before the all Egyptian courts, Disputes under voyage/
time charters, Financial collapse, Bankruptcy, Collisions of ships, Salvage claims and marine casualties, Marine mortgages, Crew wages
claims, Personal injury and death claims, Ship registration, Ship deletion, Ship delays, Custom’s fines and demurrages, Customs clearance
facilities, Assisting in import & export procedures, All aspects of shipping, marine and trade disputes, International Arbitration, Execution of
international judicial and arbitration awards in Egypt.
94
SHIP ARREST IN ENGLAND & WALES (Questions 1 to 9)
By Lewis Moore*
SWINNERTON MOORE LLP
lewis@swinmoore.com
www.swinmoore.com
Cannongate House, 64 Cannon Street
London EC4N 6AE
Tel: +44(0) 207 236 7111

An application on paper is made to the Admiralty Marshal. Evidence must be filed showing that
the claim comes within the Court’s Admiralty Jurisdiction. There is a sliding scale of fees; the fee
on issuing proceedings for amounts up to £200,000 is 5% (i.e. a maximum of £10,000 court fee)
plus a further £225 for issuing the arrest warrant. In addition the applicant must give an under-
taking to pay the Admiralty Marshal’s costs which should be recovered as they are a first charge
on the proceeds of the vessel ranking before maritime liens.

The UK is a party to the Brussels Convention Relating to the Arrest of Seagoing Ships, 1952. The
relevant provisions are contained in the Senior Courts Act 1981. Section 20 sets out the types of
claims for which the ship may be arrested.

No.

It might be possible to obtain an injunction but this is more difficult and more expensive than
an arrest.

Section 20(2) of the Senior Court Act 1981 lists 19 types of maritime claim within the admiralty
jurisdiction of the High court in respect of which a vessel may be arrested.
These include claims relating to the possession or ownership of, or mortgage on, a ship, claims
for damage done by or to a ship, claims for loss of life or personal injury due to a defect in a ship,
claims for loss of or damage to goods carried on a ship, other claims relating to the carriage of
goods on a ship, claims relating to the use or hire of a ship, claims for salvage, towage and pilo-
tage, claims for goods and materials supplied to a ship, claims in respect of the construction or
repair of s ship, claims by the master or crew for wages, claims arising out of a general average
act, and claism arising out of bottomry and collisions. Notable exceptions to this list, i.e. where
arrest is not possible include claims for insurance premiums and claims for legal costs.
English law treats both English and foreign flag vessels equally and it does not distinguish bet-
ween “Convention” and “non-convention” vessels either.
6. Can you arrest a ship irrespective of her flag?

Yes.
7. Can you arrest a ship irrespective of the debtor?

Yes.
It is possible to arrest sister ships but not ships in associated ownership. Sister ships are vessels
that are owned at the time when action is brought by the person who was the owner of the
ship in connection with which the claim arose.
9. What is the position as regards bareboat and time-chartered vessels?

95
A bareboat chartered ship may be arrested for a claim for which the bareboat charterer is con-
tractually liable. Time chartered vessels cannot be arrested for claims of this nature, but where
a time charterer owns a vessel, any vessel owned by the time charterer may be arrested for a
claim under the charterparty.
*Lewis Moore qualified as a solicitor in 1976. Lewis Moore joined Tony Swinnerton in partnership in 2001. They practice as Swinnerton
Moore LLP.
Lewis Moore acts for clients in relation to contentious and non-contentious work, joint venture disputes, commodity sale and purchase, ship
sale and purchase and charterparties and is a CEDR Accredited Mediator.
He acted for the successful charterers in The Achilleas [2007] 1 Lloyd’s Rep 19 a House of Lords decision regarding damages for late redeli-
very and for the successful appellants in Star Reefers Pool Inc. v. JFC Group [2011] EWCA, a Court of Appeal decision on anti-suit injunctions.
96
SHIP ARREST IN ENGLAND & WALES (Questions 10 to 26)
By Russell Kelly*
LA MARINE, LESTER ALDRIDGE LLP
Russell.Kelly@LA-law.com
www.la-marine.co.uk
Alleyn House, Carlton Crescent,
SO15 2EU Southampton, United Kingdom
Tel: +44 (0) 2380 827415
Fax: +44 (0) 2380 827452
10. Is counter-security required in order to arrest a ship?

No. All that is required is an undertaking by the solicitor instructed to make the arrest to pay the
Admiralty Marshal’s reasonable costs in serving the arrest warrant. However, it may be necessary to
pay expenses incurred as result of the ship being detained, including for example berthing charges
throughout the period of arrest. These can be added to the claim and be recovered out of the pro-
ceeds of sale if the matter proceeds to that stage.
11. Is there any difference between an arrest for a maritime claim and an arrest for a maritime lien?
Maritime claims are dependant upon the ownership of the ship. The ship can only be arrested provi-
ded that the party who was the owner at the time that the cause of action arose is still the owner at
the time of arrest. Maritime liens can be enforced irrespective of ownership and entitle the claimant
to issue a claim and to arrest the ship despite a change of ownership. The procedure for arrest is the
same however.
12. Does your county recognise maritime liens?

Yes, but only in respect of claims for salvage; crew wages; damage done by a vessel; Master’s wages
and disbursements; and bottomry and respondentia - which are claims in which the ship is pledged
as security in return for monetary advances and usually during times of distress and are uncommon
today as a result of modern mortgage agreements.
13. What period of time is required in order to arrest a ship following receipt of instructions by your
law firm?
Subject to the receipt of all documentation relevant to the claim, the application to the court can take
place within a matter of hours. The actual arrest will be dependent on the availability of local court
marshals and bailiffs in the area that the ship is located but should be effected within 24 hours of the
warrant being issued.
14. Do you need to provide a POA, or any other documents in support of the claim to the Court?
A Power of Attorney is not required in order to arrest a ship. Documents in support of the claim should
be filed with the claim form, together with details of the ship’s location and port of registration. Prior
to the arrest, the arrestor should determine whether there is a caution against arrest in force against
the ship in question.
All original court documents (the warrant of arrest and a claim form) must be filed with the court be-
fore the arrest. The warrant of arrest must be accompanied by an admiralty claim form detailing the
particulars of the claim, together with a signed declaration to confirm the ownership of the ship, the
level of security sought and confirmation that the claim has not been satisfied. A signed undertaking
from the solicitor must also be submitted to cover the Admiralty Marshal’s expenses in serving the
arrest and claim form. At present, no documents can be filed electronically. Certification or apostille
by a Notary is not required although if supporting documents need translating then the translations
should be certified by a Notary.
16. Will your Courts accept jurisdiction over the substantive claim once the vessel has been arrested?
This will depend on the circumstances. If the claim arises out of a contract which contains an exclusive
97
foreign jurisdiction clause it may be the case that the proceedings are stayed in favour of the relevant
foreign court. However, for most other claims the Court will usually accept jurisdiction.

Once security has been agreed all that is required in order to release a ship from arrest is the filing of a
request for release with the Admiralty Marshal together with a further undertaking to be responsible
for any costs he may incur in effecting the release. The Admiralty Marshal will then arrange for one of
his officers to remove the arrest papers from the ship.

It is up to the parties to agree appropriate security.

No but it would be wise to ensure that it does.

Usually but it may depend upon the circumstances.

Once security has been provided the request for release can be lodged with the Admiralty Marshal
immediately but it will depend upon the availability of local officers of the court where the ship is
located. Outside of normal office hours it may therefore take a little longer.

Not as such. A ship owner could include a counterclaim for damages in respect of losses suffered as
a result of the arrest being brought on an improper basis as part of the defence to the substantive
action but provided security is given in timely fashion such losses should be minimal and be limited to
the costs, if any, of providing the security. If adequate security is offered but an arresting party refuses
to accept that security, thereby extending the period of arrest, a claim for damages for detaining the
vessel without just cause may have more chance of success.
23. What period of time will be granted by the Courts in order for the claimants to take legal action
on the merits?
The claim form must be issued at the same time as the arrest warrant. There is accordingly no period
of delay between the arrest taking place and the action on the merits being commenced. The defen-
dant has 14 days to acknowledge service and a further 14 days to file a defence if settlement is not
concluded immediately.

Yes, but damages will only be recoverable if the defendant can show that the arrest was made in bad
faith or with gross negligence.
25. Do the Courts of your country acknowledge piercing and lifting of the corporate veil?
The courts will be prepared to accept the piercing and lifting of the corporate veil in very limited cir-
cumstances. Usually there must be an element of improper conduct with intent to defraud. The use of
the corporate structure must have been established to evade liabilities imposed by the law.
Yes, but the court will only make an order for sale if there is good reason to do so. The fact that the
costs of maintaining the arrest may exceed the value of the claim and therefore diminish or extinguish
the value of the claimant’s security may be deemed to be sufficient grounds for a sale pendente lite.
*Russell Kelly qualified as a solicitor in 1986 and worked for 12 years with a well known shipping law firm in London before moving to
Southampton and establishing LA Marine, the shipping and marine law team at Lester Aldridge. Russell’s practice encompasses both the
commercial shipping and the leisure marine and yachting markets, advising in particular on vessel sale, purchase and finance and on new
building and repair disputes as well as dealing with crew and passenger personal injury claims, vessel arrests and criminal prosecutions. He
also conducts on board investigations following incidents on vessels, collecting evidence and advising owners and crew members in relation
to investigations by the MAIB and MCA. Russell is a supporting member of the London Maritime Arbitrators Association (LMAA) and a regular
speaker at various industry conferences and seminars.
98
SHIP ARREST IN ESTONIA (Questions 1 to 9)
By Martin Männik*
POHLA & HALLMÄGI
phlaw@phlaw.ee
www.phlaw.ee
Kentmanni 4, 10116 Tallinn, Estonia
Tel: +372 6009 920
Fax: +372 6009 921

Ship arrest in Estonia is normally handled speedily and by a judge who specializes in maritime
matters. Normally a ship will be arrested in Estonia within 1-2 working days as of submitting an
application to arrest the ship, provided that the application is well grounded and the necessary
fees have been paid.
In case of urgency, it may be possible to arrest the ship even on the same day when the appli-
cation was submitted. Pohla & Hallmägi has successfully arrested a ship in the morning and
managed to release the ship from the arrest in the evening after the outstanding payment has
been made.

Estonia is a party to the following conventions, which regulate the arrest of ships and their
possible sale:
a. International Convention on the Arrest of Ships (1999) which specifies maritime claims;
b. International Convention on Maritime Liens and Mortgages (1993) which specifies maritime liens;
c. International Convention on Civil Liability for Oil Pollution Damage (1969) and amendments;
d. Convention on Limitation of Liability for Maritime Claims (1976).

If the ship owner is an Estonian company, the court may arrest the ship under Estonian Code
of Civil Procedure.

No

Maritime claims in Estonia can arise from the following:
1) loss of or damage to property caused by the operation of the ship;
2) loss of life or personal injury occurring, whether on land or on water, in direct connection
3) salvage operations or any salvage agreement, including, special compensation relating to
salvage operations in respect of a ship which by itself or its cargo threatened damage to the
environment;
4) damage or threat of damage caused by the ship to the environment, coastline or related
interests, also:
- costs of measures taken to prevent, minimise, or remove such damage;
- compensation for such damage;
- costs of reasonable measures of reinstatement of the environment actually undertaken or to
be undertaken;
- loss incurred or likely to be incurred by third parties in connection with such damage;
- and other damage, costs, or loss of a similar nature to those identified in this clause;
5) costs or expenses relating to the raising, removal, recovery, destruction or the rendering
6) any agreement relating to the use or hire of the ship, whether contained in the corresponding
99
agreement or otherwise;
7) any agreement relating to the carriage of goods or passengers on board the ship, whether
8) loss of or damage to or in connection with goods (including luggage) carried on board the
ship;
9) general average;
10) towage, pilotage;
11) goods, materials, provisions, bunkers, equipment (including containers) supplied or services
12) construction, reconstruction, repair, converting or equipping of the ship;
13) port, canal, dock and other waterway dues and charges;
14) wages and other sums due to the master, officers and other members of the ship’s com-
15) disbursements incurred on behalf of the ship or its owners;
16) insurance premiums (including mutual insurance claims) in respect of the ship, payable by
or on behalf of the shipowner or demise charterer;
17) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf
of the shipowner or demise charterer;
18) any dispute as to ownership or possession of the ship;
19) any dispute between co-owners of the ship as to the use of the ship;
20) restricted real rights established on the ship;
21) any dispute arising out of a contract for the sale of the ship.
The following claims in Estonia are secured by a maritime lien:

1) claims for wages and other sums due to the master, officers and other members of the crew
in respect of their employment on the ship, including costs of repatriation and social security
2) claims 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;
3) claims for reward for the salvage of the ship;
4) claims for port, canal, and other waterway dues and pilotage dues;
5) claims which arise out of direct damage caused by the operation of the ship other than da-
mage to cargo, containers and passengers’ effects carried on the ship.

Yes.

Yes.
Arrest is also permissible of any other ship or ships which is or are owned by the person who is
owner of the ship in respect of which the maritime claim arose, except if the claim arises from a
dispute concerning the right of ownership or possession of a ship.

Arrest is also permissible of bareboat charterer, time charterer or voyage charterer of the ship in
respect of which the maritime claim arose, except if the claim arises from a dispute concerning
the right of ownership or possession of a ship.
*Martin Männik a Partner of Law Firm Pohla & Hallmägi. He has graduated the Faculty of Law of Tartu University in 2003 and Lund University
(LL.M) in 2006.
Law Firm Pohla & Hallmägi has a long history of ship arrests, being one of the first law firms engaged in ship arrests in Estonia. Martin Männik
is responsible for all questions relating to maritime matters. He consults Estonian credit institutions on a daily basis involving arrest and enfor-
cement proceedings of mortgaged vessels in Estonia and elsewhere in the world.
He represents clients in litigations concerning ship arrest in Estonia and has represented both creditors, owners of arrested vessels, mortga-
gees and ports as interested parties in the ship arrest procedure and in civil cases concerning collision of vessels and maritime insurance. He
also assists various shipbuilders on a daily basis and is responsible for vessel transactions.
100
SHIP ARREST IN ESTONIA (Questions 10 to 26)
By Indrek Nuut*
MALSCO LAW OFFICE
indrek@malsco.ee
www.malsco.ee
Tartu road 7, 10145 Tallinn, Estonia
Tel: +372 6115 007
Fax: + 372 6115 193

Yes. According to the law 5% of the claim is minimum counter-security. Usually Estonian Court
appoints counter-security in the amount of 15% of the claim. In case of small claims higher counter-
security may be appointed at the discretion of the judge. Estonian law provides currently 32 000 EUR
as maximum amount of counter-security. By recent decision of the Supreme Court, lower courts
may appoint higher counter security than 32 000 EUR if this amount is clearly not sufficient to
protect owners against consequences of illegal arrest. Consequently the arresting party may
after some time face a demand for higher security than originally paid to keep the arrest in for-
ce. Depending on the circumstances it is possible to apply that court will not appoint counter-
security – claims of crew wages are the most common in this category.
Yes. In order to arrest a ship for maritime claim owner of the vessel or bareboat-charterer needs
to be liable for the claim and should remain to be the owner or bareboat-charterer at the time
of the arrest. In order to arrest a vessel for maritime lien you may also proceed, if the claim is
against manager/operator of the vessel.
Estonia is party to 1993 Geneva Convention on Maritime Liens and Mortgages and recognises
list of maritime liens set forth therein.
your law firm?
Provided we receive the file in early morning hours, arrest is possible by afternoon or evening
of the next working day. In case we receive a file in the afternoon, arrest may not be possible
during the next working day, but only on the day after.
It is necessary to provide to the Court documents, which convince the Court that there is a valid
maritime claim. POA is required, but this does not need to be notarised and apostilled.
Upon applying for arrest all documents may be submitted electronically and no originals are
required. Originals as well as notarisations and apostilles may be required in later stages of
proceedings.
In case of clear agreement between the parties on jurisdiction of foreign court or arbitrage,
Estonian Court will not accept jurisdiction. In case of absence of agreement on foreign court
jurisdiction or when parties demonstrate that they do not object to the jurisdiction of Estonian
Court, it will accept jurisdiction over the substantive claim.

Court has to order a release, after which bailiff will take vessel documents back onboard, or
captain or lawyer can collect them from bailiff’s office. Bailiff’s fees need to be paid before do
101
cuments are released from bailiff’s office. After this there are no restrictions for a vessel to sail.
Should any problems with different authorities occur, court order of release can be used.

Quickest way to lift an arrest is to provide monetary deposit or first class bank guarantee in the
amount the court has appointed. This amount will be appointed in the court arrest order.
In arresting order court will appoint the exact amount against which vessel will be released, so
court order needs to be followed in this matter.

LOU is accepted only in case opponents agree this to be sufficient guarantee, legislation does
not support acceptation of LOU.

From the moment court receives monetary deposit order of release is issued immediately,
however not after office hours. In case of bank guarantee court may ask claimants opinion,
which delays the arrest for 1-2 working days. However dispute over acceptability of a bank gua-
rantee may stop release. Rough optimistic estimation for release, provided monetary deposit or
acceptable guarantee is given, shall be 24-48 hours from the moment court receives deposit or
original guarantee letter.

Yes, it is possible to contest an arrest, but this does not affect procedure of arrest or release
against guarantee. Contesting an arrest may take considerable time.
One month will be granted for claimants to take legal action on the merits.

There are no clear cases where arrest has been acknowledged wrongful, and currently it seems
that courts are unwilling to recognise wrongful arrest, but no provision of law prevents Esto-
nian Court to declare arrest wrongful in cases of misrepresentation or abuse of arrest mecha-
nism by the claimant.
Lifting of the corporate veil in the context of ship arrest is not possible.
It is possible to apply for a court to allow sale of a ship pendente lite starting from the moment
when her keeping costs under arrest (port dues, crew wages, bunkers, provision, port electricity
etc.) in substantial amount remain unpaid. Being priority claims these will later be taken firstly
from the proceeds of the sale and thus affect negatively all creditors. Any other circumstance
having similar negative effect to condition and value of the ship and thus also to interests of the
creditors will also serve as a ground for sale pendente lite. Obtaining a court decree allowing
sale may take few days, but bailiff’s procedure of sale on public auction, depending on circum-
stances, may take several months or even more. Quick sale on the initiative of the debtor against
private offer, which is expected to be higher than estimated proceeds of public auction, is per-
mitted by law, but such practice has not been introduced yet.
*Advising all aspects of maritime, corporate and commercial law since 1999 Indrek mainly specialises in sale-purchase, registration and arrest
of ships. He became managing partner of MALSCO (maritime law and shipping consultations) on 2006.
102
SHIP ARREST IN FAROES
By Annfinn V. Hansen*
LAWFIRM HANSEN | THOMASSEN | VINTHER
advokat@advokat.fo
www.advokat.fo
Undir Bryggjubakka 21, P.O. Box 106,
FO-110 Torshavn
Tel: +298 359595
Fax: +298 359596

Arresting a ship can be done fast and very effectively under the law of the Faroe Islands.
Often the arrest can be done within few hours from launching the application to the Court.
The rules are quite flexible and the Court does not demand notarized and authenticated
documents. The most time-consuming element is the obtaining of the acquired counter-
guarantee through the banks.
The Faroes Islands, as a part of the Kingdom of Denmark, is a party to the 1952 Arrest Con-
vention and also the 1967 Brussels Lien Convention, and the provisions of these Conven-
tions have been implemented in the Faroese Merchants Shipping Act. However, there are
no specific provisions for arrest of ships, and arrest follows the ordinary provisions for arrest
of properties, covered by the Law of Court Procedure.
A vessel can be arrested without being detained in a port, where the arrest instead will be
registered as an encumbrance in the Ship Registry. This is a normal procedure against vessels
under the Faroese flag and prevents a sale of the vessel.
No.
A ship may be arrested for any claim against the registered owner of the vessel and claims,
which are secured by maritime liens.
Yes.
No. The debtor has to be the owner of the vessel that is being arrested, unless the claim is
secured by a maritime lien.
It is possible to arrest sister ships if the vessels are owned by the same legal entity.
9. What is the position as regards Bareboat and Time-chartered vessels?
It is not possible, except for maritime lien, to arrest a vessel under Bareboat or Time-chartered
party, if the registered owner is not the debtor of the claim. However, there can be made an
arrest in assets owned by the charterer e.g. the bunkers onboard the vessel.
Yes. Counter-security by way of a bank guarantee issued by a bank in the Kingdom of Den-
mark will be needed.
103
11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime
lien?
No, except as mentioned above, that an arrest for a maritime lien can be made irrespective
of the owner of the vessel.
12. Does your country recognise maritime liens? Under which International Convention, if
any?
Yes. The 1967 International Convention of Maritime Liens and Ship Mortgages.
to your law firm?
An arrest can typically be obtained within a day. However, sometimes the Court will not be
available for an arrest during the weekends or nights.
No POA is required - only copy of relevant documentation for the claim.
Only the application itself should be in original. Documents can be faxed or e-mailed to the
Court.
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arres-
ted?
Yes. However, if the underlying agreement supporting the claim is subjected to arbitration
or litigation in a foreign forum, the Court will not assume jurisdiction.
17.What is the procedure to release a ship from arrest?
In order to release the vessel, there must be placed a security at the court.
The security must be placed in the form of a bank guarantee.
The size of the security must be exactly the same as the amount set up in the arrest. Usually,
the amount set up in the arrest covers costs and interests as well.
No.
Usually the same day as the court receives the security.
Yes. The party, which demands the arrest must issue a summons regarding the legitimacy of
the arrest, and in this connection it is possible to contest the arrest.
Legal action on the merits must be commenced within one week of the arrest date.
Yes. The arrestor is liable for wrongful arrest and is liable for any loss caused by the arrest. The
counter-guarantee provided by the applicant claimants is supposed to cover such damages.
No.
104
26. Is it possible to have a ship sold pendent elite; if so how long does it take?
If the ship-owner does not pay or put up a counter-guarantee for the claim in order to re-
lease the ship, the claimants will have to pursue the case in the merits in order to obtain a
judgement. Based on this judgement the vessel can be sold on a forced auction. The forced
auction procedure normally takes between 3 or 6 months.
*Mr. Annfinn V. Hansen is partner with Hansen I Thomassen I Vinther Law Firm. He is born in 1963 and obtained his degree as Master of Law
from the University of Copenhagen in 1989. Except for a short period as a judge in the Danish Eastern High Court, he has been working as
an advocate with focus on business.
Annfinn V. Hansen has represented a large number of shipping companies, brokers and assurance companies as well as banks.
Annfinn V. Hansen has for many years been the chairman of the Faroese Merchant Vessels Association and holds positions in a number of
boards. Furthermore he is Honorary Consul for Germany.
105
SHIP ARREST IN FIJI
By Nicholas Barnes & Ronal Singh*
MUNRO LEYS
mail@munroleyslaw.com.fj
www.munroleyslaw.com
Level 3, Pacific House, Butt Street
PO Box 149, Suva, Fiji
Tel: + 679 331 4188
Fax: + 679 330 2672

The High Court of Fiji has the Jurisdiction to grant a warrant to arrest Ships within Fiji waters. The
arrest procedure primarily used to obtain security for a maritime claim or a lien. The Law relating to
ship arrest is complex and a failure to observe the law and procedure can be critical to establish ju-
risdiction. The applicable law and the procedure have been primarily adopted from England. It is a
very powerful tool and so not surprisingly it has some very stringent rules surrounding the process
of obtaining a warrant for arrest.

Currently Fiji does not apply any international convention in respect of ship arrests. It simply relies
on domestic laws and laws adopted from England (including Common Laws).

No. The procedure to arrest a ship is through a Court order. This is obtained by filing an ex-parte
application. The rationale is not to risk alerting ships of her impending arrest.

Yes. The Fiji courts do have jurisdiction to grant freezing orders.

The Admiralty Jurisdiction of the High Court of Fiji is as follows:
(a) Any claim to the possession or ownership of a ship or to the ownership of any share therein;
(b) Any question arising between the co-owners of a ship as to possession, employment or earnings
of that ship;
(c) Any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) Any claim for damage done by a ship;
(e) Any claim for damage received by a ship;
(f) Any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in
her apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or
persons in possession or control of a ship or of the master or crew thereof or of any other person
for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or
control of a ship are responsible, being an act, neglect or default in the navigation or management
of the ship, in the loading, carriage or discharge of goods on, in or from the ship or in the embarka-
tion, carriage or disembarkation of persons on, in or from the ship;
106
(g) Any claim for loss of or damage to goods carried in a ship;
(h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use
or hire of a ship;
(i) Any claim in the nature of towage in respect of a ship or an aircraft;
(j) Any claim in the nature of pilotage in respect of a ship or an aircraft;
(k) Any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
(l) Any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
(m) Any claim by a master or member of the crew of a ship for wages, and any claim by or in respect
of a master or member of the crew of a ship for any money or property which, under any of the
provisions of the Merchant Shipping Acts, 1894 to 1954, is recoverable as wages or in the court and
in the manner in which wages may be recovered;
(n) Any claim by a master, shipper, charterer or agent in respect of disbursements made on account
of a ship;
(o) Any claim arising out of an act which is or is claimed to be a general average act;
(p) Any claim arising out of bottomry;
(q) Any claim for the forfeiture or condemnation of a ship or of goods which are being or have
been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any
such goods after seizure, or for droits of Admiralty.

The High Court of Fiji has jurisdiction within Fiji waters irrespective of the ships flag. This provides
comfort to local businesses intending to do business with ship calling into a Fiji Port for repair or
supply of goods and materials.

For a ship to be arrested the debtor must have some interest in the ship, that can include the ow-
ner, charterer or person in possession and may in certain circumstances include a beneficial owner.
This is a requirement that is envisaged in the Administration of Justice Act 1956 and Supreme Court
Act 1981. Both of these English Acts are applied and relied upon in Fiji.
The effect of an arrest was expressed in the case of Hai Soon International Trading PTE Ltd v Ow-
ners of the Motor Vessel Yin Chen No. 1 [2010] FJHC 474 where Justice Wati referred to the case
of the case of The “Cella” (1888) 13 P.D. 82 (C.A.) which discussed the effect of a ship arrest Lord
Esher M.R said at page 87:
“the moment that the arrest takes place, the ship is held by the Court as a security for whatever may be adjudged by
it to be due to the claimant”; and Lord Justice Fry said at page 88: “The arrest enables the Court to keep the property
as security to answer the judgment, and unaffected by chance events which may happen between the arrest and
the judgment”; and Lord Justice Lopes said at page 88 as well: “From the moment of the arrest the ship is held by the
court to abide the result in the action, and the rights of the parties must be determined by the state of things at the
time of the institution of the action, and cannot be altered by anything which takes place subsequently.”
The case of Hai Soon International Trading PTE Ltd v Owners of the Motor Vessel Yin Chen No. 1
referred to Section 1(1) of the Administration of Justice Act, 1956 which provides;
For the purposes of enforcing either a maritime claim or a maritime lien a sister ship can also be
named as a party in rem. The case of The Preverse [1973] 1 Lloyd’s Rep. 202 states that where
proceedings are taken out against a sister ship, the rule is the same as that applying to the actual
offending ship. However, the claim or lien can only be realised against one. If the ship that is directly
subject to the cause of the action cannot be arrested, a sister ship may be arrested provided
(a) it is named within the proceedings and
(b) beneficially owned by the same debtor.

The Supreme Court Act 1981 does not limit the word charterer to demise charterers. It includes
time charterers. This means that the same procedure is applied.

There is no requirement to offer any form of counter security in any form. However the court must
be satisfied that a right to arrest exists either through a maritime claim or a maritime lien.
107
No. The process to arrest a ship is the same whether the ship is arrested pursuant to a lien or a
claim.
A maritime lien is recognised by the Fiji Court through Common law. Justice Scott in Jeyang Inter-
national Company Limited v the Owners of the Motor Vessels Kao Ya No. 1 and Kao Ya No. 137
Admiralty Action No. 9 of 2001 accepted the priority classification by Lord Diplock in The Halcyon
Isle (1980) 3 ALL ER 197. These cases establish 6 classes of maritime liens in an order of priority.
These are as follows:
1. Salvage;
2. Collision damage;
3. Seamen’s Wages;
4. Bottomry (now obsolete);
5. Master’s wages;
6. Master’s disbursements
law firm?
An application to arrest ships can be completed within 24 hours - 48 hours depending upon com-
plexity. The Application is then allocated by the registry to a judge for determination of the arrest.
All evidence is required to be provided to court (including documentary evidence) in print. These
are always annexed to an affidavit. The registry will not accept the filing of documents electronically
unless the Court directs.
The Court is moved through a motion together with an accompanying Affidavit. This is accompa-
nied by other documents. No documents are filed electronically unless ordered by the Court.
Yes it will unless the jurisdiction of the court is challenged.
on the merits?
The Limitation Act provides 3 years for actions in tort (personal injury) otherwise it is 6 years.

Yes they do. Damages usually follow.
Not to date but as a common law jurisdiction – incremental changes can occur.
If the ship’s value deteriorates the court can direct the admiralty marshal to sell the ship pendente
lite and pay the gross proceeds into court. There are no time frames for the court to order this.
However if either of the party contests the application to sell it may take 2 – 3 months for the court
to resolve.

A motion and affidavit is filed to either offer bail or challenge the jurisdiction of the Court.

A cash bond or an undertaking by the vessel owners to satisfy any judgment given against the
vessel.
108
Yes

If it is accepted by the Plaintiff, the Court may accept it as well.

Usually parties negotiate before applying to Court for release. However if a motion is filed and con-
tested, it can take between 7-21 days.

As arrest is usually done ex-parte, the ship owners are able to contest the orders at once
a. as soon as it is served upon the return date.
b. upon the return date given by the Court in the arresting order.
*Nick was admitted to the roll of Solicitors of England and Wales in 1991 and spent the first years of his career in private practice in the
UK as a commercial litigation solicitor practising mainly in professional negligence and employment law.
In 1997 Nick left the UK to work in the South Pacific island state of Tuvalu as the People’s Lawyer, a government-funded public ad-
vocate position, with a wide range of civil and criminal law responsibilities. After 12 months in Tuvalu he joined the Attorney General’s
Office in Fiji as Principal Legal Officer for two years before returning to the United Kingdom, where he worked as an in house lawyer
for Greenpeace UK, a prominent non-government organisation. In July 2002, he was appointed Solicitor-General of the Caribbean
island state of Grenada, a position he held until returning to Fiji to join Munro Leys in 2004. He is also Managing Partner of Munro Leys.
Nick’s practice has a particular emphasis on commercial, administrative and environmental law. He is admitted to practise law in New
Zealand, Tuvalu and Grenada as well as England and Wales and Fiji.
*Ronal gained his Bachelor of Laws degree from the University of the South Pacific in 2006. He completed his professional Diploma in
Legal Practice in 2007 and was admitted to the Fiji Bar in the same year. Ronal spent several years working in private practice in Fiji
before joining Munro Leys in May 2012.
Ronal primarily practises in the firm’s Litigation Group covering a wide range of commercial and private disputes.
Ronal is a mediator accredited by the Australian Centre for Dispute Assessment & Resolution.
109
SHIP ARREST IN FINLAND
By Ulla von Weissenberg*
BORENIUS ATTORNEYS LTD
ulla.weissenberg@borenius.com
www.borenius.com
Borenius Attorneys Ltd
Eteläesplanadi 2, 00130 Helsinki, Finland
Tel: +358 20 713 3460
Fax: +358 20 713 3499

The arrest of foreign vessels is possible in Finland if the underlying claim is a maritime claim as
defined in the Arrest Convention of 1952, incorporated in the Finnish Maritime Code of 1994
(Chapter 4). However, Chapter 4 of the Maritime Code is not applicable if the applicant is domi-
ciled in Finland and the vessel in question is registered in the Finnish Register of Ships or if the
claim is of a public nature.
The existence of a maritime claim in itself is not a sufficient ground for an arrest. It is only possible
to arrest a vessel in Finland if the material claim as such can be enforced against the vessel in
Finland. Therefore, the vessel must be owned by the defendant or the claim should be secured
by a maritime lien on the vessel. When arresting a vessel in Finland the applicant must provide
security to cover the costs of an unjustified arrest.
An arrest is constituted in two independent and separate phases. Firstly, the applicant must
obtain a court order for the arrest and thereafter apply for the actual enforcement of the order
from the executive authorities. To maintain an enforced arrest in force, the applicant must com-
mence legal proceedings against the defendant to obtain an enforceable judgment within 1
month from the date when the arrest was granted.

Finland has on 21 December 1995 ratified the International Convention for the Unification of
Certain Rules Relating to the Arrest of Seagoing Ships of 1952 (“the Arrest Convention”). Finland
has also on 31 August 2000 signed the International Convention on the Arrest of Ships of 1999
but the Convention has not yet been ratified.

If the provisions of the Maritime Code concerning arrest do not apply for reasons explained in
question 1, the general rules on precautionary measures incorporated in the Finnish Judicial
Procedural Code, Chapter 7 apply.

When enforcing an arrest order the vessel is in principle taken in to the custody of a Bailiff but
due to the nature of the arrested property, this is not possible in practice. Instead, the Bailiff
takes possession of all the vessel´s necessary documents e.g. nationality certificate in order to
prevent the vessel from leaving port. The vessel can also be chained to the pier or prevented
from refuelling. The Bailiff can also give notice of arrest and request executive assistance from
e.g. the Coast Guard, the pilots, the Customs or the port authority to ensure the vessel remains
under arrest.

Generally, it is possible to arrest seagoing ships only to secure the enforcement of maritime
claims as defined in the Arrest Convention. However, in certain cases the provisions set forth in
the Convention do not apply. See question 1.
Under Chapter 7 of the Judicial Procedural Code, the granting of an arrest order is subject to:
(i) prima facie evidence of the applicant’s claim which the defendant can be ordered to pay by
a judgement or an arbitral award enforceable in Finland; and
110
(ii) the existence of a threat that the defendant will hide, destroy or dispose of his property or
otherwise endanger the applicant’s claim.

Finland has extended the scope of the application of the Arrest Convention to all vessels regis-
tered in the Finnish Register of Ships or in corresponding foreign ship register, regardless of the
nationality or the trading areas of the vessel.

When ratifying the Arrest Convention Finland limited the possibility to arrest vessels owned
by someone who is not liable for the claim of the applicant. Only when a claim is secured by a
maritime lien on a vessel such vessel can be arrested irrespective of who the debtor is.
A fundamental principle under Finnish law is that in order to secure a claim it is only possible to
arrest property owned by the defendant. Therefore a sister ship can be arrested if both vessels
were owned by the same defendant at the time when the maritime claim arose. The same does
not apply to ships in associated ownership.
However, arrest of a sister ship is not possible if the underlying maritime claim is based on a dis-
pute of ownership of a vessel or a dispute of ownership, possession or operation of or earnings
from the vessels between co-owners of a vessel.

It will not be possible to arrest bare-boat or time-chartered vessels if the charterer is solely liable
for the claim.

Yes, the applicant must provide security for any damage or loss which may be caused to the
defendant if the arrest of the vessel proves to be unjustified.
The law contains no guidelines for how to determine the amount of security. The Bailiff enfor-
cing the arrest order will at his own discretion decide what security will be considered sufficient
to cover the liability of the applicant and in practice both limited and unlimited securities have
been required. Generally only security given by a Finnish bank is accepted.
The Maritime Court may release the applicant from the obligation to provide security if the appli-
cant cannot provide security and the applicant’s claim is considered justified and well-founded.
However, it is highly unusual that such release is granted.
There are some differences in this respect. The main principle is that a ship can only be arrested
if the claim is a maritime claim and the vessel owned by the debtor. If a claim is secured by a ma-
ritime lien on a vessel such vessel can be arrested regardless of the debtor and it is not necessary
to show any threat that the defendant will hide, destroy or dispose of his property.
Finland recognises maritime liens. The claims secured by a maritime lien are listed in the Mariti-
me Code, Chapter 3 which corresponds to the list in the International Convention for the Unifi-
cation of Certain Rules relating to Maritime Liens and Mortgages of 1967. However, Finland has
signed the Convention but it has not been ratified.
A maritime lien is valid even if the debtor is a non-operating vessel owner, a charterer or other
person who takes use of the vessel.
to your law firm?
Generally, the application for an arrest must be served on the defendant and the defendant is
given an opportunity to file a defence before the arrest order is finally given. As this procedure
often endangers the purpose of the arrest it is possible to obtain an interlocutory order which
is immediately enforceable without any service of documents on the defendant. In cases of
extreme urgency an arrest order may even be obtained on the same day it is filed and enforced
provided that the required security is available.
111
If the court so orders, a lawyer shall produce a POA personally signed by his/her client unless
orally retained by the party in court. In general, courts do not require POAs from attorneys at
law (i.e. members of the Finnish Bar Association).
There are no specific requirements regarding the particulars of the arrest application but it
should at least contain details of the applicant and the defendant, particulars of the vessel to be
arrested, particulars of the amount of the claim with supporting documentation, a brief account
of the grounds of the claim and an explanation why the arrest is considered to be necessary by
the applicant.
A written application with supporting documents must be filed with the Maritime Court in or-
der to obtain an arrest. If the applicant wants to invoke the benefit of a maritime lien, he must
produce evidence of the existence of such lien.
Normally an extract from the ship´s register or a corresponding document as evidence of the
ownership of the vessel is required. Also particulars of the parties and the vessel to be arrested
as well as particulars of the amount of the claim can be attached. The attached documents
are not required to be original. Neither notarization nor apostille of a document are normally
required. Parties are in principle allowed to deliver documents electronically to the authorities. If
the document is required to be signed, the requirements of an electronic signature as stated in
the relevant act must be met. However, if the document includes information about the sender
and there is no uncertainty about the originality or integrity of the document, the electronic
document can be delivered unsigned to the authorities.
A court competent to try an action in civil litigation is the Maritime Court within whose juris-
diction the defendant is domiciled, has his principle place of business or where the vessel to be
arrested is present.
If security has been lodged with an authority for release from arrest, an action can be brought
before the Maritime Court where the security was lodged. The same applies even if the security
has lapsed.

In order to release a ship from arrest the defendant can provide the Bailiff with a security for the
applicant’s claim. In some cases the arrest can only be lifted if the defendant provides a security
that is approved by the applicant or in the Bailiff’s view corresponds to the applicant’s need for
legal protection in an appropriate and sufficient manner.
An arrest can also be lifted at the request of the defendant unless the applicant demonstrates
that legal proceedings against the defendant were commenced on time. The applicant must
commence legal proceedings against the defendant within one month from the day when the
final arrest order was granted. An arrest shall also be lifted if the principal claim has been rejec-
ted or dismissed by a court or if the claim has been paid.

The security may take the form of a monetary security or a guarantee. The Bailiff may require a
bank guarantee from a Finnish bank.

The security shall cover the amount that the court has ordered the ship to be arrested for. The
security shall generally also cover interest and legal costs.

Yes, LOUs of P&I clubs are usually accepted as sufficient to lift the arrest.

If the grounds for the arrest have lapsed, the Bailiff shall carry out the reversal measures. The law
does not specify the duration of this procedure.
112
When the arrest is granted and enforced by a separate arrest order or during the proceedings
of the principal claim, the defendant can appeal such an order in the court of higher instance.
However, in cases of an interlocutory order, the order cannot be appealed but the applicant
must commence legal proceedings against the defendant within one month from the final
arrest order.
The applicant must commence legal proceedings against the defendant within one month
from the day when the final arrest order is granted.

The applicant’s liability for an unjustified arrest is strict. Therefore, the applicant is liable for any
loss the defendant may suffer as a result of an unjustified arrest even if the applicant has not
been negligent or acted in bad faith when enforcing the arrest.
Piercing the corporate veil is not common. Therefore it is not normally possible to arrest the pro-
perty of owners associated with the debtor.However, in 2015, the Supreme Court pierced the
corporate veil in an IP-related case (KKO 2015:17) and considered the parent company liable for
the debts of its subsidiary. However, in that particular case, there was a relatively clear effort on
part of the parent company to circumvent its obligations under law, and it is yet too early to as-
sess the impact of the case. Partnerships are an exception to the general rule, since the general
partners are personally liable for the debts of the company.
In addition, property formally owned by a third party can be attached to secure a claim on
condition that the ownership is based on formal arrangements which do not correspond to the
actual nature of the transaction and aim at avoiding enforcement. A further condition is that
the applicant´s claim cannot be otherwise recovered from the debtor within a reasonable time.
The main principle under Finnish law is that it is not possible to sell the ship pendente lite. Accor-
ding to the Finnish Judicial Enforcement Act, if property which is subject to rapid deterioration
or which is expensive to retain in custody has been arrested but the court has not yet given a
judgment, the Bailiff is entitled to sell such property at the request of the claimant. In theory
these principles may apply also to vessels under arrest.
*Ulla von Weissenberg advises on all aspects of international maritime and transport law and related insurance issues. She is also experienced
in issues relating to shipbuilding and ship purchase. Ms von Weissen-berg litigates frequently before courts and arbitral tribunals.
Ms von Weissenberg heads the Shipping, Transport and Insurance practise of Attorneys at law Borenius Ltd.
Prior to joining Borenius Attorneys Ltd, Ms von Weissenberg was a partner at Aminoff & Weissenberg, Attorneys Ltd. She has worked in the
shipping industry with legal matters since 1994.
113
SHIP ARREST IN FRANCE
By Henri R. NAJJAR, Partner*
DELVISO AVOCATS
henri.najjar@avocatline.fr
www.delviso-avocats.fr
3 rue la Boétie 75008 PARIS
Tel: +33 (0)1 84 16 46 40 - Fax: +33 (0)1 84 16 46 44
3, quai de la Joliette 13002 MARSEILLE
Tel: +33 (0)4 91 90 36 10 - Fax: +33 (0)4 91 90 36 11

During the years following the adoption of the 1952 Brussels Convention, France was held to
be a ship arrest haven. Indeed, as a response to the abusive expansion of single ship companies,
French judges resorted to an extensive interpretation of article 3.2 of the Brussels Convention,
granting orders of arrest against any ship apparently owned by “the same beneficial or associa-
ted owner”, such concept including a company which shares are owned by an entity holding
also shares in the capital of the debtor. This movement, which led to various conflicting judg-
ments, subsided in the mid nineties. The French courts back-pedaled to a more conservative
view, whereby the piercing of the corporate veil must reveal the fictitious character of the com-
pany owning the ship (see parag. 25 below)? France remains however an interesting forum for
arrest insofar as the domestic legislation allows, under certain conditions, the arrest of a ship for
any claim against the owner, were it not maritime, and as the procedure is relatively not costly
and can be implemented rapidly.

France ratified the Brussels Convention on the Arrest of Sea-Going Ships of 10 May 1952 and
incorporated it through the Decree no.58-14 of 4 January 1958.

Yes. Under the domestic regime framed by the Code of Transports (art. L.5114-20 to L.5114-29),
the Decree no.67-967 of 27 October 1967 concerning the status of vessels, as amended (art. 30
to 58) and the Code of Civil Procedures of Execution (art. L.111-1 et seq. and art. R.112-1 et seq.).

As a matter of principle, a freezing injunction may be issued under the provisions of the Code
of Civil Procedure, in case of urgency whenever the claim is not seriously disputable, otherwise
when it aims at preventing an imminent damage or at stopping a disturbance obviously un-
lawful. In practice, it is rarely ordered against a ship.

Under the Brussels Convention, ships may be arrested for any of the “maritime claims” identified
in article 1 of the Convention. Under the domestic legislation, ships can be arrested for any pri-
ma facie claim that the petitioner may have against the owner of the ship.

Yes. All ships calling at a French port may be arrested – save warships and state-owned ships
employed in a public non-commercial service or ships proven to be necessary for the personal
exercise of a professional activity (eg. fishing boats).

Subject to the maritime claims identified in the Brussels Convention, in the event secured by a
maritime lien, and to the circumstances described below, French judges have regularly dismis-
sed any petition for the arrest of a ship not owned by the debtor.
Under French law, any ship belonging to the debtor may be arrested even where the claim is
114
not related directly to the ship. The Brussels Convention permits such arrest provided the claim
is not in connection with the title to or ownership of a particular ship or with disputes between
co-owners or the mortgage or hypothecation of this ship.
A ship owned by an associated company of the debtor may be arrested only if the company is
proven to be fictitious (see parag. 25 below), otherwise whenever the associated company is
deemed to be jointly responsible for the claim.
Under the Brussels Convention, the holder of a maritime claim against the bareboat or time
charterer of a ship is entitled to arrest the said ship or any other ship in the ownership of the
charterer. The French domestic regime allows such arrest only if the claimant has a maritime lien
on the ship or has reasonable grounds to believe that the underlying obligation was concluded
on behalf of the actual owner of the ship.

It is not common practice that French courts require counter-security as a prerequisite for the
arrest of a ship. However, judges have the free discretion to decide otherwise.
There is no difference in the procedure of arrest. However, a maritime lien would allow the
arrest of the ship irrespective of the identity of its owner (“into whatever hands it may pass” - art
8 of the Brussels Convention; art. L.5114-18 of the Code of Transports).
Yes. France ratified the Brussels Convention on Maritime Liens and Mortgages dated 10 April
1926, incorporated into French domestic law (art. L.5114-7 et seq. of the Code of Transports),
it being highlighted that an additional maritime lien is provided under article L.5114-8 of the
Code of Transports (“the shipping agent’s claim for disbursements paid outside the port registry
of the vessel”).
your law firm?
If all the necessary documents are provided in due time, the arrest can be made within the same
day in case of urgency.
14. Do you need to provide a POA or any other documents of the claim to the Court?
There is no need to provide a POA. Obviously, the petition must be substantiated with any do-
cument evidencing the existence and the cogency of the claim. When the petition is grounded
on the Brussels Convention, the documents must also show the maritime nature of the claim.
documents require notarization and/or apostil, and when are they needed?
In practice, no original or notarized documents are required. The documents supporting the
petition must be handed to the ruling judge.
Save when the Brussels Convention applies (art.7), French judges may not rule on the merits of
the claim, on the sole ground that the ship was arrested within their area of jurisdiction (Forum
Arresti). The criteria and conditions set under the international rules of conflict, as per the appli-
cable International Conventions and EC Regulations, must be met.

A ship may be released from arrest either by providing the appropriate guarantee or deposit as
per the order of arrest or by serving upon the arrestor a writ of summons with a view to challen-
ging the arrest (see parag. 22 below).

As a matter of principle, any security that would be equivalent to the guarantee offered by the
arrest of the ship for the recovery of the claim is acceptable. In practice, French judges accept
bank guarantees, cash deposits and P&I letters of undertaking.
115
Security would need to cover the exact sum for which the arrest of the ship has been ordered.
This sum often includes a provision for interests and costs.

P&I letters of undertaking are usually deemed sufficient when provided by P&I Clubs members
of the International Group. For other P&I Clubs, it would depend of the identity, reputation and
creditworthiness of the Club, as freely appreciated by the ruling judge.

In usual cases of urgency, the ruling judge would issue an order to lift or confirm the arrest of
the ship the same day of the hearing at which the arrestor would have been summoned to appear.
Once obtained, the order to lift the arrest can be notified forthwith, through bailiff, to the har-
bour master for an immediate release.

The arrest of a ship is challenged by writ of summons served upon the arrestor, which is dee-
med to have elected domicile at the offices of its lawyers and/or bailiffs. The writ, which does
not need to be translated, summons the arrestor to appear before the judge who ordered the
arrest at a hearing that could be scheduled at the first convenience of the judge or his/her subs-
titute, including the same day of the arrest.
The claimant must institute legal proceedings on the merits within one (1) month after the
arrest is performed, otherwise the arrest will automatically be held cancelled.

French judges are reluctant to accept a claim for compensatory damages for wrongful arrest,
unless the bad faith or malice of the arrestor is clearly established.
25. Do the Courts of your country acknowledge the pierce and lift of the corporate veil?
Yes. In this respect, French judges have been relying on the concept of “Fiction” instead of the
theory of “Appearance”, i.e. one must establish that the company owning the ship is fictitious.
To this end, various elements must be gathered: eg. same beneficial or associated owner, want
of employees, concurrency of assets and/or debts, unity of management, lack of participation
to the profits and/or debts of the company, unequal distribution of the dividends, existence of
a subordination bond between the existing entities, etc.
Yes. The judicial sale of the arrested ship is possible when the petitioner holds an enforceable
deed or judgement. In practice, the procedure of judicial sale lasts around three to six months.
*Henri Najjar holds a Master Degree in Business Law (Paris II, Assas) and a LLM in Maritime Law (Southampton, UK).
Member of the Paris Bar, Founding partner of the law firm DelViso-Avocats, with offices in Paris and Marseille, Henri advises and
handles litigation of all kind in connection with the maritime practice, including casualties at sea, oil pollution and charterparty disputes.
He represents P&I clubs, shipowners and various French, Spanish and US road carriers and freight forwarders, and has developed
an expertise in the set-up of agencies and joint ventures worldwide. Henri is author of an outline on the Events of the Sea: Collision,
Salvage, Towage, General Average (Lexis-Nexis) and of various articles published in Lloyd’s List, Bulletin des Transports and The
Maritime Advocate.
He is member of the Association Française de Droit Maritime and the Instituto IberoAmericano de Derecho Maritimo, speaker at the
International Maritime Committee, International Bar Association, Shiparrested and Containerisation International conferences.
116
SHIP ARREST IN GEORGIA
By Capt. Valerian Imnaishvili*
MARINE LEGAL ADVISER CO. Ltd
info@marinelegal.biz
www.marinelegal.biz
7 Parnavaz Mepe Str., 6000 Batumi, Georgia
Tel: +995 422 221550
Fax: +995 422 221550

Georgia is not a signatory part of the International Convention for the Unification of Certain
Rules relating to the Arrest of Sea-going Ships (Brussels 1952) and UN International Convention
on Arrest of Ships (1999), but has implemented provisions of the Conventions into maritime
legislation.

The source of law during a ships arrest procedure implementation is the following:
1. International legal instruments the 1982 UN Convention on Law of the Sea.

2. Domestic legal instruments:
Maritime Code of Georgia (15.05.1997r. N 715 - IIC).
The Law of Georgia «On maritime areas» (Nº1756 ot 24.12.1998).
The Law of Georgia «On international private law» (29.04.1998r. 1362- IIC)
The Law of Georgia «On State Boundary» 17.07.1998 Nº1536-PC
Georgia Code of Civil Procedure (14.11.1997r. Nº1106- 1C)
3. Judicial practice of Georgian courts

State arbitration has been abolished from the justice system of Georgia, and the system was
generated in the form of general courts of three instances, administering justice through civil,
administrative and criminal jurisprudence. As a result, a specific judicial form of ships arrest has
been gradually formed.
In accordance with Article 831 of Maritime Code of Georgia ship’s arrest is implemented only
for maritime claim security. Maritime claim comes from the ship’s ownership and from other
property relations that arise in the construction, management, maintenance, commercial use,
and mortgage or as a result of activities related to the salvage of the ship.
In accordance with the general provision of Article 831 of Maritime Code of Georgia and Civil
Procedure Code (CPC) the only competent authority, which is authorized to consider the issue
of arrest and release of a vessel in Georgia is general court. And the procedure of arrest and re-
lease of a vessel is carried out in accordance with the CPC of Georgia. Taking into consideration
the structure and provisions of the CPC we can clearly conclude that the arrest of the ship can
be realized only as a form of security for the claim, which logically should be a maritime claim.
In Georgia, as well as in Romano-Germanic legal systems, there is a standard regulation when a
court considers a case involving a foreign element. In particular the court shall:
- Determine a jurisdiction of the court to the claim (suit, petition) being considered
- Determine the qualification and the nature of the claim being considered.
In such cases, as a rule, general competence is substantiated by the main legal instrument of the
international maritime law - the UN Convention on Law of the Sea.
Domestic regulations of competence of the courts in this part are stipulated for by the Law
of Georgia «On maritime areas». In particular: in accordance with Art. 26 legal enforcement
measures with the purpose of civil claim security can be applied to a foreign vessel which left
internal sea waters of Georgia and crossing its territorial sea, or is in the territorial sea of Georgia.
The important regulations substantiating the competency are provided by the Law of Georgia
«On international private law», which is - unlike Maritime Code or the Law on Maritime Areas –
117
one of the most common and used laws by the courts.
According to the generalized provisions of this law in relation to the Georgian courts competen-
ce, the following can be concluded:
-General courts of Georgia have special international competency in the applications regarding
legal enforcement if their implementation or claim for implementation or realization is carried
out in Georgia.
-For claim security Georgian court is competent if interim and conservatory measures of relief
are enforceable in the courts of Georgia or courts of Georgia have international jurisdiction. Use
of CPC of Georgia as procedural and legal substantiation of consideration and implementation
of ship’s arrest, is imperatively provided by Article 831 of Maritime Code of Georgia. Carrying out
the arrest of vessel as an interim and conservatory measure of relief Georgian law provides pro-
tection of the shipowner’s interests. In accordance with the Law of Georgia «On international
private law» foreign citizens and legal entities, participating in the civil process under Georgia
jurisdiction, enjoy the same legal safeguard as legal entities and physical persons – residents of
Georgia.

In accordance with the laws as listed above three types of detention and arrest are applicable:
a) detention by Harbour Master for 72 hrs.
b) ship’s arrest via the competent court decision.
c) ship’s arrest against legal decision of a foreign arbitrage or a court.
Each type has its own character and procedure

• detention by Harbour Master – the limit of such detention is 72 hrs, days off and public
holidays are not included in this period. It is implemented on the base of an application of
any physical person or legal entity, which has got grounds for claim for commercial damage
compensation or claim regarding the cargo etc. In order to implement this, a physical person
or legal entity should apply to the Harbour Master providing the copies of all the documents
proving the fact of damage or claim. The application should be in the Georgian language. Such
detention is applied for a short period in order the Parties could solve the issue peacefully or a
competent court could make a decision regarding detention of the vessel for a certain period of
time. In order to make such detention the preliminary 2 days notice is required.
• ship’s arrest via the competent court decision – as a rule, preliminary court arrest is carried out
for the period of 10 days for claiming on the merits to the appropriate authority (arbitrage or
court), which has competency for consideration of the claim on the merits.
• ship’s arrest against legal decision of a foreign arbitrage or a court – Georgia is a part of New
York Convention on Enforcement of Arbitral Awards and therefore foreign arbitrage decision
after the procedure of recognition and implementation by the Supreme Court of Georgia, is im-
plemented as domestic judicial act. Recognition and implementation procedure takes 10 days
from the date of acceptance the appropriate petition into processing.

Such alternatives are possible. Saisie conservatoire can be applied to any movable and immova-
ble property, providing the court is given documents proving the defendant’s ownership of the
subject regarded as a matter of security.

Base for detention and the appropriate legal actions are the main three reasons: First reason is
connected with Georgian law and regulations infringement. The second reason is connected
with providing of safety of navigation The third reason – application of any physical person or
legal entity having base for claiming for commercial damage compensation, claim for cargo etc.

There are not any privileges, rather than it is a governmental vessel, whose immunity is provi-
ded by international law.

Detention can be carried out only in relation to the shipowner and in rare cases - in relation to
the bareboat charter owner.
118
Maritime claim can be applied to any vessel, if its ownership is documentarily proved.

Detention can be carried out only in relation to the shipowner and in rare cases - in relation to
the bareboat charter owner providing Bareboat ownership documentary proof.
In the case of ships arrest the adequate form of security in order to release the vessel - can be
depositing the amount of claim to the court’s account by the defendant. Or some other forms of
coercive measures can be applied, such as a bank security, P&I security or some other, including
those not provided by the legislation of Georgia. In any case the court’s decision completely
depends on the Party demanded the vessel’s arrest.
No difference if the third reason occurs– application of any physical person or legal entity ha-
ving base for claiming for commercial damage compensation, claim for cargo etc.
Georgia law and courts recognize maritime liens for the debtor’s property irrespective of dama-
ge claim base – breach of obligations (law or contract) or delict. The provisions of the Interna-
tional Convention on Maritime Liens and Mortgages Geneva, 6 May 1993 are incorporated into
Art. 350 – 355 of Maritime Code of Georgia.
your law firm?
In order to make such detention the preliminary 3 days notice is required.
The following documents are necessary: original Power of Attorney to the lawyer (in Georgian
and English, as a rule) Statement of claim, copies of all documents regarding this case.
Georgian courts require originals or notarized copies of all important documents (contracts,
bills of lading, charter-parties, correspondence between the parties) of the plaintiff as stated in
the application.
Translation of all the documents into Georgian is carried out by a certified translator. Docu-
ments translation takes time and the client should bear this time factor in mind.
Other documents can be presented as copies, certified by a seal and signature of the plaintiff.
The documents (apart from the LOA) can be presented in electronic copies.
Georgian court can accept a claim on the merit for consideration if its competency is in accor-
dance with the Law of Georgia “On international private law”, irrespective where the vessel is,
or of the Parties have agreed in written form for proceeding the case in Georgia, are presented
by lawyers and have been familiarized with their right of objection in regards of the court’s
competency.

A vessel can be release by the order of the Court, which took a decision to arrest her, or by the
order of the Court of Appeal, if any appeal had been submitted.

Civil Code of Georgia provides that instead of arrest of the vessel – as claim security – financial
security can be applied as a local bank guarantee or a deposit submitted to a deposit account of
the Court. However, in practice this provision is applied quite rarely.
119
No interest is imposed on the penalty amount. When applying to the court the court fee is fixed:
about USD 90. Court of Appeal fee is approximately the same.

Maritime Code of Georgia provides that P&I Club or first-rate bank guarantee can be submitted.
In practice, this provision shall not apply in cases of administrative delinquencies. In the private
law disputes the application of this provision of in the private law disputes the application
of this provision depends on the goodwill of the Party who seeks arrest of a ship on property
requirements.

A vessel’s release depends on the grounds of the arrest. If the arrest was implied as a security
for a property claim, the time of release can be until the conclusion of the dispute on the merits.
In the cases of administrative delinquencies, the vessel is released from the arrest in 1-2 days
upon payment of the penalty.

Procedure of appeal exists and is widely applied.
In the case the court has made a decision to implement interim and conservatory measures of
relief before the claim on the merits has been arisen, the court grants 10 days period for decla-
ring to the competent court, and this period is not subject to extension in accordance with CPC.
On expiration of this period interim and conservatory measures of relief are withdrawn by the
court and the Party concerned cannot appeal to the court with the same claim on the same
base. In the case the claim on the merits has been declared security measures remain in force
until the final decision of the claim on the merits.

In the case or wrongful arrest a court can take a decision on release of the vessel providing:
(a) The interim and conservatory measures of relief appeared to be unjustified as the plaintiff’s
(concerned party’s) claim was dismissed and the decision has entered into force.
(b) The plaintiff has not applied to the competent court for considering the claim on the merits,
that’s why the court withdraws the interim and conservatory measures of relief. If the arrest has
been recognized as unjustified, the defendant can declare a claim against the arrest initiator in
order to compensate the sustained loss.
Georgian corporate law recognizes property accountability of a subject only based on organiza-
tional structure of the defendant if this company is registered in Georgia. As for a company not
registered in Georgia this issue is decided by the court on the basis of the common provision as
provided by the Law of Georgia “On international private law”
26. Is it possible to have a ship sold pendent elite; if so how long does it take?
With the purpose of court and arbitration decisions enforcement on the basis of a writ of exe-
cution issued by the competent court of Georgia, enforcement is carried out by the Executive
Bureau of the Ministry of Justice of Georgia. The procedure is as follows: the debtor is given
a written notice of the voluntary implementation of the court decision, after that the vessel is
auctioned by posting statements on the appropriate websites. After two failed auctions the
property is transferred to the creditor and the appropriate act of the Executive Bureau is issued.
*Valerian Imnaishvili born November 1954, Higher maritime education, Master Mariner, Professor, LLM, BSM, Member
ofIFSMA,SNAME,NI, 1991-1993, Senior Marine Superintendant of AGS Co. (London), Author of Georgian maritime legislation (till
2011),1994 November 2010 Maritime Administration of Georgia Head of Legal and Foreign Affairs, Flag State Implementation, Ships
Registry, National Competent Person on Maritime Security, from 2011 Partner of legal company “Marine Legal Adviser Co. Ltd”.
120
SHIP ARREST IN GERMANY
By Thomas Wanckel, Partner*
SEGELKEN & SUCHOPAR
wanckel@sesu.de
www.sesu.de
Baumwall 7, Überseehaus
20459 Hamburg, Germany
Tel: 0049/40/376805-18
Fax: 0049/40/362071

Germany has not only well-known international sea-ports at the North- and the Baltic-Sea but
also a long history in maritime law. Although it is said that German law is generally rather res-
trictive in allowing conservatory and provisional measures, no doubt an arrest can be achieved
within a day and with reasonable costs involved; in particular after the revision of the German
Maritime Trade Law (“Das deutsche Seehandelsrecht”), which entered into force on April 25th,
2013. The much disputed requirement of “the good reason” for an arrest (“Arrestgrund”) has
been deleted. Therefore the merits of an arrest now depend on a thoroughly prepared applica-
tion by the arresting party only.
The competent court is the local court (“Amtsgericht”) for the port in which the ship is berthing
or any inland court having jurisdiction to hear the case on the merits.
Mostly the courts decide the application without a hearing. If the presiding judge believes the
application may be without merits, he usually will inform the creditor’s lawyer before dismissing
it and allow him to complete his arguments or to withdraw the application.
Counter-Security may be ordered, but there are arguments to oppose to such a request.
As to the service of an arrest order it has been clarified that such order may be served on the
master onboard the vessel.
In order to have an arrest lifted the ship-owners may put up security in an amount ordered by
the court (“Lösungssumme”); such security may given by a bank-guarantee, however, as prac-
tice shows, P+I-Club letters of first-class P+I-Clubs (“International Group”) are widely accepted.
Simultaneously the ship-owners will file an appeal (“Widerspruch”) against the arrest-order and
an immediate hearing on the merits of the arrest-order will follow.

Germany is since April 1973 member of the Brussels Arrest-Convention of 1952.

No.

No.

Generally speaking an arrest may be applied for if the creditor’s claim is for payment or may
become a claim for payment, which is generally broader than the claims admitted under the
Brussels Arrest Convention 1952, however, that does not lead to major differences because – as
practice shows – those claims cover the vast majority of claims against ship-owners.
However, it should be noted that although the requirement of the “Good reason” for an Arrest
(“Arrestgrund”) has been deleted this deletion is limited to an arrest of the seagoing and inland-
waterway vessel only, and not for the arrest of the debtor’s other assets (i.e. for an arrest into
bunkers): Therefore an arrest-application for “other” assets of the debtor should clearly be sepa-
rated from an arrest of a vessel, as for such application the creditor still has to demonstrate that
without such an arrest the enforcement of a (later) judgement would be rendered impossible
or substantially more difficult.
121
An arrest may be applied for irrespectively of the flag.

As already said an arrest will only be granted if the shipowner is the debtor of the claim.
An arrest into a sister-ship is possible, provided that sister-ship is owned by the person/company
against the claim is made.

A vessel may be arrested if the claim against the bareboat or demise charterer is covered by a
maritime lien. It is also well arguable that for any other claim against the bareboat and demise
charterer the vessel can be arrested. This, by contrast, does not apply to time charterers. If other
property of charterers is concerned – i.e. bunkers – that property may of course also be arrested.

Although it was the clear intention of the government when reforming the German Maritime
Trade Code to make arrests into ships easier and less risky it is still uncertain whether the court
may ask for counter-security. Some commentators, pointing to the government’s intention, fa-
vour such an abolishment, however, the law of civil procedure (“Zivilprozessordnung”) remains
unchanged and due to § 921 it is still in the discretion of the judge to order counter-security. It
is therefore wise to argue within the application that such discretion no longer exists and that
no counter-security may be requested any longer, but of course, as time is of the essence, the
applicant should be ready to present security, if so ordered.
The reason that an order for counter-security may still be made is that German law is rather
strict on compensation for wrongful arrests. The counter-security should safeguard the ship-
owners’ claim for compensation and therefore the amount of such guarantee is not related to
the creditor’s claim but to the damage the ship-owners may suffer due to his ship being arrested
for a while. The actual amount is in the discretion of the judge, but as a general rule the ship’s
charter-rate for the off-hire period may be a reasonable guideline. A counter-security of the
creditor will be ordered in cash or – if so requested in the application - may be given by a bank
guarantee of a 1st class European bank. Therefore the creditors’ bankers should be involved in
due course before the application.
No, there are no differences.
12. Does your country recognize maritime lien? Under which International Convention, if any?
The applicant may have to consider maritime liens and mortgages. Germany is neither a mem-
ber to the International Convention on Maritime Liens and Mortgages 1967 nor 1993, but has
transformed the 1967 Convention into the Commercial Code (Handelsgesetzbuch); however,
cargo claims arising out of charter-parties or other contracts have been deleted. Liens are accep-
ted for crew wages, port- and pilots-charges, claims for personal injury and death or damage to
property, GA-contributions and salvage-remuneration and claims of the social-security-autho-
rities. Maritime liens prevail over all other liens on the ship, also over the ships’ mortgages but
they all can destroy the value of the ship for any creditor not being so secured.
your law firm?
That very much depends on how fast the creditor may arrange for a possible counter-security.
When all documents are at hand in the morning an arrest may be done in a day. The time limits
are then as follows: The arrest order may only be executed within one month from its delivery
to the applicant. The execution will be done by the court’s bailiff (“Gerichtsvollzieher”) on a
special order of the applicant, not by the court. The applicant also has to make sure that service
of the arrest-order to the ship’s owners is effected or at least applied for within one week after
the ship has been arrested and within the one-month-timelimit mentioned before. If one of
these time-limits has not been observed the arrest will be lifted if the ship-owners so applies to
the court. The execution may only be done as long as the ship has not started her voyage and
is still within a German port.
122
The arrest procedure is simple and starts with an application filed by a lawyer, although this is
not compulsory. No POA is required but advisable to avoid delay if so requested. The applica-
tion must be in the German language and supported by prima facie evidence (“Glaubhaftma-
chung”) as to the claim. This is usually been done by a sworn affidavit of a competent manager
of the creditor confirming that the facts stated in the application are true. However, no legali-
sation is required. As said it is also wise to argue that no counter-security may be requested any
longer, but if so ordered by the court, the creditor may be apply to provide for security by a 1st
class European bank. Very rarely the attached documents have to be translated into German; in
the main seaports of Germany such as Hamburg and Bremen the courts are well familiar with
the English language.
No special documents are required and thus no originals are needed. In Germany very few
courts accept an electronically filed motion, but only by fax. No notarisation, no Apostille.
16. Will your Courts accept jurisdiction over the substantive claim once the vessel has been
arrested?
As German Courts generally accept jurisdiction clauses, only for claims under the 1952 Arrest-
Convention the arrest may lead to jurisdiction.

There are in general two possibilities: The shipowners may either file a motion/appeal against
the arrest order (§ 924 German Procedural Code) or – as every arrest order has to include the
amount of security against the arrest may be lifted – pay such amount into the court’s cashier.

In general security has to be provided in cash or by providing an unconditional bank guarantee
issued by a first class bank located in the EU. Of course, if the parties to an arrest so agree, a
vessel may be released against a P+I-Club-Letter, preferably from a P+I-Club of the International
Group. However, a German court will not accept a P+I-Club-Letter, if the arresting party does
not agree.

The court may consider interest and costs, but in the end the shipowners have to provide such
amount as determined by the court in the arrest order. If the parties agree on a P+I-Club-Letter
interest and cost will of course be an issue.

As stated, that depends on an agreement of the parties; a court will not accept a P+I-Club-Letter
as sufficient security.

As stated in No.17 there are two possibilities: Contest the arrest by an appeal (i) or pay what
is ordered as security (ii). It is obvious that (ii) is fast and efficient as a prompt release only de-
pends on providing security and therefore it is advisable to have your preparations ready to pay
cash or provide for a guarantee and then appeal. If cash or security may not be provided for
whatever reason and the appeal is the only option it depends on the counter-arguments the
shipowners may present. The court will in any case set a date for a hearing immediately after
the counter-arguments have been lodged. German Courts will in general decide at the end of
that hearing. So generally speaking – depending on the merits of the counter-arguments – the
arrest order may be lifted within a couple of days.

Look at No.17!
As to the legal action there is no automatism, however, on an application of shipowners the
123
court will file an order giving the applicants reasonably time, which is in the discretion of the
court, mostly about a month. If the applicants fail to comply with this order the arrest will be
lifted.

German law is rather strict on compensation for wrongful arrests. § 945 ZPO stipulates a strict
liability which arises irrespective of illegality or fault on the part of the applicant for arrest but is
only due to the decision of the judge that the arrest was unjustified from the very beginning.
However, as all parties under German law also the shipowner has an obligation to mitigate
damage and should provide for a guarantee i.e. a P+I-Club without delay.
Under German law it is rather rare that the corporate veil may be lifted; only in cases of clear
misconduct of the managers or the shareholders there might be a direct claim against them.
During pending arrest proceedings the owners are not entitled to sell their vessel.
Note as to the revised German Maritime Trade Code (“Deutsches Seehandelsrecht”)
On April 25th 2013 the revision of the German Maritime Trade Code entered into force; the main changes are:
1. The excuses for error in navigation and fire are deleted; the carrier may (re-)include this excuse by imple-
menting a specific Standard Business (bill of lading-) term, however, he is not entitled to rely on such term if
he acted with intend or recklessly with the knowledge that damage would probably occur.
2. Arrest proceedings are much easier as a special requirement of the German Civil Code, the good reason
for an arrest (“Arrestgrund”) has been deleted.
3. The liability of and direct claims against the “actual carrier” have been established; cargo interests may
therefore sue the actual carrier and the contracting carrier.
4. The new maritime code is mandatory and the parties may not deviate from it by standard business (bill of
lading) terms but only by individual agreement, except for the limits of the liability and the excuses for error
in navigation and fire.
5. The liability of the carrier for death or injuries to passengers has been formed in line with The Athens
Convention of 2002.
6. Germany remains a Hague-State having the Hague-Visby-Rules implemented into the national Commer-
cial, therefore the limits of liability for cargo claims (2 SDR/kg or 666,67 SDR/unit).
*Thomas Wanckel is a Partner and Head of Shipping department at Segelken & Suchopar, Hamburg and Berlin. Born in 1953, he stu-
died in Hamburg and Providence/Rhode Island, and was admitted to the Hamburg Bar in 1984 and also to all German Appeal Courts.
In his career of more than 25 years in shipping and marine insurance law, Thomas specialized in subrogated cargo underwriters work,
charter party disputes, collisions and GA. He advises major German and international Cargo Underwriters. He has been Lecturer at
underwriters’ in-house seminars and at the International Cargo Recovery Conferences in New York 2008 and London 2010, as well as
at other Conferences in Istanbul, Odessa and St. Petersburg. Moreover, Thomas is Arbitrator, Member of the German Maritime Arbitra-
tion Association, the German Maritime Law Association, the Shiparrested.com network and the German Association for Transport Law.
124
SHIP ARREST IN GHANA
By Mr. Lawrence Fubara Anga
ÁELEX*
lfanga@aelex.com
www.aelex.com
Vanguard House 2nd Floor, No. 21 Independence Avenue
Ridge-Accra PMB CT 72, Accra
Tel: 233 (302) 224828
Fax: 233 (302) 2248

Jurisdiction in respect of admiralty matters is vested in the High Court in the first instance.
Appeals in respect thereof lie to the Court of Appeal and the Supreme Court.
Order 2 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) provides that all civil procee-
dings must be commenced by Writ of Summons and must be filed along with a Statement of
Claim. Every Writ of Summons must contain concise statement of the nature of the claim or
relief, remedy sought in the action.
Order 62 of C.I. 47 generally makes provision for maritime actions. At the time of issuing a
Writ of Summons, the Plaintiff files an Ex parte application for an order for a warrant of the
arrest of the ship. No warrant of arrest shall be issued until an affidavit by the party or his
agent has been filed and the following provisions complied with:
(a) The affidavit shall state the name and description of the party at whose instance the
warrant is to be issued, the nature of the claim or counter-claim and the name and nature of
the property to be arrested;
(b) In an action for wages or possession, the affidavit shall state the national character of the
ship proceeded against; and if against a foreign vessel, that notice of the commencement of
the action has been given to the Consul of the State to which the vessel belongs, if there be
one resident in Ghana, and a copy of the notice shall be annexed to the affidavit;
(c) In an action for bottomry, the bottomry bond, and if in a foreign language also a certified
translation thereof, shall be produced for the inspection and perusal of the registrar, and a
copy of the bond, or of the transaction thereof, certified to be correct, shall be annexed to
the affidavit;
(d) In an action of distribution of salvage the affidavit shall state the amount of salvage mo-
ney awarded or agreed to be accepted, and the name, address and description of the party
holding the same;
(e) The lodging of an undertaking in writing by the solicitor who applies for the issuance of
the warrant to pay the fees and expenses of the Marshal.
The application for an order for warrant of arrest not being on notice can be filed, heard and
granted within 24 hours. After the grant of the order a bailiff of the High Court is assigned
to serve the Order on the Captain of the vessel. A copy of the Order is also served on the
Harbour Master, the Port Authorities and Customs Excise and Prevention Service at the port
where the vessel is berthed.
A defendant who is served with an Order of arrest may apply to the High Court of Justice
which granted the Order to have the order set aside or provide adequate security for the
satisfaction of the Plaintiff’s claim. If the defendant is able to provide adequate security to the
satisfaction of the Court, the Court may vacate the order on terms and conditions as in the
opinion of the Court is just and appropriate. Upon service of the order vacating the warrant
of arrest, the Harbour Master and the Port Authorities will grant the Captain of the vessel
unconditional leave to sail from the port of call.
Ghana has not acceded to the Arrest Conventions.
125
There is no other way to arrest a ship, other than as stated in (1) above.
No. Arrests can only be effected pursuant to an action in rem brought against a ship or a
sister ship.
There is no law or rule of procedure that specifically defines what maritime claims are. The
position is that where the C.I. 47 does not make specific provision for the rule of procedure
in a matter, resort can be had to the practice and procedure applicable in any common law
jurisdiction. Without prejudice to the above, Section 446 of the Ghana Shipping Act, 2003
(Act 645) provides a definition of maritime actions in rem. It states that in any case in which
an action may be brought against a ship other than actions arising from claims to the pos-
session or ownership of a share in it, or a claim in respect of a mortgage or charge on a ship
or a share, where the person who would be liable on the claim in an action in personam,
when the cause of action arose, was the owner or charterer of, or in possession or in control
of the ship, the admiralty jurisdiction of the High Court may, whether the claim gives rise to
a maritime lien on the ship or not, be invoked by an action in rem against:
(a) that ship, if at the time when the action is brought, the ship is beneficially owned in res-
pect of the shares by that person; or
(b) any other ship which, at the time when the action is brought, is beneficially owned as
under paragraph (a); but in determining whether a person would be liable on a claim in an
action in personam, it shall be assumed that the habitual residence or a place of business of
that person is within Ghana.
Yes, a vessel can be arrested within Ghana irrespective of the flag she is sailing under.
No. The claim must be enforceable in personam against the owner of the ship or the demise
charterer.
It is possible to arrest sister ships, but not associated ships.
An action in rem can be brought against a bareboat vessel, but not against a time-chartered vessel.
Counter-security is not required for an arrest. All that is required is an undertaking by the
applicant or its Solicitor to pay the Admiralty Marshal’s costs in serving the arrest warrant.
However, if the applicant is a foreign entity without assets in the jurisdiction, security for
costs of the litigation is often ordered, upon the application of the Defendant.
No, the procedure is the same.
Ghana recognises maritme liens under Section 66 of Act 645, but she is not a party to any
Convention with respect to them.
According to Section 66 of Act 645, any of the following claims against an owner, demise
charterer, manager or operator of a vessel shall be secured by a maritime lien on the vessel:
(a) claims for wages and any other sums due to the master, officers and the other members
of the vessel’s complement in respect of their employment on the vessel including costs of
repatriation and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land or water, in
direct connection with the operation of the vessel;
(c) claims for reward for salvage of the vessel;
126
(d) claims for ports, canal and other waterway dues and pilotage dues;
(e) claims based on tort arising out of physical loss or damage caused by the operations of
the vessels other than loss of or damage to cargo, containers and passengers’ effects carried
on the vessel.
to your law firm?
An arrest order can be obtained within 24 hours of filing the requisite processes.
There is no requirement of a POA, however copies of all relevant documents supporting the
claim will have to be provided to the Court.
Original and hard copies of all the documents are required, but they do not have to be no-
torized. Documents cannot be filed electronically.
Yes. Ghanaian courts will accept jurisdiction over the substantive claim once a ship has been
arrested within Ghanaian territorial waters.
Where owners have placed acceptable security for the release of a ship, the court may order
release of the ship upon request made by the owners for release of the ship.
In some cases, the arrestor could request for release of the ship, where owners have placed
acceptable security for the release.
In some cases, the court may order release of a ship under arrest, if owners successfully cha-
llenge an order of arrest.
Security such as bank guarantees, P and I Club LOUs and insurance bonds are acceptable to
be placed for the release of ships.
Yes, security must cover the claim, interest and costs.
20. Are P and I LOUs accepted as sufficient to lift the arrest?
Yes, P and I LOUs are accepted as sufficient to lift the arrest.
A ship can be released within 24hours of filing an acceptable security.
Yes, there is a procedure to contest the arrest.
The Plaintiff (arresting party) must file a statement of claim at the time of filing the ex parte
motion for a warrant of arrest. As a result, the claim documents are usually served along with
the arrest warrant. There is accordingly no period of delay between the arrest taking place
and the action on the merits being commenced.
Yes. Costs, damages, demurrage and expenses will be recoverable if the defendant can
show that the arrest was made unreasonably and in bad faith.
Ghanaian courts may be prepared to pierce and lift the corporate veil under certain limited
127
circumstances, for example in the instances of fraud.
Order 62 rule 16 of C.I. 47 makes it possible for a ship to be sold pendent lite. The process
of sale can take about two months, after the applicant has obtained the sale order and the
appraisement of the ship by the Admiralty Marshal.
*ÁELEX is a leading Ghanaian firm with expertise and institutional depth in Transportation. Our Maritime practice has evolved with develo-
pments in the sector, gaining us invaluable experience and capabilities. We offer various shipping services from ship finance to corporate,
regulatory compliance and litigation.
Members of our Maritime team are located in Lagos and Port Harcourt in Nigeria and Accra, Ghana with an aggregate of over 30 years
experience in maritime law. We act as counsel to ship-owners, P&I clubs, charterers, operators of ships and other offshore assets, insurance
companies, financial institutions, oil and gas companies, port owners and operators.
ÁELEX advises on ship and mortgage registration, asset financing for off shore oil and gas operations, ship registration, ship finance and lease
transactions. Our expertise also extends to claims arising from charter parties, collision, cargo and demurrage, both at arbitration and in the
courts of law in Nigeria and Ghana. We are regularly instructed to undertake subrogated claims on behalf of insurers, arrest and release of
vessels as well as negotiating the settlement of claims.
128
SHIP ARREST IN GIBRALTAR
By Christian C. Hernandez*
ISOLAS
christian.hernandez@isolas.gi
www.gibraltarlawyers.com
Portland House, Glacis Road PO Box 204 Gibraltar
Tel: +350 20078363
Fax: +350 20078990

Arresting a ship in Gibraltar is a relatively simple and straight forward process. In the first instance a
Claim Form should be prepared with either brief particulars (which is just a brief summary) or Particu-
lars of Claim together with a request for service of the Claim Form in rem, a declaration in support of
the claim and a solicitor’s undertaking to pay the Admiralty Marshal’s costs and expenses.

The Supreme Court of Gibraltar has jurisdiction to try admiralty matters by virtue of the Colonial
Courts of Admiralty Act 1890 and the Admiralty Jurisdiction (Gibraltar) Order 1997. The same provide
the Supreme Court of Gibraltar which is a Colonial Court of Admiralty, shall have the like admiralty
jurisdiction as that of the high court of England as defined by section 20 of the Supreme Court Act
1981. Give effect to the convention relating to the arrest of sea going ships, Brussels 1952.

No.

It is possible to obtain a Freezing order over a defendant’s assets where the Gibraltar Court has in per-
sonam jurisdiction. In such cases if the Defendant has a vessel within Gibraltar territorial waters, the
freezing Order can be enforced against the vessel thus preventing her departure from the jurisdiction.
In Gibraltar ships can only be arrested pursuant to a claim which gives rise to a right of action in rem.
These are:
(a) any claim to the possession or ownership of a ship or the ownership of any share therein.
(b) any question arising between the co-owners of a ship as to the possession, employment or ear-
ning of that ship.
(c) any claim in respect of a mortgage of or charge on a ship or any share therein.
(e) any claim for damage done by a ship. (maritime lien)
(f) any claim for loss of life or personal injury in respect of a defect in a ship, neglect or default in na-
vigation, management of the ship, loading, carriage or discharge of goods, embarkation, carriage or
disembarkation of passengers,
(g) any claim for loss or for damage to goods carried in a ship.
(h) any claim arising out of an agreement relating to the carriage of goods in a ship or the use or hire
of a ship.
(i) any claim in the nature of salvage (including aircraft). (maritime lien)
(j) any claim in the nature of towage in respect of a ship or an aircraft.
(k) any claim in the nature of pilotage in respect of a ship or an aircraft.
(l) any claim in respect of goods or materials supplied to a ship for her operation or maintenance.
(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or dues.
(n) any claim by the master or a member of the crew of a ship for wages. (maritime lien)
(o) any claim by a master, shipper, or charterer or agent in respect of disbursements made on account
of a ship.
(p) any claim arising out of an act which is or is claimed to be a general average act.
(q) any claim arising out of bottomry. (maritime lien)
129
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been
carried, or have been attempted to be carried in a ship, or for the restoration of a ship or any such
goods after seizure or for droits of admiralty.”

Yes.

Save for claims which give rise to a maritime lien where the ship can be arrested irrespective of the
debtor all other actions in all other actions that give rise to an in rem a ship can only be arrested if
when the cause of action arose the person who would be liable on a claim in an action in personam
was other the owner or the Charterer or in possession or in control of the ship.
True sister ships can be arrested in Gibraltar. For vessels to be deemed to be sister ships they must be
owned by the same entity be it a company or a physical person. With the increasing use of one ship
owning companies it is increasingly rare to encounter sister ships. It is not possible to arrest associated
ships in Gibraltar.

Bareboat chartered vessels can be arrested. Time-charted vessels cannot be arrested.

No counter-security is needed in order to arrest a vessel in Gibraltar. However a deposit of between
£10,000 and £20,000 must be placed with the Admiralty Marshal at the time of the arrest in order to
cover the expenses of the arrest together with a solicitor’s undertaking in respect of the cost of the
arrest. If the arrest is successful all costs are normally recovered from the owners of the vessel or in
default from the process of sale of the vessel.
11.Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?
An arrest for a maritime lien can be effected irrespective of who the owner of the vessel is and in
circumstances whether the vessel may have been sold after the claim arose. An arrest for a maritime
claim not being in the nature of a lien can only be carried out in the circumstances set out at 7 above.
Gibraltar recognises maritime liens in respect of claim for crew wages, salvage, masters wages and
disbursements, damage done by a vessel and bottomry and respondentia.
law firm?
Provided full instructions with the supporting documents are received enabling us to prepare a gene-
ral endorsement of the claim form together with the declaration in support, an arrest may be carried
within hours of receiving instructions. The Admiralty marshal is on call 24 hours a day 365 days a year
and therefore in urgent cases a ship may be arrested at almost any time.
No Powers of Attorney are needed in Gibraltar in order to arrest a vessel. As regards documentation
in support of the claim, in order to enable the solicitor to prepare the claim form and declaration in
support of the arrest, documentation should be provided setting out the nature of the claim, the
name of the ship to be arrested and its port of registry.
For the purposes of the arrest no original documents need be sent. Provided we receive pdf copies
of all documents we can prepare the original claim form and original declaration to be filed in Court.
However original documents or certified copies of the same should follow as soon as reasonably
practical.
Once the vessel has been arrested pursuant to an in rem claim, the courts will accept jurisdiction to
130
hear the merits of that in rem claim. However it might be possible for a party to seek to stay the pro-
ceedings in Gibraltar and the hearing of the merits of the case if there is a foreign jurisdiction clause
that the parties have previously agreed.

In order to have ship released from an arrest one must either put up security or satisfy the claim in
respect of which the arrest has been made.

The type of security which needs to be put in place for the release is either, a cash deposit, a letter from
a P & I Club or a guarantee from a first class bank.

Yes .

Typically they are.

Once security is put up or the owner of the ship as satisfied the claim, a ship can be released almost
immediately.

If a ship owner would like to contest an arrest, then he must file an acknowledgement of service of the
claim within 14 days of the claim form being served on them and file a defence to the claim within 28
days of the date of service of the particulars of claim.
on the merits?
As discussed previously a claim form setting out the details of the claim has to be filed at the time the
arrest documentation is lodged. Once the claim form is lodged the Defendant will have 14 days in
which to acknowledge service and a a maximum of 28 days in which to file the defence.

Although it is possible to claim wrongful arrest in Gibraltar it is extremely rare for this to happen given
that the parties would have to prove that the arrested party has acted in bad faith or has been grossly
negligent in carrying out the arrest.
Gibraltar law as English law recognises the principal of separate legal entities. As such, instances of
piercing the corporate veil are extremely rare and, and in practice, will only happen in cases where
there are allegations of fraud.
In Gibraltar ships may be sold and then pendente lite. Although in theory this can be done at any
point after the arrest, given the fact that the Court will only grant such an application for very good
reason and in instances where there is a real risk that the vessel will seriously diminish in value during
the arrest, such applications will only be made in instances where it is clear that the Defendant does
not intend to post security and the cost of arrest are significant.
*Christian is a Partner at ISOLAS, the oldest and one of the largest law firms in Gibraltar. He is acknowledged as a leading lawyer in
Gibraltar in admiralty and shipping law. Christian is involved in the majority of shipping cases in Gibraltar and has been named as a
leading individual by Chambers and Partners, the European Legal 500 and Global Counsel 3000 amongst others. His clients include
the ITF, P&I Clubs, banks and shipowners.
What they say about Christian: “He is noted for expertise in non-contentious and disputes work in the admiralty area.” CHAMBERS &
PARTNERS 2007 “Hernandez is well known for his expertise in ship arrest and has a strong track record for his handling of shipping
cases.” THE LEGAL 500, 2007 “Isolas remains a leading player in the shipping sector under the leadership of Christian Hernandez.”
THE LEGAL 500, 2008 “Christian Hernandez, head of the firm’s admiralty and shipping team, is ‘undoubtedly one of the heavyweights
in the sector THE LEGAL 500, 2009.
131
SHIP ARREST IN GREECE
By Christos Th. Vardikos*
VARDIKOS & VARDIKOS
info@vardikos.com
www.vardikos.com
3 Mavromichali Street,
GR 106 79 Athens, Greece
Tel: + 30 210 3611505
Fax: + 30 210 3617848

The Greek legal system provides basically for two types of seizure of the assets of a debtor,
serving two different purposes, i.e. the provisional seizure, aiming to secure/safeguard a claim
(saisie¬conservatoire) and the executory seizure, being one of the initial stages of the procedure
for the enforcement of a title, leading to the public sale of the seized assets (saisie-execution).

As regards vessels, Greece has ratified the International Convention for the Unification of Cer-
tain Rules Relating to the Arrest of Seagoing Ships (10.05.1952) which was implemented in
Greece by Legislative Decree 4570/1966(the “Convention”).
One-member district courts enjoy general subject matter competence for provisional remedies.
An arrest may be ordered by Court judgment only, issued following summary proceedings ini-
tiated by the filing of the Claimants’ Petition. In circumstances of urgency, ex parte proceedings
may be conducted should the requested measures seek to secure a substantive right and the
indebt ness of the debtor is ostensible.
The sole oral hearing is based on a flexible procedural framework. This refers to both the autho-
rity of the judge for relying on facts not submitted by the parties and the free admissibility of any
available means of proof. Evidence must be brought during this hearing. The decision to issue
a provisional remedy, or to reject an application, is a judicial decision and may not be attacked
by any methods of review.
According to Article 692/4 of the Code of Civil Procedure, provisional remedies must not lead
to the full satisfaction of the substantive right which they seek to secure or preserve. An arrest
judgment may be given provided that Petitioners would be able to show to the satisfaction of
the Court, a prima facie founded and valid claim against the vessels’ owners and the occurrence
of a situation of urgency or of imminent danger justifying the necessity for granting the reques-
ted arrest.

A. Under the Private Maritime Law Code
I. The transfer of ownership in lieu of security (fiduciary transfer of ownership).
II. Hypothecation of the ship.
B. The Ship Mortgage (preferred Mortgage under Legal Decree 3899/1958
C. The Preferred Mortgage under the Legal Decree 2687/1953.

a. Provisional seizure, aiming to secure/safeguard a claim (saisie-conservatoire), by any party
alleging to have a claim against the owners of a specific vessel may apply for her arrest as Petitio-
ner. Interim Restraining Order: It is a standard practice that the Petition also contains a request
for an Interim Order for the temporary prohibition of the vessel’s sailing If the ship under arrest
is flying the Greek flag the Interim Order not only prohibits the vessel’s sailing but also prohibits
any change to her legal status. The Interim Restraining Order is valid until the hearing date and
subject to extension, on Petitioner’s request, until the issuance of the judgment on the arrest
Petition An Interim Order or an arrest Judgment become effective as from their notification,
by way of service of an official copy thereof upon Respondents as well as upon the competent
Port Authorities for entry into the appropriate Books kept by them. The main effect of the en-
forcement is the prevention of the vessel’s sailing. Furthermore and to the extent Greek law
132
would apply, any disposal of the arrested vessel is forbidden and if effected in breach of such
prohibition, will be nul and void towards the arrestor and for the amount for which the arrest
was ordered; disposal is likewise nul and void towards third parties as well, if effected after the
entry of the arrest Order or Judgment into the Arrest Book of the Port of the ship’s Registry.
An arrest effected as aforestated is provisionally valid i.e. until a final judgment on the merits is
issued against the arrestor or a like judgment, issued in the arrestor’s favor, has been enforced.
b. Executory seizure, being one of the initial stages of the procedure for the enforcement of a
title, leading to the public sale of the seized assets (saisie-execution).

Arrest can be sought for claims of any type and nature, be it conditional or subject to time terms,
but where the Convention applies, an arrest cannot be ordered for claims other than maritime
as defined in Art. 1.1 of the Convention.

Arrest of ships is subject to the regime of the Convention where the latter is applicable i.e. to ves-
sels flying the flag of another contracting State calling at a Greek port and for maritime claims
only as the latter are defined by the Convention, otherwise, the general provisions of domestic
law shall apply.- In both cases the procedure to follow is identical.
As regards Greek flag vessels their arrest can be sought and ordered even if they are not physi-
cally present within the jurisdiction of the Court with which the Petition is filed. The respective
arrest judgment, being served as aforementioned, will cause the legal prohibition of any dispo-
sal of the vessel; the vessel’s physical arrest may be then effected at any time within the jurisdic-
tion of any Greek Court by virtue of the same judgment. Furthermore and insofar as Greek law
is applicable, in case the ownership of the vessel has been transferred by the original debtor,
arrest of the same vessel may be sought and possibly ordered against her new owner.

Actions in rem against the vessel only are not provided for by Greek law. Therefore, the Petition
should be filed anyway against her registered owners, even in case the main liability for the
claim lies on third parties such as the vessel’s operators and possibly other parties having control
over the vessel.
Under Greek law two ships are regarded as sister-ships if owned by the same person (or body
corporate) and sister-ship arrests may be effected in Greece in limited circumstances.

The Court has the power to order Petitioners to provide counter security by way of Bank gua-
rantee; however in practice such counter security is rarely ordered, although frequently deman-
ded by Respondents.
Greece did not ratify the 1926 Convention. The Greek Code of Private Maritime Law however
(Arts.205-209) has been influenced up to a point by that convention. Further,the administrative
acts by which ships are capitals as foreign registered (those ships form the bulk of the Greek
merchant fleet )stated that the maritime liens, included in Art.205 para. 1 of the Code of Private
Maritime Law take priority over a preferred maritime mortgage.
The Supreme Court of Greece (Areios Pagos)in its decisions (913/1975,229/1983 (plenary) and
1055/1983 )held that Art.2 of the 1926 Convention cited by the acts above was to be dealt with
as a fact.Thus,the party€ to the proceedings asserting such a maritime lien had also to prove the
existence and the content of the maritime liens which took priority over a preferred mortgage.
your law firm?
Upon receipt of instructions we may act all over Greece (through our network of associated
offices) within the same day. Court and related costs are in the region of Euro 250-300 including
Bailiff’s charges for the required notifications. The respective lawyer’s charges depend much on
the urgency factor, the complexity of the issues involved, the work done and the time spent in
initiating and conducting the arrest proceedings.
133
Attorneys are presumed to have the authority to act therefore the presentation of a Power of
Attorney is not needed, unless this authority is challenged by the adverse party.
Submissions along with supporting documents, translated into Greek and comments on the
witnesses’ depositions are filed within 3 working days from the hearing. Supporting documen-
tation needs to be notarized and apostilled, although simple copies may be used during the
interim restraining order.
Jurisdiction of a Greek Court to decide on the subject merits is not created by the arrest itself.
However and unless otherwise provided for by international conventions ratified by Greece,
the presence of a vessel within the jurisdiction of a Greek Court, not competent in principle to
decide on the merits, would create jurisdiction of this Court to so decide (forum rei sitae), for
as long as the vessel is still within its jurisdiction. The jurisdiction so founded may, however,
be affected by certain jurisdiction clauses or arbitration agreements. Article 905 of the Code
of Civil Procedure provides for the enforcement of foreign judgments in Greece. Under Article
905, a civil judgment issued by a foreign court may be enforced in Greece if it has previously
been declared executable by a decision of a proper Greek court. Article 906 of the Code of Civil
Procedure provides that foreign arbitration awards may be enforced in Greece if provisions of
Article 903 of the Code are met.

Counter arrest or filing of a separate new petition.

The court orders the placement of security in the form of a bank guarantee issued by an appro-
ved financial institution in Greece. P&I Letters are accepted on the premises that the other party
accepts them.

In general, the petition to arrest a vessel is made for an amount covering the costs and the inter-
ests. Therefore the security necessarily covers them also.

P&I Letters are accepted on the premises that the other party accepts them.

The procedure is rather quick from the moment the bank guarantee is filed with Court that
ordered the arrest.

The arrest can be contested with the filling of a counter petition based on various grounds
(such as unlawful act, misrepresentation etc).
Unless an action on the merits of the claim has been already brought, the arresting party should
bring such action in the competent Court within such time as ordered by the Court, otherwise
within 30 days from the service of the arrest judgment on Respondents, failing which the arrest
is lifted ipso jure.

Following substantive proceedings against an arresting party, the latter may be held liable for
damages resulting from an arrest or a guarantee lodged, only if Claimants would be able to
prove to the satisfaction of the Court that the arresting party knew, or by gross negligence ig-
nored, that its claim secured as above, did not exist. Furthermore such liability is conditional to
a final and irrevocable judgment whereby the action of the arresting party on the merits of its
134
claim is dismissed for it being unfounded.- In view of such requirements it is not an easy task for
Claimants to succeed in his action for damages caused by a wrongful arrest.
It has been held by the Greek courts that the corporate veil may be pierced to reveal the bene-
ficial ownership only where there exists an in concreto reason for doing so. In lifting the corpo-
rate veil, the Greek courts have traditionally considered two criteria.
A.The criterion of “the effective control” (of the company)
B. The criterion of the “use of intermediary persons” in respect of shareholding or management.
Under Greek law, the vessel remains in the custody of the ship-owner or the person who, at the
time of the arrest, may be in possession of the ship. It is possible however, upon application to
the Court for the arrestor to become the custodian of the ship in which case this party would
have to bear the respective costs which are quite substantial.
The disposal of the arrested ship may only be effected after an irrevocable judgment has been
issued in the main action (which may run in parallel with or follow the arrest proceedings) on
the merits of the case. Such disposal may only take place in a public auction conducted by a
Notary.
The “Forced Auction Procedure”. This procedure is governed by specific provisions contained in
the Civil Procedure Code. A Notary who is specifically appointed by virtue of a Court order exe-
cutes the forced sale. The sale has the form of an open public auction whereby the interested
parties may submit their bids on the basis of a schedule prepared by a Court bailiff. No judicial
sale can take place within the context of a ship arrest procedure, as the latter may only serve as
a means of preservation, not a means of satisfaction, of a claim.
There are cases however when, in the context of arrest proceedings, the property arrested may
be subject to deterioration and at the same time the cost for preserving it, is disproportionately
high having regard to the level of claim. In such instances the Court, may, after a summary hea-
ring, order its disposal. The auction proceeds shall consequently substitute the arrested property
and shall be deposited with the Loans & Deposits Fund, pending the issue of an irrevocable jud-
gment on the merits of the claim. In shipping disputes, such a procedure may be encountered
in cases where perishable cargoes have been arrested and the cost of preserving same until the
issue of an irrevocable judgment is excessive. However it should be noted that such sale orders
are granted in these very limited circumstances.
*Christos Vardikos is an Athens based Attorney at law and the Honorary Consul for the Commonwealth of Dominica in the Hellenic Republic,
acting also a Special Advisor / Maritime Affairs to the Honorable Prime Minister of the Commonwealth of Dominica.
Prior appointment to his current position was the Honorary Consul for the Republic of the Marshall Islands in Greece.
He is a Member of the Athens Bar Association (Attorney at Law - Accredited to the Supreme Court) and has published extensively articles on
various aspects of Greek Law:
· Immigration & Naturalization / Greek Chapter, Kluwer.

· Iow Tax transactions / Greek Chapter, Kluwer.
· Immigration Issues / Nomiki Vivliothiki - Invest in Greece Review.
· Ship Arrest Issues / Nomiki Vivliothiki - Invest in Greece Review.
· Activities for Utilizing Low Tax Jurisdictions/ Nomiki Vivliothiki - Invest in Greece Review.
He has presented papers in more than twenty international conferences for topics related of Immigration, Maritime Law and Intellectual Proper-
ty. He manages the boutique law firm Vardikos & Vardikos with associated offices in Cyprus and Dominica (authorized government agent for
the Citizenship by Investment Program). Inter alia the law firm specializes in Shipping, Intellectual Property, Immigration Law, Debts Collections
and Corporate Services in all major jurisdictions.
135
SHIP ARREST IN HONG KONG
By Chris Potts*
CRUMP & CO INTERNATIONAL MARITIME & COMMERCIAL LAWYERS
chris.potts@crumpslaw.com
www.crump-co.com.hk
2009 Tower 1, Lippo Centre, Admiralty,
Hong Kong, China
Tel: +2537 7000
Fax: +2804 6615

Hong Kong is a Special Administration Region (SAR) of the People’s Republic of China (PRC). As
such it has a separate and distinct legal system from that of the PRC. Hong Kong has a common
law system of justice which developed during the years when it was a British colony.
A ship - or one of its sister ships - may be arrested where:
-a claimant’s cause of action carries with it a right of arrest;
-an in rem writ has been issued;
-the ship is available in Hong Kong; and
-no caveat against arrest has been entered.

The Brussels Convention 1952, as enacted in Hong Kong legislation.

No

It is possible to get an injunction. This is more difficult and expensive than arresting the ship. Civil
Justice Reforms were implemented in April 2009. Innovations in the regime have put interim
relief, similar to saisie, into effect. The new reforms have opened up Hong Kong to claims where
injunctions are available to provide support and security for foreign proceedings.

The High Court Ordinance lists types of maritime claim for which a vessel may be arrested. They
include:
- possession or ownership of, or mortgage on, a ship;
- loss of life or personal injury because of a defect in a ship;
- damage done by or to a ship;
- loss or damage to goods carried by ship and other claims relating to carriage of goods by ship;
- use or hire of a ship;
- salvage, towage and pilotage;
- goods and materials supplied to a ship;
- construction or repair of a ship;
- wages owed to a ship’s master or crew;
- acts of general average;
- bottomry; or
- collisions.
Arrest is impossible in some cases (e.g. in relation to claims for insurance premiums). The purpo-
se of an arrest is to obtain security in respect of a court judgment in that action. The court should
not allow the arrest of ships for other purposes. In the 2014 case the “KOMBOS” [2014] HKCU
1698, the court upheld the arrest of a vessel even though the Plaintiff had already obtained an
arbitration award. The effect of this judgment is significant as it means that vessels can still be
arrested under the in rem jurisdiction of the court so long as the judgment or arbitration award
in personam remains outstanding. The court’s jurisdiction can be invoked to secure claims in
arbitration where the law of the place governing the arbitration permits this.
136
An arrest intended to force the party affected to agree to a foreign jurisdiction is outside the
purpose of an action in rem. Where a plaintiff has already commenced an action in a foreign
jurisdiction, a duplicate action in rem commenced in Hong Kong will be considered vexatious
and is liable to be set aside.

Usually, vessels under any flag may be arrested. However, if the vessel belongs to a port of a sta-
te having a consulate in Hong Kong and the arrest is for possession of the ship or in respect of
outstanding crew wages, a notice of action must be sent to the consul and a copy of the notice
annexed to the affidavit to lead warrant.
Hong Kong is a Special Administrative Region of the PRC and this status has given rise to ques-
tions of whether legal claims can be brought in the Hong Kong courts against entities which
form a part of the PRC Government and whether foreign states are entitled to claim immunity
from legal claims brought in Hong Kong courts.
In Intraline Resources Snd Bhd v The Owners of the Ship or Vessel “Hua Tian Long”, it was
held that the Guangdong Salvage Bureau (GSB), which is an entity of the PRC, could rely on
“Crown immunity” after their derrick barge, “Hua Tian Long”, was arrested for an alleged failure
to perform a charterparty. The doctrine of Crown Immunity developed whilst Hong Kong was a
British colony and meant that the Crown was immune from the processes of its courts. In 1997,
the PRC became the sovereign so organs of the PRC can claim immunity in response to claims
against them.
In FG Hemisphere v Democratic Republic of Congo two arbitral awards were obtained against
the Democratic Republic of Congo (“the DRC”) because it defaulted on its obligations in relation
to a contract to build a hydroelectric facility.
The DRC claimed state immunity and the Hong Kong Court of Final Appeal sought a ruling
by the National People’s Congress (NPC) of the PRC under provisions of the Basic Law. The
NPC Standing Committee unanimously confirmed that the doctrine of absolute state immunity
applies in Hong Kong, as it does in Mainland China. The principle of restrictive immunity no
longer applies.

Yes, subject to Sovereign and Crown immunity.
A plaintiff may proceed in rem against any ships under the same beneficial ownership. The writ
should be issued against all of the ships. It must subsequently be amended by striking out all
names except that of the ship on which the writ has been served or against which a warrant of
arrest has been issued.

Bareboat-chartered vessels can be arrested, but not time-chartered vessels.

No. In limited circumstances including where the plaintiff is foreign, the defendant can apply to
the court for an order to compel the plaintiff to give security for the defendant’s litigation costs,
subject to the court’s discretion.
Maritime claims depend on the ownership of the ship. A ship can only be arrested if the owner
at the time of the cause of action is still the owner at the time of arrest. Maritime liens can be
enforced regardless of ownership. An identical arrest procedure applies in both cases.
12. Does the Hong Kong SAR recognise maritime liens? Under which International Convention, if any?
Hong Kong recognizes maritime liens arising in connection with a number of specified claims
such as claims for:
-damage done by a ship;
-salvage rendered to a ship;
-wages owed to a master or seaman;
-masters’ disbursements; and
-bottomry.
137
your law firm?
Arrest documents can be issued within 48 hours of receiving the file. Subject to certain diffi-
culties, documents can be issued and executed on emergency application to a duty judge out
of normal hours. This can be achieved by solicitors undertaking to issue a writ and swear an
affidavit in support of the warrant at the first available opportunity when the court re-opens.
14. Do you need to provide a Power of Attorney, or any other documents in respect of the claim
to the Court?
No but solicitor’s firms in Hong Kong require a formal written retainer before advising or acting
on instructions on behalf of a client.
There are no specific requirements in the form of claim documents, apart from minimum copy
documents to be exhibited to the affidavit as are required to establish a prima facie right to
arrest.
According to Order 75/5/14 of the Rules of the High Court, there is no prescribed or practice
form when it comes to the affidavit. The affidavit must state certain specified details, such as
the nature of the claim, the parties’ details and the name of the ship. An outline of the form is
provided.
The claimant’s solicitor will apply to issue a warrant of arrest, supported by an affidavit to lead
warrant.
The caveat book must be searched for caveats against arrest. A written application must be
made to the registrar for leave to search; this can be done by letter. The warrant, once issued, is
filed with the bailiff, together with a request to execute the warrant and an undertaking to pay
the costs of arrest. The affidavit consists of a written statement of facts and belief, with the sour-
ces and grounds thereof, and is made under oath. It constitutes the only evidential requirement
for arrest. An undertaking to pay the Bailiff’s expenses must also be submitted.
Documents cannot be filed electronically. Notarisation and / or apostille certification is not re-
quired but if any documents need to be translated then these must be certified by a notary.
The court will usually accept jurisdiction. If grounds exist for a forum non conveniens appli-
cation, concluding in particular where the claim arises out of a contract that has an exclusive
foreign jurisdiction clause, the proceedings may be stayed in favour of the relevant foreign
jurisdiction.
The court will not insist on hearing an entire action commenced by the issuance of a writ
followed by an arrest. The parties can agree an alternative jurisdiction. For example, this fre-
quently happens in cases involving collisions in international waters.

This is done by filing a Praecipe demanding the court to issue a Warrant of Release. An Under-
taking issued by a solicitors firm undertaking to pay all charges and expenses incurred by the
Chief Bailiff is required to be filed at the same time. The agreement of the arresting party and
all caveators must be obtained. This is normally done by the parties signing their names on the
Warrant of Release expressing their consent to release the ship from arrest.

The party seeking release of the ship should obtain the consent of the arresting party (and the
caveators, if any) to the issue of a release by giving bail to his/their satisfaction.
The arresting party may agree to accept a P&I Club LOU or a guarantee issued by a bank or
insurance company on wording acceptable to him. The court does not have power to intervene
in negotiations over private security arrangements but it is always open to the party seeking
release of the ship to provide bail or make payment into court to security the release of the ship
under arrest.

The arresting party is entitled to sufficient security to cover the amount of his claim with interest
and costs.
138
No, not without the consent of the arresting party.

Within a few hours.
The party seeking release of the vessel may make an application to court on the basis that the
court does not have jurisdiction to issue the Warrant of Arrest. Such application is usually made
on grounds that the party seeking arrest has acted in bad faith or in a grossly negligent manner
and that he had failed to disclose material facts known to him at the time the affidavit leading
to the issue of a warranty of arrest was sworn.
Although a writ may be issued earlier than an application for a warrant of arrest, service of the
writ will take place when the vessel is in Hong Kong jurisdiction. The vessel is then arrested. The
defendant has 14 days to acknowledge service and another 14 days to file a defence.

Whether or not a caveat has been entered, the court’s test for ordering an inquiry into dama-
ges for wrongful arrest is whether the action was so unwarrantedly brought as to imply malice
or gross negligence on the part of the plaintiff. The defendant must establish malice or gross
negligence before the plaintiff can be held liable for damages. Damages can also be recovered
where an arrest has been unduly continued.
The principle of separate corporate personality is a cornerstone of Hong Kong company law.
The court will lift the corporate veil where the protection given by incorporation under the law
is being abused. The grounds for lifting the corporate veil are where separate corporate perso-
nality is used to evade an existing legal obligation or practice fraud or deception.
The court will not order the appraisal and sale of a ship while the litigation is pending except
for good reason, regardless of whether the action is defended. Where the action is defended
and the defendants oppose the making of such an order, the court examines more critically the
question of whether there is good reason to make the order.
The question of whether an order for the appraisal and sale of a ship under arrest in an action in
rem should be made while litigation is pending normally arises only where there is a default of
acknowledgment of service or defence, in which case such an order is commonly made on the
plaintiff’s application on the grounds that the security for the plaintiff’s claim would otherwise
be diminished by the continuing costs of maintaining the arrest, to the disadvantage of all inter-
ested parties (including the defendant, if it has a residual interest).
Where the defendant to an action in rem against a ship appears with the intention of defending
the action, it almost invariably obtains the ship’s release by providing bail or other security for
the claim that is satisfactory to the plaintiffs.
The Hong Kong Court will readily order sales of vessels Pendente Lite, especially in Crew and /
or Mortgagee actions for which Hong Kong is a recognized centre in Asia.
*Christopher Andrew Potts is a partner at Crump & Co since 1981, having worked formerly at Norton Rose Botterell & Roche andCrossman
Block & Keith. He acts before the jurisdictions of Hong Kong and England & Wales.
His practice focuses on Aviation; Shipping; Transport; Insurance; Claims and Recoveries; Carriage of Passengers and Goods; CasualtyInves-
tigation; Personal Injury; Pleasure Craft; Risk Management; Litigation; Dispute Resolution.
Chris has been devising strategies to resolve complex, often high profile cases on behalf of clients and has special interests in hands-on
involvement in case handling and practice management.
He has published numerous works or articles in the Hong Kong Correspondent, Lloyd’s Maritime & Commercial Law Quarterly, DMC’sShipping
and Insurance Law Case Notes. Chris is a Member of the Hong Kong Law Society Insurance Law Committee.
139
SHIP ARREST IN ICELAND
By Einar Baldvin Axelsson*
LOGOS LEGAL SERVICES
einarbaldvin@logos.is
www.logos.is
Efstaleiti 5, 103 Reykjavík, Iceland
Tel: +354 5400300
Fax: +354 5400301

An arrest may generally be instituted in Iceland if the ship is situated in Iceland at the time of the
arrest. The request for arrest must be submitted in writing to the relevant District Magistrate’s
office. It must contain the information of the facts necessary to enable the District Magistrate to
consider the matter and must be supported by copies of the documents on which the claimant
relies on to proof the existence of the claim.
In practice, the District Magistrate performing the arrest will usually go on board the ship and
grant the order for the arrest by obtaining the certificate of the registry, certificate of seawor-
thiness and other ship’s certificates from the master, which the magistrate will keep in his
possession during the arrest procedure.
The shipowner will usually keep the possession of the ship and bear the responsibility and
costs of maintenance of the vessel during the arrest procedure.
Iceland is not party to the International Convention on the Arrest of Ship (Geneva, 1999).
The International Conventions which are in some part applicable in Iceland when ship arrest
is at issue are:
i. The Lugano Convention on jurisdiction and the enforcement of judgments. in civil and com-
mercial matters (1988), as Artice 54A provides jurisdiction for selected countries, inter alia Ice-
land, in maritime matters, including claims in respect of a mortgage or hypothecation of an
arrested ship.
ii. The Convention on future multilateral cooperation in North-East Atlantic fisheries (NEAFC)
(1980). The convention provides that ships committing illegal fisheries shall be arrested.
iii. Convention on future multilateral cooperation in the Northwest Atlantic Fisheries. The con-
vention provides that ships committing illegal fisheries shall be arrested.
Icelandic law does not contain specific rules on arrest of ships. The arrest of ships is thus regu-
lated by Act No. 31/1990 on Seizure, Injunctions etc.
No, in practice the arrest of a ship is the way to guarantee payment of claim against the shi-
powner under Icelandic law.
Generally only property belonging to the defendant (with the exception of claims secured by
maritime lien) can be arrested in order to secure a payment of claim if the claim cannot imme-
diately be enforced by an attachment and it is probable that without the arrest, the likelihood
of securing the claim will decrease or become more difficult. Therefore, a ship can be arrested
in respect of a monetary claim against the owner of the ship. It is not a condition for the arrest
that the claimant proves his claim. However, the request for the arrest will be dismissed by the
District Magistrate (Icelandic: sýslumaður) if the evidence provided on the claim shows that the
claimant is not the lawful owner of the rights he seeks to secure by the arrest.
140
Icelandic rules on arrest of ships described herein apply irrespective of the ship’s flag. It is per-
mitted to request arrest from the District Magistrate of the district where the defendant’s ship
will be at the time of the arrest, irrespectively of her flag.
Arrest can generally only be performed in respect of ships owned by the debtor of the claim
which the arrest is to guarantee the payment of. However, in case of claims secured by mariti-
me lien, arrest can be performed irrespectively of the debtor.
Arrest in respect of maritime lien can only be made in the ship which the lien is made. However,
arrest for other claims than those under maritime lien may be performed in respect of other
assets of the defendant which fall under the jurisdiction of the respective District Magistrate.
A ship can under Icelandic law only be arrested in respect of a claim against the party leasing
the ship (under a Bareboat or Time-Chartered arrangement) if the claim is made under a ma-
ritime lien. For other claims arrest can only be made in order to guarantee payment against
the shipowner.
A claimant will generally need to provide guarantee in order to have the arrest performed. It
is up to the District Magistrate handling the arrest application’ discretion whether a security is
needed or not and the form and amount of such security.
In determining the guarantee’s amount the District Magistrate shall mainly take into account
to what extent the arrest affects the functions of the defendant in terms of doing him harm,
whether it is likely that the arrest or request for the arrest will harm his credit status or his busi-
ness interests and whether he has a chance to make remarks about the validity of the claimant’s
claim and the arrest. The cost that the defendant might later have to endure through court
procedure due to the arrest should also be taken into account.
If security is required it should be in the form of money or in a comparable form. A bank gua-
rantee is usually required.
The District Magistrate can, by demand of the claimant, arrest a ship without any security
being submitted if one of the following conditions is fulfilled:
• The arrest is demanded pursuant to a debenture, a draft or a cheque and the defendant
does not protest the claim;
• the defendant waives his right for a security in front of the District Magistrate;
• the defendant acknowledges the claim as being valid in front of the District Magistrate or
court and that conditions for an arrest are prevailing;
• a judgment has been rendered regarding the claimant’s claim, but the enforcement period
has not yet come to an end; or
• the claimant’s claim is in other terms so that the magistrate considers both it and the arrest
undoubtedly valid given the conditions prevailing.
A claim secured by a maritime lien may be enforced by means of arrest irrespective of the
shipowner’s identity while maritime claims can only be enforced by means of arrest if the deb-
tor is the shipowner. The following claims enjoy a maritime lien in the ship under Icelandic law:
• Wages or other payments due to the Master, Crew and other persons employed on board;
• claims for damages due to loss of life or personal injury in so far as such claims have arisen in
direct connection with the use of the ship;
• claims for damages due to damage properties in so far as the claim has arisen in a direct
connection with the use of the vessel and provided that such claim is not based on contract;
• salvage, compensation for removal of wrecks and general average contributions; and
• ship charges. This refers mainly to claims for port, canal and waterway dues and pilotage.
Icelandic courts recognise maritime liens under the Icelandic Maritime Act No. 34/1985. In
case of a claim secured by a maritime lien over a ship, she may be arrested despite being ow-
ned by a third party. Claims that are secured by a maritime lien under Article 197 of the
141
Icelandic Maritime Act No. 34/1985 are an exception as the only types of claims that may be
pursued “in rem” by way of arrest irrespective of the ship’s owner’s identity.
your law firm?
In theory the arrest procedure is supposed to be only a matter of hours or days. However, in
practice the arrest procedure can unfortunately stretch up to few days and even as long as
1-2 weeks.
Icelandic attorneys can generally submit claims on behalf of their clients on grounds of lawyer’s
power of attorney. There is thus no need to issue a special POA in respect of individual claims.
The request for arrest procedure shall be made in writing and shall state the identity of the
claimant and the defendant, the amount which the arrest is to secure payment of and the
grounds which the claimant bases its claim on. As regards supporting documents for the claim
the Act on Seizure, Injunctions etc. provides that the request for arrest shall be accompanied by
the documents on which the claimant supports his claims. It therefore varies which documen-
tation is necessary, e.g. in case of claim based on debenture a copy of the respective debenture
would generally suffice.
There are no rules on when the original documents are required and it is up to the District
Magistrate’s discretion whether to request originals or have copies suffice. Notarisation and/or
apostille is generally not necessary for arrest procedure under Icelandic law.
ted?
No, the courts will not accept jurisdiction on the substantive claim. In case the substantial claim
falls under the jurisdiction of a foreign court the claimant shall have the claim confirmed by the
respective foreign court.
A ship is released from arrest when the claimant receives payment of claim, if a confirmation
of an arrest is not submitted to Icelandic courts in time, or if a confirmation of an arrest is not
granted by the courts and the arrest set aside.
However, if confirmation of an arrest is declined by the District Courts and it set aside, the arrest
remains in effect for three weeks, until a time limit for appeal passes.
If the claimant neglects to submit a request for confirmation to Icelandic courts within the
applicable limitation period, the arrest is set aside when the limitation period has passed, after
either one or three weeks from the arrest, see question 23.
A shipowner may additionally prevent an arrest by providing an immediate guarantee.
No security is necessary for the release when an arrest ceases due to the general reasons
above. A shipowner’s guarantee to prevent an arrest is subject to similar rules as the claimant’s
counter-security, see question 10, and must be in cash or a similar form, e.g. a bank guarantee.
Yes, to prevent an arrest the shipowner’s guarantee must cover the full claim amount, inclu-
ding interests and costs.
No.
The shipowner will usually keep the possession of the ship under arrest, see question 1. After
the arrest ceases, legal restraints due to the arrest will usually be lifted by the District Magistrate
within a few days, although it might vary in relation to the reasons for the arrest ending or
being set aside.
142
Shipowner’s protest during arrest procedure do generally not stop the arrest. If the arrest has
not yet taken place and is being processed by the District Magistrate the Magistrate must upon
shipowner’s protest make an immediate decision on whether to proceed. Protests are usually
unsuccessful unless the shipowner proves that the request for arrest should have been dis-
missed ex officio or that the claimant’s claim is unfounded. The shipowner may only appeal a
Magistrate’s decision to proceed with the arrest to the District Courts if the claimant approves.
After ship arrest completion however, the shipowner may contest the arrest before Icelandic
courts in proceedings for confirmation of an arrest pursued by the claimant.
A confirmation of an arrest must be submitted to the Icelandic courts within one week from
the arrest together with the claim itself is it is subject to Icelandic law. If the claim is subject to a
foreign jurisdiction the claimant must within three weeks from the arrest pursue proceedings
on the merits in that jurisdiction and within the same three weeks pursue proceedings in Ice-
landic courts for the confirmation for the arrest. Otherwise, the defendant can request that the
arrest be set aside.
Yes, if the claim for which the arrest was granted is found to be non-existent or unjustified in
other ways, the claimant must compensate the shipowner for all his loss suffered, including
damages for loss of amenities, and for the injury done to the shipowner’s professional reputa-
tion. The basis of liability in such cases is strict and not dependent upon proof of negligence
or other omission on his part. It is possible for the court to decide compensation based on the
facts of the case if the shipowner has suffered loss but cannot prove the quantum of his claim.
If an arrest turns out to be wrongful for reasons that occurred after the completion of the
arrest, the claimant has to compensate the shipowner only if it is presumed that he did not
own the claim for which the arrest was granted.
Icelandic Courts do generally not acknowledge the piercing and lifting of the corporate veil.
No, parties would generally have to await the outcome of a court case prior to selling a ship.
However, court ordered sale can be performed on grounds of lien in the ship, without prior
Court proceedings.
*LOGOS legal services has been providing legal services to the shipping and transport sector in Iceland and advising foreign clients on Icelan-
dic maritime law since the foundation of LOGOS in 1907. There has always been at least one partner at LOGOS who specialises in shipping
and transport law. As a result LOGOS has considerable experience in this field.
One of the partners of LOGOS, Einar Baldvin Axelsson, has a degree of Master of Laws (LL.M) in maritime law from the University of London.
Einar Baldvin is a teacher at the Reykjavík University in shipping and transport law and Chairman of the board of the Icelandic Maritime Society.
Einar Baldvin is a licensed broker for vessels. Einar Baldvin has been involved in number of arrests cases in Iceland, both for shipowners
and claimants.
LOGOS’s work in the shipping and transport sector includes all maritime and transport related matters, such as arrest, contract of carriage,
storage contracts, cargo claims, personal injury, salvage, general average, sale and purchase of new and second hand vessels, shipbuilding
contracts and charter party contracts.
143
SHIP ARREST IN INDIA
By V. K. Ramabhadran, Senior Advocate*
admlaw@vsnl.com
902, Dalamal Tower, Free Press Journal Marg,
Nariman Point, Mumbai-400 02, India
Tel: +91 22 2282 6575
(D): +91 40026575

(i)The Admiralty jurisdiction is exercised by the Coastal States in India under the Colonial
Courts of Admiralty (India) Act, 1891. The Arrest Convention, 1952 as well as Arrest Conven-
tion, 1999 would be considered for the purpose of ascertaining whether a particular claim
is a maritime claim.
(ii) Application for arrest of the ship is made ex-parte unless Caveat is filed against the arrest.
If the court is prima facie satisfied ship would be ordered to be arrested and generally the
quantum of security would be based on the best arguable case of the Claimant.
(iii) The ship would be released from arrest provided security in the form of Bank Guarantee
or cash deposit is made with the Registry. Ship could also be released from arrest if on an
application made on behalf of the ship; the Court holds that the arrest is not maintainable.
(iv) If the security is not furnished the Claimant is entitled to take steps to sell the ship. The
Court would order sale of the vessel through public auction after the ship is valued by a
professional surveyor. Once the ship is sold, the sale proceeds are deposited in Court. If the
sale proceeds are insufficient to satisfy the claim of all Claimants, the Court would decide the
priorities in which the sale proceeds would be distributed. The Statutory dues would have
the first priority followed by Wages of the crew and Master, Salvage, Mortgage and all other
claims would thereafter rank paripassu.
International Convention relating to Arrest of Seagoing Ships, 1952, and International Con-
vention of Arrest of Ships, 1999 would be considered by the Courts.
Claimant could seek arrest of a ship in execution of decree passed by any Superior Court of
any reciprocating territory of a foreign country against the Owner of the ship; subject howe-
ver the original claim was a maritime claim.
4. Are these alternatives e. g. saisie conservatoire or freezing order?
There is no separate freezing order other than arrest of a ship.
A ship could be arrested for the following claims:
a. Loss or damage caused by the operation of the ship.
b. Loss of life or personal injury occurring, whether on land or water, in direct connection
with the operation of the ship.
c. Any claim towards salvage.
d. Damage or threat of damage caused by the ship to the environment, coastline, measures
taken to prevent, minimize, or remove such damage including compensation for such damage.
e. Costs or expenses relating to the raising, removal, recovery, destruction of a ship which is
sunk, wrecked, stranded or abandoned.
f. Any agreement relating to the use or hire of the ship, whether contained in a charter party
or otherwise.
144
g. Any agreement relating to the carriage of goods or passengers on board the ship, whether
contained in a charter party or otherwise.
h. Loss or damage to or in connection with goods (including luggage) carried on board the ship.
i. General Average
j. Towage
k. Pilotage
l. Goods or materials, provisions, bunkers, equipment (including containers) supplied or ser-
vices rendered to the ship for its operation, management, preservation or maintenance.
m. Construction, reconstruction, repair, converting or equipping of the ship,
n. Port, canal, dock, harbour and other waterway dues and charges.
o. Wages and other sums due to the master, officers and other members of the ship’s com-
insurance contributions payable on their behalf.
p. Disbursements incurred on behalf of the ship or its owners.
q. Insurance premiums (including mutual insurance calls) in respect of the ship payable by or
on behalf of the shipowner or demise charterer.
r. Any commissions, brokerage or agency fees payable in respect of the ship by or on behalf
of the shipowner or demise charterer.
s. Any dispute as to ownership or possession of the ship
t. Any dispute between co-owners of the ship as to the employment or earnings of the ship.
u. A mortgage or a “hypotheque” or a charge of the same nature on the ship.
v. Any dispute arising out of a contract for the sale of the ship.
Yes
As long as the maritime claim arises or founded on commercial dealings between the parties,
ship could be arrested even if the ship belongs to Government or a Foreign State.
A sister ship i. e. any ship of the same owner could be arrested. Ships in associated owners-
hip cannot be arrested.
If the ship is on bareboat charter and if the Claimant asserts maritime claim against the dis-
ponent owner, the ship could be arrested nevertheless to enforce the maritime claim. So also
if the Claimant asserts maritime claim against the registered owner, ship could be arrested
even if it is on time charter.
Countersecurity is not required to be furnished at the time when the Court orders the arrest
of a ship. However, when an application is filed by the ship owner claiming that the arrest
is wrongful and that the owner is in a position to establish prime facie that as a result of the
order of arrest the owner has suffered monetary loss the Court in its discretion may direct the
Claimant to furnish countersecurity.
Yes. Maritime lien survives transfer of ownership of a ship while a maritime claim does not.
.
There is no domestic statute dealing with the concept of maritime lien. However, judicially it
has been held that the maritime lien extends only to the following five heads of claim.
a. Damage done by a ship
b. Salvage
c. Seamen’s wages
145
d. Master’s wages and disbursements
e. Bottomary and Respondentia
to your law firm?
Upon receipt of all documents (which includes the agreement/contract, all correspondence,
invoices, etc.), the draft of the proposed Plaint to be filed would be sent by e-mail within 24
hours. The Plaint has to be signed and verified by the person who is personally acquainted
with the facts of the case which needs to be attested before the Indian Consulate.
POA, Plaint, all documents in support of the claim, affidavit in support of the arrest and affi-
davit of undertaking to pay damages, have to be filed in the Court.
POA in original, Plaint and all original documents in support of the claim or photocopies
(if originals are not in the possession of the clients) would have to be filed in the Court.
Along with the Plaint a list of all documents and photocopies of all documents irrespective
of whether the same is in support of or adverse to the Claimants case would have to be filed.
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been
arrested?
Once the Court orders arrest of a ship, it retains jurisdiction to adjudicate the substantive
claim unless the order of arrest itself is vacated upon the Court being satisfied on an applica-
tion made on behalf of the owner of the ship that the arrest is not maintainable.The Court
would stay the suit if there exists a valid Arbitration agreement between the parties in which
event the security may or may not be retained.
Security in the form of Bank Guarantee or cash deposit needs to be made and the order for
release from the Court needs to be obtained thereafter. The original order of the Court relea-
sing the ship needs to be served upon the Port and Customs authorities.
Bank Guarantee or Pay Order issued by a nationalized Bank in favour of the Registry or cash
deposit.
Yes. If the order so directs.
20. Are P & I LOUs accepted as sufficient to lift the arrest?
P & I LOUs are not accepted unless consented by the Claimants.
Once security is furnished order for release of the ship could be obtained during Court wor-
king hours.
Order of arrest could be contested by filing a written application supported by an affidavit
stating the grounds for such contest.
23. Which period of time will be granted by the Courts in order for the Claimants to take
legal action on the merits?
It could take anywhere between two to four years to adjudicate the disputes on merits.
Yes. If the arrest is held to be wrongful, Claimant would be held liable for damages.
146
Yes. In order to pierce corporate veil one need to establish that ship owner has created mul-
tiple entities only in order to avoid legal liabilities.
Ship can be sold pendente lite. The process of sale could be completed within 3 to 6 months
from the date of the order of arrest. It could take longer period if either the order of arrest or
the order of sale is contested before the same Court or Superior Court.
*V. K. Ramabhadran is a designated Senior Advocate (equivalent of Q.C. in UK) by the High Court of Bombay. He has been practicing in
Maritime and Commercial law since 1983. He has successfully handled noteworthy Admiralty and Commercial cases and many of which have
been reported in the well known Law Reports. His paper on “Law of Arbitration in India” was published in the International Trade Law Quarterly.
As a legal consultant appointed by the International Maritime Organization (IMO), he submitted a comprehensive report to IMO suggesting
legal frame work to implement the Convention on Ballast Water in India. He has presented papers on Arbitration and Maritime matters in the
Seminars conducted by Shiparrested.com.
147
SHIP ARREST IN IRAQ
By Omar N. Omar*
AL TAMIMI AND COMPANY
o.omar@tamimi.com
www.tamimi.com
Flat 22, Building 106, District 213, Kindi Street,
Al Harithiya , PO Box 6051, Baghdad
Tel: +96415420558
Fax: +96415420598

Iraqi Transportation Law does not regulate the arrest of ships in specific. Therefore, the general
legal principles of precautionary attachment stipulated for in the Iraqi Law of Civil Procedures
will apply to the arrest of ships in Iraq. According to this Law, a creditor will have the right to
attach the assets of his debtor if he succeeds in proving that he has a credible claim against the
defendant and has a legitimate fear that the defendant might dissipate his assets. The arrest
application is normally submitted to the Court of First Instance. The court will consider the appli-
cation on a prima facie basis and the arrest order will be issued in chambers on an ex-parte basis.

Iraq is neither a party to the International Convention on the Arrest of Seagoing Ships of 1952
nor to the International Convention on the International Convention on the Arrest of Ships of
1999.

Ships may be arrested in Iraq in reliance to the Civil Procedures Law (Article 231) which regula-
tes conservatory attachment of assets in general (please see above question no. 1).

No. The saisie conservatoire procedure will apply to the arrest of ships in Iraq.

In general, a ship can be arrested for any claim which the claimant has against the owner of the
ship or the ship, provided the claim is proven, on the face of things, to be serious and grounded.

Yes. A ship anchored within the Iraqi territorial waters can be arrested irrespective of the flag
she is flying.

In general, a ship can be arrested for any claim which the claimant has against her current
owner provided that the claim is proven, on the face of things, to be serious and grounded.
However, in certain circumstances especially where the claim is secured by a maritime lien,
it could be argued in court that the creditor has recourse against the ship regardless of the
owner’s identity.
According to the Iraqi Laws, the application of arrest should be directed against the party res-
ponsible for the debt. There is no legal provision which gives the creditor the right to arrest a
ship unless its owner is responsible for the debt. The arrest of a sister ship might be possible
providing that both ships are owned by the same party who is a debtor of the arresting party.
The arrest of associated ships is not possible in Iraq.

The arrest of a ship for a debt created by the charterer of the ship is impossible.
148
Yes counter-security is required by the court prior to the issue of the arrest order.
In practice there is no difference between the arrest of a vessel for a maritime claim and the
arrest of vessel for a maritime lien.
The Iraqi Maritime Code does not recognize maritime liens in specific. In addition, Iraq did not
accede to any of the International Conventions relating to Maritime Liens. Therefore, and pur-
suant to the general legal principles applicable in Iraq, the following debts shall give the creditor
a maritime lien over the ship:
a) The costs of a court action and other costs involved in the sale of the ship and the distribution
of the sale proceeds.
b) The taxes and fees due to the treasury.
c) The maintenance costs of the ship and its machinery and other equipment.
your law firm?
Assuming that all forwarded documents have been translated into Arabic by a sworn translator
in Iraq, the ship can be arrested within 48 to 72 hours.
A POA duly notarised and legalised up to the Iraqi Embassy must be submitted to the compe-
tent Court of First Instance with the arrest application. In addition, we need to attach to the
arrest application all the documentation supporting the claim against the ship. In this context it
must be noted that the official language in Iraq is Arabic which means that all documents in fo-
reign language must be translated into Arabic by a sworn translator in Iraq prior to submission.
The arrest application must be submitted manually to the competent Court of First Instance as
electronic filing is not available. The documentation supporting the claim must be attached to
the application and if this documentation is in foreign language it must to be translated into
Arabic language. Only official documents must be legalised up to the Iraqi Embassy at the place
of issuance and then legalised by the Ministry of Foreign Affairs in Iraq.
In principle, they will not.
17. What is the procedure to release the ship from arrest?

The release of the ship by the applicant is done by virtue of a simple memorandum submitted
to the court in this regard. If the defendant to the application wants to release the ship, he must
deposit the security determined by the judge and request him to issue an order in relation to
the release of the ship. Both orders must be served upon the ship and the harbour master or
the coast guard.

The only type of security acceptable by the court is bank guarantee issued by a bank.

The judge will determine the amount of the security that must be deposited by the defendant to
the arrest application in order to release the ship. This issue is left to the discretion of the judge.

P&I LOUs are unacceptable by Iraqi Courts.

The release of the ship can be done within 48 to 72 hours.
149
The defendant to the arrest application may file a grievance to the judge that issued the arrest
order. Upon hearing the grievance, the Court may order the lifting of the arrest order and such
judgment shall be enforceable. This judgment may be appeal through the normal channels of
appeal.
The applicant must, within eight days starting from the issue of the arrest order, file substantive
proceedings before the competent court to sustain the arrest order, failing which the arrest
order will be void ab initio.

Under the general principles of civil law, a claim for wrongful arrest may succeed if the party
claiming indemnification can prove the bad faith of the arresting party and its losses arising
from the arrest.
This concept is not recognised in Iraq.
In principle, it is not possible unless we succeed in proving to the Court that the ship is under the
risk of a quick deterioration and in a situation that endangers third parties.
150
SHIP ARREST IN IRELAND
By Hugh Kennedy, Partner*
KENNEDYS
Hugh.Kennedy@kennedyslaw.com
www.kennedyslaw.com
Ulysses House, Foley Street, Dublin 1
Tel: 00 353 1 878 0055
Fax: 00 353 1 878 0056

Arrest procedure in Ireland is straightforward, quick and requires no security from the arresting party.
Similar to most maritime jurisdictions, there are only certain types of claims where a Claimant can
bring an action in rem, giving a right to arrest a vessel. However, the lack of any consolidating legis-
lation has resulted in Admiralty jurisdiction which is rather disjointed. Therefore, it is important in
Ireland to consider the jurisdictional basis of each claim to ensure there is a right of arrest and to avoid
any potential liability for wrongful arrest.

The 1952 Convention applies in Ireland.

A ship can only be arrested by an application to Court. The two principal jurisdictional sources which
provide a right to arrest a vessel in Ireland are:
(a) The Court of Admiralty (Ireland) Act 1867; and
(b) The Jurisdiction of the Courts (Maritime Convention) Act 1989

No.

(a) Damage caused by any ship either in collision or otherwise;
(b) Loss of life or personal injury caused by any ship or occurring in connection with the operation
of any ship;
(c) Salvage;
(d) Agreement relating to the use or hire of any ship whether by charterparty or otherwise;
(e) Agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;
(f) Loss of or damage to goods including baggage carried in any ship;
(g) General average;
(h) Bottomry;
(i) Towage;
(j) Pilotage;
(k) Goods or materials wherever supplied to a shop for her operation or maintenance;
(l) Construction, repair or equipment or any ship or dock charges and dues;
(m) Wages of masters, officers or crew;
(n) Master’s disbursements, including disbursements made by shippers, charterers or agents on behalf
of a ship or her owner;
(o) Disputes as to the title to or ownership of any ship; This shall be construed as including disputes
as to possession of a ship;
(p) Disputes between co-owners of any ship as to the ownership, possession, employment or earnings
of that ship;
(q) The mortgage or hypothecation of any ship. This shall be construed as including the mortgage or
hypothecation of any share in the ship.

Yes.
151
Providing the claim is a “maritime claim” there is a right to arrest the vessel. A ship can be arrested
irrespective as to the debtor, for example, bunkers supplied to the vessel on the orders of the time
charter, even if that time charter has come to an end. Importantly, the in rem proceedings must be
issued before there is a change of ownership or, if the vessel has been demised chartered, before that
demise charter has terminated.
Perhaps the most significant effect of the Arrest Convention is the possibility to arrest a sister ship.
Article 3(1) of the Arrest Convention expressly permits the arrest of sister ships. It is possible to arrest
a sister ship providing that:
(a) The claim is a “maritime claim”.
(b) The ship flies the flag of a contracting country to the arrest convention.
(c) That the claim arose in respect of another ship which, at the time that when the maritime claim
arose, was also owned by the same person.

A vessel can be arrested for maritime claims arising during the demise charter and a time charter. Is-
suing in rem proceedings creates the right to arrest the “res” being the ship. If prior to the proceedings
being issued, ownership of the vessel has changed (or a demise charter has been terminated) then
the new owner of the vessel is not liable and there is no right to arrest the vessel.
Time charterers are distinct from Demise Charterers who are regarded as the temporary owners of
the ship.

No, counter-security is not required in Ireland.
Yes. Issuing in rem proceedings creates the right to arrest. Certain maritime clams do not survive a
change of ownership and, if proceedings are not issued before the change of ownership, the right
to arrest the vessel terminates upon that change of ownership. Certain claims, however, for example
unpaid crew wages, establish maritime liens which are not dependent on proceedings having been
issued. However, for all other claims, the arresting party’s right to arrest vessel only arises upon the
proceedings being instituted.
Yes. Ireland recognises maritime liens. Ireland has not enacted any International Convention on ma-
ritime liens.
law firm?
Arrest procedure in Ireland is straight forward and quick. We can normally arrest within a few hours
of being instructed.
No Power of Attorney is required, however, copies of supporting documentation will need to be
provided at the arrest application in Court, for example, Bills of Lading, Charterparties, commercial
Invoices etc. Copies by fax or email are sufficient for the initial arrest application.
Original documentation is not required for the initial arrest application but originals may need to be
filed with the Court if the arrest is contested by the ship owners. Documentation does not need to be
notarised or apostilled.
Yes arresting the vessel establishes jurisdiction for the substantive claim but Irish Jurisdiction could be
contested if the substantive claim is subject to a valid jurisdiction clause in favour of another country.
152
An application is made before the Admiralty Judge. The application is normally made on consent, im-
mediately following the provision of security. The Admiralty Marshal immediately releases the vessel.

The type of security is normally agreed between the parties. If there is no agreement as to the type of
security proffered, then the ship-owners must pay money into court and apply for a release.

Yes, security should cover interest and costs. The arresting party is entitled to an amount of security to
cover their “best arguable case”.

In practice a P&I LOU is often acceptable, subject to the arresting party being satisfied as to the parti-
cular entity proffering the undertaking.
However, there is no decided case in Ireland compelling an arresting party to accept a P&I LOU as
security.

A ship is released very swiftly on receipt of security, normally within 2 hours.

Yes. An application is brought by the ship interests to contest the arrest.
on the merits?
There is no specified time but the Courts will require the Claimant to progress the proceedings on the
merits within a reasonable period.

The arresting party can be liable for all costs and expenses and damages for the detention of the
vessel unless the arresting party can show that: ¬
(a) He could not, without such arrest have obtained bail or other security.
(b) That he had otherwise good and sufficient reason for having issued the proceedings and arresting
the vessel.
There is very little law in Ireland demonstrating an arresting party’s liability for a wrongful arrest. The
Court is required only to decide whether the arresting party has established “fair stateable case and
that there are sufficient grounds for the arrest of the vessel”.
Each case will be determined on the particular facts and an arresting party should act reasonably
and in good faith. Providing the arresting party can establish both a “fair and stateable case” and
that there was “good and sufficient reason” for arresting the vessel there would be no liability for a
wrongful arrest.
It is considered difficult to pierce and lift the corporate veil in Ireland.
It is possible to have the vessel sold pendent lite. Given the draconian nature of a judicial sale, which
would deprive the ship owner of his vessel, the Court would need to be satisfied that the sale should
be ordered. Each matter would be taken on its particular circumstances and in certain situations a sale
could be ordered quite swiftly.
*Hugh Kennedy is a shipping lawyer who specialises in ship arrest in Ireland. Hugh is instructed by ship owners, prominent insurance com-
panies, P&I Clubs, cargo and hull underwriters, and by leading International law firms who specialise in shipping, transport and insurance law.
Hugh regularly advises and lectures on all aspects of Admiralty law, including ship arrest, collisions, salvage, and casualty investigations.
Hugh’s clients include ship-owners, P&I Clubs, charterers, cargo underwriters, shippers and receivers for all types of cargo.
153
SHIP ARREST IN ISRAEL
By John Harris & Yoav Harris*
JOHN HARRIS & CO.
jharris@017.net.il & yoavh@maritime-law.co.il
www.lawships.com
2 Palmer’s Gate/36 Hanamal St.
P.O. BOX 33199, 31331 Haifa, Israel
Tel: 972-4-8627067
Fax: 972-4-8625401

1.1 Sources of the Admiralty Court’s Jurisdiction
The jurisdiction of the Israel Admiralty Court (which sits in Haifa) is established by the 1840 and 1861 English Ad-
miralty Acts. These acts were extended to the Dominions and Possessions of the United Kingdom by the Colonial
Courts of the Admiralty Act 1890. Under the Palestine Admiralty Jurisdiction Order of 1937 these acts were exten-
ded to Palestine, then a British mandated Territory.
When the State of Israel was established in 1948, under the Law and Administration Ordinance, the Admiralty Court
Acts of 1840 and 1861 became part of the domestic legislation of the newly established State.
In the year 1960 the Israel Shipping Law (Vessels) was enacted. Section 41 of this law determines the Maritime Liens
and their priorities, as follows:
(1) The official expenses of selling a vessel pursuant to a judicial sale,
(2) Port and port related charges and expenses,
(3) The costs of preserving a vessel pending Judicial sale,
(4) Payments due to the master and crew including damages for personal injury,
(5) Salvage expenses relating to the vessel, its cargo and equipment on board and expenses incurred in saving the
lives of the crew and passengers.
(6) Damages for personal injuries to passengers
(7) Damages resulting from collisions or damage caused by the vessel to port installations and buildings, dry docks,
and loss or damage to cargo and to passengers personal effects,
(8) Mortgages - no distinction is drawn between a local or foreign registered Mortgage,
(9) Necessaries.
The question of the existence of a Maritime Lien or a Statutory Claim in Rem is determined by the “Lex Causa” and
the priorities, being procedural by the “Lex Fori”. If a party wants to prove the Lex Causa this is done by providing
the Court with an expert opinion. If no such opinion is provided in accordance with the identity of a laws principle,
Israel law will be applicable.
Three Significant Judgements have been handed down by the Admiralty Court:
In the first, the Court held that a bunker carrier who supplied bunkers to a vessel ordered through an intermediary
trader did not have a maritime lien for necessaries as the vessel had effected full payment to the intermediary
supplier. This Judgement is under Appeal before the Supreme Court.
In the second, the Court held, that it had jurisdiction to act as a “Prize Court” and to order that a vessel which had
been detained whilst attempting to breach the Israel naval blockade over Gaza(which blockade has been deemed
to be lawful under international law – the “San Remo” Protocol) was subject to confiscation. However under the
circumstances of the particular matter, the Court did not order confiscation because the State of Israel did not
approach the Court immediately after it was captured and ordered that the vessel be returned to its owner. This
Judgment is under Appeal before the Supreme Court.
In the third judgment, relating to a matter of an claim for port fees paid by an agent at a foreign port (Limassol Port)
the Court held that the claimant has a maritime lien on the vessel although being paid to foreign port authorities
154
considering the wording of the 1926 Convention which was adopted by the Israeli legislator when enacting the
Israeli shipping Act of 1960. In fact the Court held that if at the place of origin a payment for port fees entitles the
creditor to a right of a claim in rem, under the Israeli law –it will be entitled to a maritime lien. According to this
judgment even general port fees are included under the maritime lien for ports fees but payments for services such
as the bussing of passengers would be excluded.
1.2 The Application for Arrest
The Application for Arrest must be filed with the Claim in Rem.
In practice, we support the Application by an Affidavit. A scanned Affidavit confirmed in front of the foreign lawyer
or by an Israeli lawyer (by fax or e-mail) will be sufficient. Additionally the Affidavit can be given by the arresting
attorney. Copies of all the relevant documents in support of the arrest are attached to the Affidavit.
A Power of Attorney is not required.
The Court has a discretion to order that the arresting party furnish security. The Court will order so on rare occasions
such as when there is a serious doubt as to the validity of the documents constituting the application for arrest or if
a sister-ship arrest is requested.
Special mention should be made of the Haifa Admiralty Court’s rather liberal attitude when ordering an arrest for
necessaries. The Court will order an arrest even if the necessaries were not supplied directly by the Claimant (for
example when they were supplied by a subcontractor or a local agent) and even if the Master itself did not sign the
agreement for the supply of the necessaries.
The arrest procedure is relatively swift and the arrest can be effected within 24 hours of receiving instructions.If the
application is made on a Saturday or Public holiday, this period may be extended as a result.
Most of the arrest applications do not require an appearance before the Court or the Judge. The claim in rem and
the arrest applications are filed by electronic communication followed by a message sent from the Court’s Clerk to
the presiding Judge to draw his attention that an arrest application is filed.
The Order of Arrest will be normally discharged by the provision of a P&I Club or other acceptable guarantee. In the
latter case this would be normally a local bank guarantee.
The Vessel can apply to set aside the Arrest by contesting the merits of the claim or, on the grounds that the claim
does not constitute a maritime lien or a statutory right in Rem under the Lex Causa or that the Admiralty Court does
not have jurisdiction.
In order to avoid delay to the vessel, security can be furnished without prejudice and subject to the vessel’s rights to
contest the Arrest and to have the security provided cancelled.
Upon serving the Order of Arrest on the vessel’s Command, the Port Authority and Border Police, the Arrest beco-
mes effective. The arrest order is drafted in a manner it will contain orders according to which a scanned copy of the
Arrest Order forwarded by e-mail or fax will be sufficient for the authorities for arresting the vessel and complying
with the order. In practice an original true copy of the order is served after it has been sent by fax or e-mail.
1.3 Court Fees and Legal Costs
The Court fees payable are 2.5% of the amount claimed in the Claim in Rem of which half is payable at the time of
filing the claim. No additional Court fee is payable for the Application of Arrest.
The legal fees for attending to the Arrest excluding VAT (at present 17%) and disbursements,are between US$4,000.-
and US$6,500.-, depending on the complexity and urgency of the matter.

Although no international convention related to ship arrest has been formally adopted by the Israeli legislature the
Israeli Shipping Act of 1960 follows the Brussel 1926 Convention and the Admiralty Court can use the convention
as a persuasive source of law.

Ships or any other property of the debtor can be provisionally attached in a normal civil claim. This requires that the cause
of action is within the Court’s normal civil jurisdiction and the provision of a guarantee.

Apart from arrest or attachment.Under normal civil procedure Rules and Practice the Court can also grant a “Mareva
Injunction.

Those claims in respect of which the Admiralty Court has jurisdiction in terms of the enactments stated in Clause 1 above.

A ship can be arrested irrespective of its flag except an Israel registered vessel cannot be arrested for necessaries supplied in Israel.
155
Israel law follows the “Procedural Theory” of Arrest where “personal” liability is required and also the “Personifica-
tion” Theory” where personal liability is not required.
Which of the two is applicable would depend on the nature of the maritime lien or statutory right in rem alleged.
The court might recognizes the principle of transfer or assignment of the maritime lien if it is provided with the
relevant factual and legal grounds for such an assignment.
As Israel is not a signatory party to any of the Arrest Conventions the sister-ship arrest has not been concluded yet.
The Court may order on an arrest of a sister-ship relaying on the principle of lifting the corporate vail, and might
require a security for such an arrest. Also In the case of ships in associated ownership, under a civil claim attachment
would be subject to “lifting the corporate veil”.Notwithstanding the aforegoing, arrest of sister ships or ships in asso-
ciated ownership have been ordered by the Admiralty Court, subject to the provision of security. These have been in
“Inter-locutory” Decisions. As yet there have not been any definitive Judgements in this regard.
9. What is the position as regards Bareboat and Time-Chartered Vessels?

A ship can be arrested for an obligation incurred by a Bareboat or Time Charterer.
It should be noted that the Israel Courts recognise choice of law clauses or would apply the principles of internatio-
nal private law, as the case may be, to determine the “applicable” law governing the foreign lien or statutory right in
rem and would determine whether or not an arrest can be made say for a Time Charterer’s obligation in accordance
with the principles of such “applicable” law.

Not normally, only in exceptional cases where the Court has material doubts as to the cause of action as same ap-
pears from the documentation filed in support of the Arrest or when arresting a sister-ship.
For Arrest purposes the Courts make no distinction between the historical maritime liens which are embodied in
the 1840 and 1861 Admiralty Acts and the additional maritime liens (which are in effect statutory claims in rem)
constituted by the Section 40 of the Shipping Law 1960.
See Clause 1 above.
Yes, as in Clause 1.1 above. None of the International Arrest Conventions apply in Israel as a matter of ratification
or accession.
However as the Israeli Shipping Law mentioned in clause 1 above follows, in clause 41, part of the International
Convention for the Unification of Certain Rules of Law Relating to Maritimes Liens and Mortgages 1926 and as the
Court itself was established by and according to English Law and the Admiralty Court in fact follows both, it may
well be arguable to ask the Court to follow a relevant Convention on a specific matter, as a matter of customary law.
Yes, as in Clause 1.1 above. None of the International Arrest Conventions apply in Israel as a matter of ratification
or accession.
However as the Israeli Shipping Law mentioned in clause 1 above follows, in clause 41, the International Convention
for the Unification of Certain Rules of Law Relating to Maritimes Liens and Mortgages 1926 and as the Court itself
was established by and according to English Law and the Admiralty Court in fact follows both, it may well be argua-
ble to ask the Court to follow a relevant Convention on a specific matter, as a matter of customary law.
A POA is not obligatory. We support the arrest application with an Affidavit which should clearly set out the cause
of action and the documents in support thereof should be attached to the Affidavit.
15. What original documents are required, what documents can be filed electronically, what documents require
notarisation and/or apostille, and when are they needed?
For the Arrest Application and Order no original documents are required, but the originals would have to be pro-
duced if the claim proceeds to trial.
The Court will only accept jurisdiction if the Claim in Rem is recognised under the laws mentioned in Clause 1 above.
The Application for Arrest is ancillary to the Claim in Rem which means that if there is no jurisdiction over the Claim
156
in Rem – an arrest cannot be affected.

The ship can be released from arrest by successfully contesting the alleged grounds of arrest or the Courts jurisdic-
tion or by providing an acceptable guarantee.

The usual securities acceptable to the Court are a deposit within the Court a P&I LOU issued by one of the Interna-
tional Group of P&I Clubs or a bank guarantee issued by an Israeli bank.

Under the Arrest order the Court states the amount that should be deposited or secured for the release of the Ves-
sel. Usually the interests and costs are included in the claim and the arrest order as being part of the maritime lien.
20. Are P& I LOUs accepted as sufficient to lift the arrest?

Yes. See 18 above.

If security is provided as above, a matter of day. If the arrest is contested for substantive or pro¬cedural reasons, the
Court will attempt to resolve the matter as soon as possible but if the issues are complex this may take up to a week.

Yes, as described in clause 17 above.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?
After preliminary hearings the matter is normally concluded within one year as from the date of filing the Claim in
Rem. As a matter of practice the Arrest in itself normally determines the matter.

Yes. The Court can award damages for wrongful arrest if the arrest or attempted arrest is malicious or grossly ne-
gligent.
The Corporate veil can be lifted in circumstances of fraud, deceit or maliciousness and is used to justify a sister-ship
arrest.
A ship can be sold pendente lite if it can be shown that the continuation of the arrest will substantially affect the
value of the ship. In this case the net sale proceeds are regarded as having substituted the ship for all purposes,
including the eventual determination of the validity of the claims in rem and the priorities.
*John Harris established the legal firm of J. Harris & Co in 1977. The firm is dedicated exclusively to the practice of Maritime and Admiralty law.
The firm regularly receives a “top tier” ratings from independent legal rating entities including Legal 500, Dun & Bradstreet and BdiCoface and
now also Chambers which has introduced an Israeli “Shipping and Transport” rating following representations made by Adv. John Harris to them.
*Adv. Yoav Harris graduated in 1999 “summa cum laude” from the law faculty of Haifa University and specialises in maritime law and
com¬mercial litigation. He is a partner in the Israeli international law firm of “Doron, Tikotzky” and is the head of their maritime law department.
Yoav is a co-lecturer at the law faculty of Haifa University for civil procedure and was a co-writer of opinions regarding the Israeli EEZ and the
research and production of natural gas licensing issued by the Marine Resources Institute of the Haifa Faculty of Law, which was presented to
the relevant Government Regulatory Authority and was adopted by thisbody. Yoav Harris’s articles relating the Admiralty court’s Jurisdiction to
act as a Prize-Courts were cited by the court in its judgment described at clause 1/1 above.
The two legal offices, John Harris & Co. and Doron, Tikotzky comprise a joint shipping law group which is supported by further professional
and para-legal staff.
According to Legal500 ‘the response time is excellent as is the quality of the advice’, the ‘best shipping lawyer in Israel’, John Harris is a ‘sea-
soned professional who can handle the biggest cases, both wet and dry’ and Yoav Harris is described as “outstanding” and “an outstanding
lawyer, with razor-sharp observations and profound legal knowledge”.
Both John Harris and Yoav Harris have been involved in establishing maritime law legal precedents before the Supreme Court, the highest
Court of Appeal in Israel.
The joint Shipping Law Group has been nominated as a finalist by Lloyds List for the award “Maritime Lawyer of the Year” for the Middle East
& Indian subcontinent
157
SHIP ARREST IN ITALY (Questions 1 to 9)
By Alberto Batini*
BATINI TRAVERSO & ASSOCIATI
a.batini@bbpartners.it
www.bbpartners.it
Via Assarotti 11/9
16122 Genova, Italy
Tel.: +39 348 7902191
Mobile: +44 750 1961608
Fax: +39 010 8375896

Italy is a party to the 1952 Arrest Convention, ratified in 1979. Moreover the Italian Code of
Navigation provides a set of domestic rules applicable when the Convention does not apply in
whole or in part. Arrest is possible in Italian Ports also where there is no jurisdiction on the me-
rits. The procedure is fairly quick and informal. No counter security is required. Appeal is possible
and usually heard and decided in few weeks. P&I Clubs Letters of Guarantee are widely accep-
ted if issued by one of the IG Pool. Alternatively bank guarantees or cash deposit are available
to release the vessel.

The 1952 Brussels Convention on Arrest of Sea Going Ships has been ratified on 9.11.1979 in
Italy and applies to all vessels flying the flag of one Contracting State. It will also apply, pursuant
to article 8, to those vessels flying the flag of a non-Contracting State in respect of any claim for
which the law of the Contracting State seized with the case permits arrest. In addition our Code
of Navigation provides subsidiary rules applicable when the Convention cannot be applied in
whole or in part or to arrest issues not ruled by the Convention (articles 643-686).

A Vessel may be detained pursuant to an arrest order issued within a criminal proceeding by a
Prosecuting Judge (i.e when the Vessel can be considered as corpus delicti) or pursuant to an
administrative detention order of a Public Authority (i.e. the Harbour master Office in case of
damage to public properties like a berth, a quay, a light buoyancy).

In respect of the same claim usually arrest orders are alternatives and not cumulative. It is an-
yway possible that under special circumstances, where different interests are involved, a single
event generates more detention orders (i.e in a pollution case arising out of collision the inter-
est of the State and those of cargo owners, the colliding vessel, the salvors, the victims). From
a strict procedural profile an arrest order under the 1952 Arrest Convention for a particular
maritime claim is always alternative to any likewise detention order to secure the same claim.

A Vessel can be arrested in Italy for any maritime claim among those listed under art. 1(1) of the
1952 Arrest Convention. For Vessels flying the flag of a non-Contracting State an arrest is pos-
sible also in respect of any other claim for which the law of the court seized with case permits
arrest. This in Italy includes any debt of a contractual or non contractual nature but in this case
the arrest can only be obtained if the Vessel is owned by the debtor.

A ship can be arrested irrespectively of her flag.

A ship can be arrest irrespectively of the debtor but, if the debtor is a State or other Public body,
then the ship might be regarded as immune from arrest. Whether and to what extent immunity
may be invoked is left to the law of the forum arresti. Immunity is related to the ownership or
operation of the ship, not to the nature of employment. For example the fact that a privately
158
owned ship is employed on a liner service which is of public interest should not justify immunity
from arrest.
Sister-ships, meaning ships owned by the same Company owning the particular ship in respect
of which the maritime claim arose, can be arrested under art. 3 (1) of the Arrest Convention.
A similar principle is provided at Italian domestic law (art. 2740 Italian Civil Code). Ships in as-
sociated ownership (or management) cannot be arrested unless the Claimant can pierce the
corporate veil. This is not impossible in Italy but is certainly a difficult exercise, which implies a
rigorous burden of proof on identity of shareholders and management of the two companies.

In cases where the bareboat charterer is liable in respect of a maritime claim and not the regis-
tered owner, the situation is different if the Arrest Convention applies or not. If the Convention
applies, art. 3 (4) enable arrest of such ship or any other ship in the ownership of the bareboat
charterer, but no other ship in the ownership of the registered owner. The last sentence of
Article 3, para. 4 seems to extend the rule to any case in which a person other than the regis-
tered owner of the ship is liable (i.e the time charterer, the ship manager, etc.). This is anyway
in conflict both with the literal meaning of the provision and with the travaux preparatoires of
the Convention. When Italian domestic law applies arrest of a ship under bareboat charter to
secure a claim against the bareboat charterer, the time charterer or the ship manager is not
possible unless the Claimant has a maritime lien assisting his claim. The main reason for this is
that a creditor cannot arrest a ship to secure a claim if he can never be authorised to enforce
the final judgment on the merit against the registered owner and auction the vessel. This is the
worldwide unsolved problem of the Arrest Convention and Italy is no exception. Only maritime
liens give right to enforce a claim against the vessel, even if she is property of someone different
than the liable party. Not all maritime claims under the Arrest Convention are maritime liens un-
der the different national domestic law systems. Not the 1926 Liens and Mortgages Convention
enjoyed a wide acceptance around the world. The Lisbon Draft attempted to clear things as
well as the 1999 Arrest Convention, not yet in force.
*Alberto Batini is Senior Partner. He joined the firm in 1990. He graduatd from the University of Pisa Law School and admitted to the Bar in 1993
and to the Supreme Court. He specializes in Ship Arrest, Admiralty Law and Marine Insurance Law and Litigation.
Former assistant solicitor with Sinclair Roche & Temperley, London – 1991/1992. Former assistant claims handler at Standard Steamship Ow-
ners P&I Club, Charles Taylor & Co., London – 1992. University of Southampton – Faculty of Law – Institute of Shipping Law – 18th Maritime
Law Degree, 1992/1993. Post graduate Doctorate (PHD) in Shipping and Transport Law – University of Trieste and Genoa from 1995. Vice-
President of the Ibero-American Institute of Maritime Law (IIDM) – Italian Section since 1998. Editorial Articles in Shipping and Transport Law .
Permanent Member of the Steering Committee of the Italian Association of Maritime Law (IAMA) and active member of the Italian Working
Group for Maritime Liens and Mortgages and Arrest of Ships at CMI Conferences.
159
SHIP ARREST IN ITALY (Questions 10 to 26)
By Claudio Perrella, Partner*
LS LEXJUS SINACTA - AVVOCATI E COMMERCIALISTI
c.perrella@lslex.com
www.lslex.com
Via d’Azeglio 19, 40123 Bologna,
Ravenna, Venice
Tel: +39 051 232495
Fax: +39 051 230407

No security is required as a preliminary condition to seek an arrest of ship. The Judge may order
the applicant to tender a countersecurity, although this is rather uncommon at the time of the
filing of the application, and a security is normally requested only where the Court considers
that the arrest is controversial, or the merits of the claim have not been assessed with sufficient
depth.
If the claim is secured by a maritime lien, this may operate to allow the arrest of a vessel even if
it has changed ownership, the doctrine being that the lien attaches to the property at the time
the cause of action arises and remains so attached until satisfied or time barred. Maritime liens
take priority over registered mortgages, yet need not be registered themselves.
Italy is a signatory to the 1926 Liens and Mortgages Convention, and recognizes a list of mari-
time liens under article 552 of the Italian code of navigation, which largely coincide with the
list contained under article 1 of the 1926 Convention. The existence of a lien over the ship is
determined by the law of the flag of the ship at the time the claim or credit arose, pursuant to
art. 6 of Italian Navigation Code.
your law firm?
Instructions should be received possibly 48 or 24 hours before the moment of the presentation
of the application. It should be considered in this respect that it is crucial to file the application
early in the morning in order to try to have the case heard the same day, and in many Courts it
is impossible to file the arrest application after noon.
The presentation of an application as well as any legal activity before major Italian Courts are
made by a solicitor by virtue of a power of attorney. Powers of attorney issued outside Italy must
be legalized and apostilled pursuant to Hague Convention 5 October 1961, or alternatively
legalized by the Italian Embassy or Consulate in the country of issuance. The apostille is unne-
cessary, though, for powers of attorney released in countries party to the Brussels Convention
1987 which abolished the need of the apostille for deeds issued inside the EU; the apostille may
be furthermore excluded by virtue of bilateral agreements. Italian solicitors have the authority
to legalize powers of attorney, provided that they have had the opportunity to identify the party
signing the deed. (1) In arrest or urgent proceedings an option is furthermore provided by arti-
cle 77 c.p.c. which permits the possibility of an agency appointment, generally made in practice
by appointing (by fax or e-mail) as agent for urgent matters (including the one for which the
measure is sought) a lawyer who in turns appoints (usually) another lawyer of the firm as attor-
ney in law. A formal duly legalized power of attorney is often disclosed at a later stage in order
to prevent exceptions and technicalities.
(1) Cassazione n. 5840/2007, Alpina Versicherung A G c. Royal & Sun Alliance.

160
Original documents are not required, and could be disclosed in case the defendant contest the
truthfulness of the copy disclosed. The notarization and/or apostille are required only for the
POA.
Arrest is admitted regardless of the fact that Italian Courts have jurisdiction for the merits of the
case: the Italian Court competent for the arrest is the Court of the port of call, and the applica-
tion is subject to the condition that the vessel is within Italian territorial waters.
(2) Italian Courts however do not acknowledge jurisdiction on the substantive claim unless
they have jurisdiction by virtue of the application EU Regulation on jurisdiction, or jurisdiction
exists pursuant to article 7 of the 1952 Arrest Convention.

An application should be filed before the court seeking an order releasing the ship. It is common
practice however to ask the court, along with the arrest order, for authorization to inform the
harbor master that the ship is free to leave (upon receipt of proper security or following a sett-
lement agreement) with no need for a formal release order.
Such authorization is generally granted by the courts more familiar with ship arrest procedures,
and this considerably simplifies the release.

Either under Italian law or pursuant to the provisions of the Brussels Convention 1952 owners
may obtain the release of the ship arranging the issuance of a suitable guarantee.
The options available are two: escrow or bank guarantee (or Club’s LOU).
The first solution implies that the sums are deposited into a special bank account and authoriza-
tion from the Court is sought to shift the arrest from the ship to the sums.

Yes.

P&I LOUs are generally accepted and considered suitable to lift the arrest.

A few hours if an application is required, otherwise just a very short time if the authorization as
per question 17 above is given.

Yes, the party intending to challenge the arrest has 15 days to file an appeal, before the same
court (a board of 3 judges decides on the application)
Where the arrest is confirmed, the applicant is compelled to commence the proceeding for the
merits (unless one is already pending) before the Court having jurisdiction within a deadline
which is set by the Court up to a maximum of 60 days.

Damages for wrongful arrest are uncommon and awarded only when it is clear that the appli-
cant sought the arrest acting in bad faith or with gross negligence, disregarding the evidence
available, or intentionally providing the Court with partial or misleading background informa-
tion.
Italian Courts have started in the last few years (and in very few cases) to recognize the possibi-
lity of lifting the corporate veil, but this is quite exceptional, and the burden of proof resting on
the applicant is severe. Italian law is indeed very strict in the definition of ownership in the con-
text of companies and in applying the principle of autonomy of companies which are distinct
(2) Court of Venice, 25 August 2001, El Sayed Aly Alla c. Sayed Nasr Navigation Lines
161
and separate entities. As a result Italian Courts are reluctant to pierce the corporate veil, and
the applicant intending to do so must be able to prove that the company structure has been
actually created or employed with the purpose to frustrate creditors’ actions.
The sale of the ship pendente lite has been authorized in few instances where the applicants
successfully proved that the value of the ship under arrest was dramatically deteriorating and
the costs (custody, berth and port dues, maintenance of the ship and so forth) were being dis-
proportionate compared to the likely sale value. The proceeds of the sale are of course in this
case frozen until the applicant obtains a judgment.
*Claudio’s main areas of practice are commodities, marine cargo and goods in transit claims (charterparties, bills of lading, CMR and multi-
modal transports, GAFTA, FOSFA and Incograin contracts) and related insurance disputes in both court and arbitration proceedings. Fluent in
English and French, he assists some among the major traders, marine insurers, carriers and freight forwarders in Italy and Europe, and has
represented clients in court proceedings and arbitrations in several jurisdictions; he is an accomplished and well-known lecturer, both nationally
and internationally, on the legal aspects of shipping and trading. Claudio is the author of a two widely used handbooks on cargo insurance
and international sale of soft commodities. He is a regular contributor of Il Diritto Marittimo, Maritime Risk, Gaftaworld, Forwarder.com and
International Law Office. He is Vice Chair of the Land Transport Committee of the International Bar Association and is member of the editorial
board of Diritto e Trasporti.
162
SHIP ARREST IN IVORY COAST
By Philippe Pruvot
3A ABIDJAN
legal@group3a.com
Avenue 2, Rue 9, 2eme etage, 1ere porte D 05 BP
1586 Abidjan 05 - Treichville
Tel: +221 8 2546 0770

Jurisdiction in respect of admiralty matters is vested in the High Court in the first instance. Ap-
peals in respect thereof lie to the Court of Appeal and the Supreme Court.
Order 2 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) provides that all civil procee-
dings must be commenced by Writ of Summons and must be filed along with a Statement of
Claim. Every Writ of Summons must contain concise statement of the nature of the claim or
relief, remedy sought in the action.
Order 62 of C.I. 47 generally makes provision for maritime actions. At the time of issuing a Writ
of Summons, the Plaintiff files an Ex parte application for an order for a warrant of the arrest of
the ship. No warrant of arrest shall be issued until an affidavit by the party or his agent has been
filed and the following provisions complied with:
(a) The affidavit shall state the name and description of the party at whose instance the warrant
is to be issued, the nature of the claim or counter-claim and the name and nature of the pro-
perty to be arrested;
(b) In an action for wages or possession, the affidavit shall state the national character of the
ship proceeded against; and if against a foreign vessel, that notice of the commencement of the
action has been given to the Consul of the State to which the vessel belongs, if there be one
resident in Ghana, and a copy of the notice shall be annexed to the affidavit;
(c) In an action for bottomry, the bottomry bond, and if in a foreign language also a certified
translation thereof, shall be produced for the inspection and perusal of the registrar, and a
copy of the bond, or of the transaction thereof, certified to be correct, shall be annexed to the
affidavit;
(d) In an action of distribution of salvage the affidavit shall state the amount of salvage money
awarded or agreed to be accepted, and the name, address and description of the party holding
the same;
The port of Abidjan is the main focus of maritime transportation. The port of San Pedro is mainly
specialized in the export of wood even if it tends to diversify its activities (especially by the esta-
blishment of a container terminal assigned to MSC).
Therefore, 99% of the arrests of ships’ procedures are initiated at Abidjan so that the orders of
arrests are delivered by the President of the Court of First Instance of this city.
Usually, it is quite easy to arrest a vessel at Abidjan; however, the President of the Court requires
that all documents submitted to him must be translated into French, which is the official langua-
ge in Ivory Coast. The translation requirement could sometimes be a disadvantage because it
takes time and has to be realised by a listed translator of the Court of Appeal.
Moreover, the Courts being closed on Saturdays and Sundays, the authorizations to arrest a ship
must be obtained no later than on Fridays. However, the arrest order is implemented via the
services of the port Harbour Master who needs the arrest orders to be formally approved by the
Legal Department of the port Harbour which closes at 18:00 LT on Fridays.
Furthermore, the local regulation requires that the arrest order states several detailed informa-
tion (regarding for instance the domiciliation of the creditor, the legal form of both the deb-
tor and creditor); without those detailed information, an arrest order could easily be cancelled
upon request. The said requirement has two (2) important consequences: 1- the creditor must
provide complete information on himself, on the vessel and on the debtor;
2-99% of the releases of ships are the result from the cancellation of arrest orders. In this case
163
however, the Court’s decision to issue the arrest order is not cancelled and the claimants can
still ask the Court to issue a new arrest order and therefore oblige the Shipowners to negotiate.
To conclude, detaining a vessel is quite easy when the creditors’ claim file is complete and trans-
mitted rapidly to the Court.

Ivory Coast did not ratify the Brussels International Convention dated 10th May 1952 but accep-
ted to apply it after having accessed independence.

The answer is yes, but depends on the purpose of the procedure of arrest:
3.1 The provisional arrest of a ship

The article 8 §2 of The Brussels Convention concerns the arrests of ships flying a State flag which
is not a contracting party of the International Convention. The creditor has therefore the choice
to base his demand either on one of the maritime debts of the convention or on one of the debt
foreseen by the local Laws.
The article 8 §4 of The Brussels Convention provides that local Laws applies when the arrested
ship flies Ivory Coast Flag and when the creditor’s usual residence or principal place of business
is in Ivory Coast.
3.2 The arrest of a ship with the view to sale it In such procedure the creditor bases on Ivory
Coast Laws. The creditor would be able to arrest the vessel after the notification of a command-
ment of an enforceable title noticing a liquid and due debt.

These alternatives are “saisie conservatoire” which means “arrest” and not freezing orders.
However, the Government and/or the Port Authority are able to retain a vessel basing on the
Ivory Coast Public Law.

5.1 The provisional arrest of a ship In such procedure, when the Brussels Convention applies,
the arrest must be justified by a maritime claim as defined by the article 1 § 1 of the said Conven-
tion. Usually, the Courts issue easily an arrest order when the claim appears justified.
When the Ivory Coast Law applies, especially the Uniform Act of Ohada, the claim is not neces-
sary a maritime claim and the claim must only appear justified in its principle.
5.2 The arrest of a ship with the view to sale it In such a procedure, the claim must be based on
a liquid and due debt.

The answer is yes because, as per the Article 8 § 2 of the Brussels Convention “A ship flying the
flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in
respect of any of the maritime claims enumerated in Article 1 or of any other claim for which the
law of the Contracting State permits arrest”.

• In principle, a vessel owned by a State cannot be arrested. However, this principle is limited
to the vessels which have a governmental activity at the time of the birth of the debt. Conse-
quently, the vessels owned by a State can be arrested when such vessels have a commercial
activity at the time of the birth of the debt.
However, Ivory Coast vessels can in no case be arrested in Ivory Coast.
Under Ivory Coast Law, the seizure of property is limited to the property owned by the debtor.
Consequently, when Ivory Coast Law applies for the arrest of ships, the ship must be the proper-
ty of the debtor except when the creditor has a maritime lien.
There are only a few decisions with regards to this question in Ivory Coast.
The article 3 §2 of the Brussels Convention provides that “Ships shall be deemed to be in the
same ownership when all the shares therein are owned by the same person or persons”. So
164
metimes, the Judges had accepted to ignore the autonomy of each property and the legal
personality of societies when evidence showed that there were a link between societies and
therefore an organised fraud in order to be insolvent.

The article 3 §4 of the Brussels Convention provides that “When in the case of a charter by de-
mise of a ship the charterer and not the registered owner is liable in respect of a maritime claim
relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the
charterer by demise, subject to the provisions of this Convention, but no other ship in the ow-
nership of the registered owner shall be liable to arrest in respect of such maritime claims. The
provisions of this paragraph shall apply to any case in which a person other than the registered
owner of a ship is liable in respect of a maritime claim relating to that ship”.
The international Convention points out the cause of the debt, i.e. a maritime claim relating to
the ship.
When the Ivory Coast Laws apply, a creditor may arrest a ship which is not the property of the
debtor when the creditor has a maritime lien and/or a mortgage.

As per the article 4 of the Code of Civil Procedure, the defendant (or the debtor) may ask to
obtain a guarantee to cover the payment of the costs, interests and damages for which may be
condemned the plaintiff (or the creditor). The demand for guarantee is conditioned to the exis-
tence of an adversarial debate. The procedure of arrest is not subject to any adversarial debate.
Consequently, the defendant (or the debtor) cannot ask for a counter guarantee.
A maritime Lien exists only because a maritime claim exists. It is therefore impossible to arrest a
ship basing only on the existence of a maritime Lien. A maritime Lien gives a right of mortgage
on a property even if property changes hands and a priority right to be paid before other cre-
ditors.
Ivory Coast recognizes Maritime Liens and applies the International Convention on Maritime
mortgages and liens dated 10th April 1926.
your law firm?
If the file is complete and the documents translated in French by a listed translator of a Court of
Appeal, the arrest could be obtained within the same day.
A special power of attorney would be required to recover the amount of money from the deb-
tor who has been condemned by the Court.
The Court does not require originals except when a defendant alleges that a document is a
forgery. Consequently, all documents can be filled electronically; there is not any requirement
of notarisation or apostille of the documents although it is better to legalise a special power of
attorney.
In principle, once the vessel is arrested in Ivory Coast, the Courts accept jurisdiction.

- Negotiations for amicable settlement
- Proceedings before the Court for lifting the arrest

- P&I LOU
- Local bank guarantee
165
- Deposit escrowed before the CARPA (Local bank of lawyers)

According to article 5 of the Brussels Convention “The Court or other appropriate judicial
authority within whose jurisdiction the ship has been arrested shall permit the release of the
ship upon sufficient bail or other security being furnished […]”.The security must cover only the
amount of claim which is mentioned in the order of arrest.

If there is no real dispute on the debt, a P&I LOU can be provided and an amicable release is
made without going before the Court. But the claimant is not obliged to accept a P&I LOU. He
may prefer a bank guarantee. Furthermore, there are many chances for the Court to require a
bank guarantee. The debtor can also make a deposit corresponding to the whole amount of
claim before the CARPA (Local bank of lawyers) until the case is definitely resolved.

The time necessary to lift the arrest depends on several factors including :
- The time elapsed between the arrest of the ship and the appointment of the counsel ;
- The duration of the proceedings before the court: the proceedings can take three days or more ;
- The time necessary to place security;
So it is not possible to determine exactly the time expected to release a ship.

But once the judicial decision or amicable agreement done, the vessel can be released in a few
hours.

Yes. An urgent writ of summons for release of the ship will be filed before the Court which deli-
vered the order of arrest. It can be made within two (02) days (procedure of refere).
The local Regulation, and not the Courts, imposes to the claimants to take legal action on the
merits within one (1) month after the issuance of an arrest order. It the claimant does not res-
pect this regulation the arrest becomes null and void. Actually, the Port Harbour Master would
refuse to enable a vessel to sail without having received a withdrawal (or release order) by the
Court.

Ivory Coast recognizes wrongful arrest if evidence show that an arrest is abusive, especially
when the debtor provides proofs showing that the debt has been paid.
As explained at point 8, it is possible to obtain such condemnation when the plaintiff (or credi-
tor) shows strong evidence. Courts’ decisions are rare, but existent.
A ship can be sold at the end of the procedure of arrest with the view to sell it; the creditor is
supposed to have obtained an enforcement title from the Court. The procedure for sailing the
vessel takes approximately two (2) months after the notification of a commandment to pay
before execution.
166
SHIP ARREST IN JAPAN
By Takayuki Matsui*
MAX LAW OFFICE
office@marinelaw.jp
www.marinelaw.jp
5F Izumi Garden Wing 6-3
Roppongi 1-chome Minato-ku, Tokyo
Tel: 81 3 3568 3691
Fax: 81 3 3568 3692

In Japan there are mainly two types of ship arrest. One is an arrest by lien or Mortgage. The
other is a provisional arrest.
Arrest by Lien or Mortgage – A ship can be arrested to execute a maritime lien on the arres-
ted ship or enforce a mortgage on the arrested ship. The arrestor can arrest the ship without
putting up any counter-security. To release the arrested ship the shipowners are usually
requested to put up security (although we have recently experience to release the arrested
ship without security ~ “Fairwind 308”). Provisional Arrest – A creditor of shipowners can
arrest the ship owned by the shipowners to obtain the security of their claim (regardless of
such claim is maritime or not). In order to arrest by this provisional arrest the arrestor shall put
up counter security. To release the arrested ship the shipowners are usually requested to put
up security which is usually the same amount of the arrestor’s claim amount.
No International Convention applies to arrest of ships in Japan. Japan has not ratified the
arrest conventions of 1952 and 1999.
A claimant can arrest a ship by (i) an arrest by lien or mortgage or (ii) provisional arrest.
No.
By the provisional arrest the claimant can arrest a ship under any monetary claim of
whatsoever nature against the shipowner. In order to arrest by lien or mortgage the arrestor
shall have a maritime lien or a mortgage on the arrested ship.
Yes.
In case of the provisional arrest the debtor shall be the shipowners. In case of the arrest by
lien or mortgage, the holder of the maritime lien or mortgage can arrest the ship irrespective
of the debtor.
Not impossible but not easy.
In case where a bareboat charterer is the debtor the creditor may arrest the ship based on
our special provision. In case of time charter there is some argument.
In case of an arrest by a lien or mortgage, a claimant does not need to put up counter-secu
167
rity. In case of the provisional arrest a claimant must deposit counter-security.
Yes. If a claim gives rise to a maritime lien, the claimant can arrest the ship by lien. If not the
claimant shall arrest the ship by provisional arrest only.
Yes. Japan is not member of any International Conventions. But a Japanese court can recog-
nize the maritime liens.
to your law firm?
It depends on how complicate your claim is. We have several experience to arrest ships
within 48 hours from the instruction.
In the arrest of Three Tulip to enforce the mortgage, we got the instruction on the Thursday
and arrested her next day. In the provisional arrest of Aventicum we got the instruction on
the Thursday mid-night and arrested her next Tuesday morning. In the arrest of the Pegasus
Prime by maritime lien we got the instruction on Friday morning and arrested her next Mon-
day. It all depends on case.
Yes we need a POA. Several documents are required as the Japanese courts like paper.
Originals of POA and corporate certificates are required. But some courts accept a copy. It
depends on the discretion of the judges.
ted?
It depends upon a case.
To file a motion to release the arrested ship in the court.
Cash, Bank guarantee and insurance bond can be accepted as security. But in case of arrest
by lien or mortgage, LOU of PI club can be accepted as security.
But sometimes security is not required to release the ship. We had success to release the
Fairwind 308 without any security (Yokohama District Court 4 June 2007).
Usually the claim amount secured by the arrest already includes interests and costs.
In case of arrest by lien or mortgage, PI LOU is sufficient (although such PI shall have license in Japan).
We shall prepare the papers torelease the ship. Once we file sufficient documents in the-
court, we can usually release the ship within one day. In the recent case of the arrest of JRS
CORVUS our ship was arrested in the Tuesday afternoon. We prepared the paper and could
release the ship next early morning.
Yes we have procedures. Recently six ships were arrested by the HK bunker supplier in Japan
within two weeks due to collapse of a HK time-charterer. We had a big success to set aside
the arrest o fall ships in the procedures.
168
In case of the provisional arrest it is minimum two weeks. With respect to an arrest by lien or
mortgage there is no need to take legal action on the merit.
Yes
Yes but not easy.
No. During proceedings, the ship can only be sold by a public auction at the Court.
*Takayuki Matsui graduated with a LL.B. degree from the Hitotsubashi University in 1986. After graduation, he practiced for five yearsin a Hull
Section of a Maritime Claim Department of a Japanese Insurance Company. He was admitted to the bar in 1993. He is a partner of Max Law
Office specializing in shipping laws in Japan.
Matsui’s focus has been collisions, cargo defense, arrest, and maritime disputes in court and TOMAC arbitration. He also has substantialex-
perience in ship mortgage enforcement. He is qualified as Maritime Proctor in the Japanese Maritime Court. In 1999 he earned a LL.M. in
Admiralty from Tulane Law School, New Orleans. He is an arbitrator and also a board member of the Documentary Committee of the Japan
ShippingExchange. He is an author of Time Charter Party, published in 2004. His hobby is arrest of a ship.
169
SHIP ARREST IN JORDAN
By Omar N. Omar*
o.omar@tamimi.com
www.tamimi.com
6th Circle, Emaar Towers, 11th floor,
Tower A, PO Box 18055, Zip 11195, Amman
Tel: +96265777415
Fax: +96265777425

The Jordanian Maritime Code does not regulate the conservatory arrest of ships. Therefore, the
arrest of ships in Jordan will be subject to the Civil Procedures Law which gives which gives any
creditor the right to apply to the Court of First Instance (Summary Judge dealing with urgent
matters) for a conservatory attachment of his debtor’s assets to obtain security for his claim. The
Court normally considers the arrest application of a vessel on a prima facie basis and the arrest
order is usually rendered ex-parte on the date of the filing of the application for arrest (or the
earliest thereafter).

Jordan is neither a party to the International Convention on the Arrest of Seagoing Ships of
1952 nor to the International Convention on the International Convention on the Arrest of
Ships of 1999.

Yes. Ships may be arrested in Jordan in the context of either a precautionary seizure procedure
or an enforcement procedure commenced against her. The main difference between both pro-
cedures is that the applicant is not required to have an execution deed against the ship in order
to commence precautionary arrest proceedings.

The precautionary seizure procedure above-mentioned (question No. 3) is an alternative to the
saisie conservatoire procedure.

A ship may be arrested in the Jordanian territorial waters for any debt against the owner of
the ship or the ship, provided that the debt is proved, on the face of things, to be serious and
grounded.

Yes. A ship anchored within the Jordanian territorial waters can be arrested irrespective of the
flag she is flying.

The ship can be arrested in the Jordanian territorial waters for any claim which the claimant
has against the owner of the ship or the ship if he proves, on the face of things, that his claim is
serious and grounded.
The arrest of sister ships in Jordan is possible since the creditor is given the right to arrest any of
the assets of his debtor to secure the claim provided that he proves, on the face of things, that
his claim is serious and grounded.
As for the arrest of associated ships, this recourse is not available to creditors in Jordan.
170
The Jordanian Maritime Code does not give expressly the creditor of the charterer the right to
arrest the ship for a debt resulting from the charterer’s actions. Therefore, the position of the
time charterer and bareboat charterer needs to be examined on a case by case basis while ta-
king into consideration whether the charterer has a lien on the ship.
Yes a counter-security is required in Jordan.
In practice, there is no difference between the arrest of a ship for any maritime claim and the
arrest of ship for a maritime lien.
Jordan did not accede to any of the International Conventions relating to Maritime Liens.
The Jordanian Maritime Code recognizes maritime liens and article 50 of the said code has listed
them as follows:
a) Judicial costs and expenses incurred in order to preserve the value for the benefit of the credi-
tors generally (tonnage dues and lighthouse and port fees and other dues or fees of a similar na-
ture) pilotage fees and guarding and maintenance costs from the time of the ship’s entry to the port.
b) Debts arising from the contract of employment of the master, crew members and other em-
ployees of the vessel.
c) Charges due for assistance and salvage operations and for the contribution of the ship to
general average losses.
d) Indemnity for collision or arising from other perils of the sea and from damages caused to
ports, docks and navigational routes, and compensation for injuries to passengers and crew
and for loss or damage to cargo and baggage.
e) Debts arising from contracts concluded, or operations carried out carried out by the master
outside the ship’s port of registration with his legal powers, and which are actually required for
the preservation of the ship or for completing the voyage, whether or not the master is the ow-
ner of the ship, and whether or not the debt is owed to him, or the ship chandlers, repairmen,
creditors or other contracting parties.
f) Damages due to the charterers of the ship.
g) The total of premiums due on insurance taken on the ship’s hull, tackle and equipment for
the last voyage insured, or for the last period of insurance on a term policy, provided that in
both cases this total does not exceed one year’s premiums.
your law firm?
in Jordan, the ship can be arrested within 48 to 72 hours.
A POA duly notarised and legalised up to the Jordanian Embassy must be submitted to the
President of the competent Court of First Instance with the arrest application. In addition, we
need to attach to the arrest application all the documentation supporting the claim against the
ship. In this context it must be noted that the official language in Jordan is Arabic which means
that all documents in foreign language must be translated into Arabic by a sworn translator in
Jordan prior to submission.
The original documentation supporting the claim must be attached to the application and elec-
tronic filing is not available. As mentioned under question 14 above, if these documents are in
foreign language they must be translated into the Arabic language. Only official documents
must be legalised up to the Jordanian Embassy at the place of issuance and then legalised by
the Ministry of Foreign Affairs in Jordan.
171
If foreign courts are given jurisdiction over the conflict, Jordanian courts will not accept jurisdic-
tion over the substantive claim.

the coast guard.

The security that needs to be placed to release the ship must take the form of either a bank
guarantee issued by a local bank or cash deposited in the Court.


No they are not.


The defendant to the arrest application may file an appeal against the arrest order before the
Court of Appeal. Upon hearing the appeal, the Court may issue an order lifting the arrest order
and such judgment shall be enforceable through the normal channels. The appeal shall be
submitted within 10 days from the date of issue of the arrest order. The judgment issued by the
Court of Appeal may be appealed through normal channels.
The applicant must commence substantive proceedings within eight days starting from the
date of issue of the arrest order.

from the arrest.
In principle, the concept of piercing and lifting the corporate veil is not recognised in Jordan.
Such sale could be authorized only if the ship is under the risk of a quick deterioration and in a
situation that endangers third parties.
172
SHIP ARREST IN KOREA
By Dong-Hee Suh*
SUH & CO.
lawsuh@suhco.com
www.suhco.com
10th Floor, Cheonggye Eleven Bldg
149 Seorin-dong, Jongno-gu, Seoul
Tel: +82 (0) 2-755-0199
Fax: +82 (0) 2-757-0252

There are two principal methods of arresting a ship under a Korean law—an arrest can either
be made (1) on the basis of a maritime lien against the ship that is recognized by the law of
the ship’s flag or (2) as a preliminary attachment if a creditor can show the existence of a claim
against the registered shipowner.
Chapter 5 of the Korean Commercial Code sets forth the rules for arrest of ships by way of
a maritime lien, which arise out of the use and operation of a particular vessel. For foreign-
flagged ships, however, the courts in Korea will ascertain the law of the flag state’s jurisdiction
to determine whether a particular claim gives rise to a maritime lien, but will apply Korean law
(including time bar) to the arrest proceeding. Arresting a ship by way of a maritime lien automa-
tically commences auction sale proceedings.
In contrast, the Civil Execution Act sets forth the rules for arrest of ships by way of a preliminary
attachment or preliminary disposition proceeding. An arrest by way of preliminary attachment
is available whenever a creditor can show that it has a claim against the registered owner of a
ship, irrespective of whether it is a “maritime claim” or whether the claim arose with respect to
the concerned ship. It is also possible to attach other assets under the same law. The right to
arrest a ship by way of a preliminary attachment is based on the principle that a creditor should
take interim measures to preserve its rights against the debtor. The procedure is ancillary to a
proceeding on the merits and does not give the Korean court jurisdiction over the merits of the
underlying claim. Furthermore, while arresting a ship by way of a preliminary attachment does
detain the vessel (except in the case of vessels flagged in Korea), it is not possible for the creditor
to commence auction sale proceedings unless and until a final judgment or award is obtained
from a court or arbitral tribunal having jurisdiction over the merits.
A ship may only be arrested by way of a preliminary attachment if arrest by way of a maritime
lien is not available.

Korea is not a party to any of the international conventions relating to the arrest of ships. In par-
ticular, for an arrest by way of preliminary attachment, there is no requirement of a “maritime
claim” or requirement that the claim arose with respect to a particular ship. It is only necessary
to show that the debtor on the underlying claim and the registered owner of the ship are the
same person.

In addition to the two methods for arrest of ships detailed herein, it is also possible for a creditor
to arrest a ship in reliance on a mortgage or a possessory lien.

An arrest by way of preliminary attachment, which is detailed herein, is effectually a saisie con-
servatoire.

As stated above, whether a particular claim gives rise to a maritime lien in Korea depends on
whether a maritime lien is recognized under the law of the ship’s flag. For ships that are flagged
in Korea, Article 777 of the Commercial Code sets forth the following claims that give rise to a
maritime lien:
173
(1) Claims for the cost of litigation for common interests of the creditors, public taxes imposed
on the vessel concerning a voyage, piloting fees, towing fees, maintenance and inspection char-
ges on the ship and her equipment after her last entry into port;
(2) Claims under employment contracts with crew and other persons hired onboard;
(3) Claims for salvage remuneration and contributions in general average; and
(4) Claims for loss or damage arising due to a collision or other navigation accident, loss or
damage to navigation facilities, port facilities and waterways, personal injury and loss of life of
crew and passengers.
In addition, any type of claim may be used to arrest a ship by way of preliminary attachment,
provided that the debtor is the registered owner of the ship.

A ship may be arrested by way of a preliminary attachment irrespective of her flag. However,
the availability of a maritime lien is determined by reference to the laws applicable in the juris-
diction of the ship’s flag.

A claim against a ship that gives rise to a maritime lien may be used to arrest the ship irrespective
of the debtor. For arrest of a ship by way of preliminary attachment, the debtor must be the
registered owner of the vessel.
It is not possible to arrest a sister ship or associated ship in Korea on the basis of a maritime lien.
The arrest of a sister ship is possible in a preliminary attachment proceeding, so long as the regis-
tered owner of both ships is the same. The arrest of a ship under associated ownership is theore-
tically possible where the circumstances warrant piercing the corporate veil; however, as courts
in Korea generally do not permit piercing the corporate veil, this is very difficult in practice.

Arrest of a ship under Chapter 5 of the Commercial Code requires the existence of a claim
against the ship, as opposed to a bareboat or time charterer.
In contrast, to arrest a ship in a preliminary attachment proceeding, the arresting party must
have a claim against the registered owner of the ship. A claim against a mere charterer, even a
bareboat charter, will not give rise to a right to arrest a ship by way of preliminary attachment.

Counter-security is required to arrest a ship on the basis of a preliminary attachment. The
amount of counter-security which to be provided by the arresting party in each case is up to
the discretion of the individual judge overseeing the matter. In Busan, where many applications
for arrest are filed, judges typically require 20 percent of the claim amount as counter-security,
although this can vary depending on the particular case and judge. The type of counter-security
may also vary. While judges will typically accept a surety bond, they have discretion to require
some or all of the counter-security in cash.
No counter-security needs to be posted for arresting a ship by way of a maritime lien; however,
the payment of maintenance charges and the costs necessary for auction sales proceedings is
required.
Korean law does not recognize the concept of a “maritime claim” as such, but where a claim
that is maritime in nature gives rise to a maritime lien under the law of the ship’s flag jurisdiction,
then the lien holder may arrest the ship. Alternatively, the party seeking to arrest a ship for a ma-
ritime claim or any other type of claim may do so by way of a preliminary attachment provided
that it has a claim against the ship’s registered owner.
Yes, but Korea is not a party to any of the international conventions dealing with maritime liens
and mortgages.
174
your law firm?
Upon receiving all of the documents necessary to file an application for arrest or preliminary
attachment of a ship, a minimum of 72 hours is generally required, although it may be possible
to arrest a ship within 48 hours in extreme situations. In Korea, it is not possible for a judge to
consider the application during a weekend or holiday or outside normal business hours.
Yes. An original notarized POA is required to file any application for arrest and, if the POA is no-
tarized outside of Korea, it needs legalization or an apostille. In addition, the party applying for
arrest should provide documents evidencing its claim against the debtor. In the case of arrest by
way of preliminary attachment, the party applying for arrest should, technically, also show that
the arrest is necessary to protect its interest in enforcing a subsequent judgment or arbitration
award, but in practice this is not a burdensome evidentiary requirement.
For arrest by way of a maritime lien, the applicant does not need to show that the arrest is ne-
cessary to protect its interest in enforcing a subsequent judgment since the application for arrest
itself is the first step toward commencing auction sale proceedings in Korea. Nevertheless, it is
necessary for the party applying for arrest to produce evidence showing that it has a maritime
lien under the law of the vessel’s flag jurisdiction.
In principle, original documents are required to evidence the claim against the debtor and show
the existence of a maritime lien. The latter is usually shown by provision of a legal opinion,
together with copies of relevant rules, in the ship’s flag jurisdiction. All documents originating
outside of Korea require notarization and legalization or apostille, as appropriate, and are nee-
ded at the time the arrest application is filed.
For arrest by way of preliminary attachment, the evidentiary burden on the party applying for
arrest is substantially less than in the case of an arrest by way of a maritime lien, even more so
where counter-security is being provided by the arresting party. A statement by the arresting
party, or the arresting party’s lawyer, together with copies of the basic documents showing the
existence of a claim against the debtor will typically suffice.
No. Korean law makes no provision for in rem or quasi in rem jurisdiction.

Release of the vessel is also dependent on whether the vessel was arrested by way of pre-
judgment attachment or under a maritime lien.
Pre-Judgment Attachment
To release a vessel arrested by way of pre-judgment attachment, the vessel owner must deposit
cash security equal to the full claim amount, without exception. A Letter of Undertaking may
be deposited in lieu of cash security only if the arresting party consents, otherwise only cash
is acceptable. After the security is deposited to the Court, the arrest is automatically cancelled.
The cash deposit or LOU serves as a substitute for the vessel. Unless settlement is reached soon,
litigation on the merits would soon follow.
The above is simplest way to release a vessel arrested by way of pre-judgment attachment. On
the other hand, the owner or third party owner of the vessel can file objection to the arrest with
the Court, which is similar to main litigation on the merit. Thus, the latter remedy takes much
more time, which is recommendable only where the owner is not capable of providing cash
deposit.
Maritime Lien
Once his vessel has been arrested under a maritime lien, the vessel owner may take one of two
steps to release his vessel. Firstly, the vessel owner may file an objection to the commencement
of auction sale proceedings and apply for an Order to suspend the auction sale. This is an ex-
pedient remedy. The Court will review the objection without delay and, assuming the Court ac-
cepts the objection, will order the auction sale to be suspended with deposit or without deposit
in the Court’s discretion. Once the vessel owner has obtained the Suspension Order, he must
submit the Order along with a cash deposit to the Court, which will then cancel the auction sale
175
proceedings. The cash deposit is equal to the aggregate amount of all claims against the vessel,
plus the estimated costs of conducting the auction sale. After the auction sale is cancelled, the
vessel is released and the cash deposit stands as a substitute. The cash deposit will be distributed
to the vessel’s creditors only after judgment on the merits.
A second option open to the owner of a vessel arrested under a maritime lien is to seek a decla-
ratory order from the Court that the obligation right claimed by the arrest applicant does not
exist, or that the obligation right does not give rise to a maritime lien. If the Court accepts the
vessel owner’s arguments, the Court will issue a Suspension Order. As described before, the
vessel owner would then submit both the Suspension Order and a cash deposit to the Court,
and the Court would then cancel the auction sale proceedings.

Regardless of whether the vessel was arrested by way of pre-judgment attachment or under a
maritime lien, it is cash.

In case of arrest based on pre-judgment attachment, security does not need cover interest or
costs. In contrast, in case of arrest based on a maritime lien, the security need to cover the costs,
but not interest.

It is not accepted.

In case of arrest based on pre-judgment attachment, if cash deposit is posted for cancellation
of arrest, the arrest will be cancelled automatically. Thus, we may say that it takes 1 day or at
most 2 days.
In contrast, in case of arrest based on a maritime lien, several procedural steps should be taken.
The time necessary depends on several factors including the Court’s then work load situation
and the availability of judge. We can say that it takes 3 days to 1 week.

The owner of the vessel can file lodge objection with the court, and then the court will review
the merit.
As arresting a ship on the basis of a maritime lien automatically commences auction sale pro-
ceedings, the claimants are not required to take legal actions on the merits within any speci-
fic period of time. In practice, however, the shipowners will usually challenge the existence
of the obligation giving rise to the maritime lien, the claimant’s right to exercise the maritime
lien, or both, and apply for the suspension of the execution of auction sale proceedings while
the challenges are considered by the court. In order to suspend the execution of auction sale
proceedings, the shipowners are required to deposit a cash sum equivalent to the aggregate
amount of all claims against the ship plus estimated auction sale costs or, alternatively, to reach
an agreement with the arresting party about the type and amount of security to be provided. If
suitable security is provided, the ship will be allowed to sail while the court considers the merits
of the shipowners’ arguments.
For arresting a ship on the basis of a preliminary attachment, there is no stipulated period for
brining a claim on the merits. Rather, the shipowners must apply to the court for an order di-
recting the arresting party to proceed on the merits of its claim. The court will then consider the
circumstances of the case and stipulate a time period of more than two weeks, generally closer
to one month.
Meanwhile, the ship will be detained (if it is not registered in Korea) unless and until the shipow-
ners have provided suitable security to the arresting party, typically a cash amount equal to the
amount claimed against the debtor.

Yes. A wrongful arrest claim in Korea will be assessed using ordinary tort principles. If the arres-
ting party does not succeed on the merits of the underlying claim, the court will presume that
176
the arrest was effected negligently. The arrest may also be wrongful, even if the arresting party
eventually succeeds in recovering some amount, if the amount recovered is significantly less
that the amount initially claimed when arrest the ship.
Korean law permits piercing the corporate veil. However, in practice, the courts have permitted
piercing the corporate veil only in rare circumstances.
For arrest on the basis of a maritime lien, a ship can be sold pendete lite and, in fact, will usually
be sold pendete lite unless cash security is provided by the shipowners.
In the case of arrest by way of preliminary attachment, it is not possible for the ship to be sold
pendete lite as this is only a provisional remedy to secure a claim pending final resolution of the
merits of the dispute by a court or arbitral tribunal properly seised of jurisdiction.
* Dong-Hee Suh is the managing partner of the law firm Suh & Co. and has over twenty years of expertise in international commercial
litigation and arbitration in maritime shipping matters, international trade, marine insurance, aviation accidents, ship finance and ship
building.
Mr. Suh is a Legal Advisor to the Ministry of Oceans and Fisheries and the Ministry of Land, Infrastructure and Transportation. In
addition, Mr. Suh advised foreign clients on rehabilitation proceedings for Samsun Logix, Daewoo Logistics and STX Pan Ocean.
Mr. Suh’s prior honors include the 2012 Hong Kong MLA luncheon meeting where he addressed “Cross-Border Insolvency Law and
Practice in Korea” and the 2012 Comité Maritime International Conference in Beijing where he was the South Korean delegate to the
section on the Judicial Sale of Ships.
Mr. Suh received his LL.B. from Seoul National University Law College in 1984. He received an LL.M. from Tulane University in 1996
and was admitted to the New York bar in 1997. He has previous experience working at the law firm Kim & Chang (1992~2000) before
founding Suh & Co in 2000.
177
SHIP ARREST IN KUWAIT
By Omar N. Omar*
o.omar@tamimi.com
www.tamimi.com
Khaled Bin Al Waleed Street, Sharq , Al Dhow Tower,
16th Floor , PO Box 29551, Safat 13156 , Kuwait City
Tel: +96522966420
Fax: +96522966424

The Kuwaiti Maritime Code regulates the conservatory arrest of ships. The arrest application
is submitted to the Court of First Instance (Summary Judge dealing with urgent matters). The
Court normally considers the application of arrest of a vessel on a prima facie basis and the
arrest order is usually rendered ex-parte on the date of the filing of the application for arrest (or
the earliest thereafter) provided that the claim is proven based on the face of things. The arrest
order may be challenged but this procedure is usually complex and lengthy.

Kuwait is neither a party to the International Convention on the Arrest of Seagoing Ships of
Ships of 1999.

Ships could be arrested in Kuwait in the context of either a precautionary seizure procedure or
an enforcement procedure commenced against her. The main difference between both proce-
dures is that the applicant is not required to have an execution deed against the ship in order to
commence precautionary arrest proceedings against the ship.

There are not alternatives for the arrest of ships in Kuwait as the Maritime Code regulated the
arrest of ships in specific which prevents the applicant from relying on other laws in Kuwait.

In order to arrest a vessel in the Kuwaiti territorial waters the creditor must have a maritime debt
against the ship. Article 73 of the Kuwaiti Maritime Code defines “maritime debts” as a debt
arising from the following:
a. Damage caused by the vessel by reason of a collision or otherwise.
b. Loss of life or personal injuries occasioned by the vessel and arising out of the use thereof.
c. Assistance and salvage.
d. Contracts relating to the use or exploitation of the vessel under a charterparty or otherwise.
e. Contracts relating to the carriage of goods under a charterparty, bill of lading, or other do-
cuments.
f. Loss of or damage to goods or chattels being carried on board the vessel.
g. General average.
h. Towage or pilotage of the vessel.
i. Supplies of products or equipment necessary for the utilization or maintenance of the vessel,
in whichever place the supply is made.
j. Construction, repair or fitting out of the vessel, and costs of it being in dock.
k. Wages of the master, officers and crew.
l. Sums spent by the master, shippers, charterers or agents on account of the vessel -or on ac-
count of the owner thereof.
m. A dispute as to the ownership of the vessel.
n. A dispute in connection with the co-ownership of the vessel, or with the possession or use
thereof, or with the right to the profits arising out of the use thereof.
178
o. Maritime mortgages.

Yes. A ship anchored within the Kuwaiti territorial waters can be arrested irrespective of the flag
she is flying.
The ship can be arrested in the Kuwaiti territorial waters if the claimant successfully proves that
he has a maritime debt against the vessel.
The arrest of sister ships in Kuwait is possible for any of the maritime debts listed under question
5 above with the exception of debts arising out of a dispute as to the ownership or co-owner-
ship or possession of the vessel or mortgage on the vessel (Question 5(m), (n) and (o) above).
Arresting ships in associated ownership is also possible if the debt is related to the ship. Regar-
ding the arrest of associated ships, there is a great degree of uncertainty as, for the arrest to be
successful, we need to prove to the judge the close link between the entity owning the ship that
incurred the debt and the entity owning the associated ship.

The Kuwait Maritime Code gives the creditor of the charterer who has control over the nauti-
cal navigation of the ship the right to arrest the ship for a debt resulting from the charterer’s
actions. In addition, the creditor has the right to arrest any other ship owned by the charterer.

No counter-security is needed to arrest a ship in Kuwait.
In practice, there is no difference between the arrest of a vessel for a maritime claim and the
arrest of vessel for a maritime lien.
Kuwait did not ratify any of the international conventions related to maritime liens. The Kuwaiti
Maritime Code recognizes maritime liens. In fact, the Kuwaiti Maritime Trade law has listed the
maritime liens in Article 47 as follows:
a. Judicial expenses that were spent to maintain the Vessel, sell it, distribute its price, cargo and
port charges as well as other charges, public taxes of the same kind, and charges of pilotage
and compensations for the damage that caused to the installations of the ports, docks and navi-
gation routes, and expenses for removing navigation obstacles caused by the Vessel as well as
expenses of sentry duty and maintenance since the entry of the Vessel to the last port.
b. Debts resulting from the employment contract of the captain, sailors and others relating to
the Vessel with an employment contract.
c. Monies due for assistance and salvage, and the share of the Vessel in general marine average.
d. Compensation due for collisions and other navigational accidents, compensation due for
bodily injuries to the passengers and crew, and compensation for loss or damage to goods and
possessions.
e. Debts arising out of contracts made by the master, and operations carried out by him outside
the port of registration of the Vessel within the scope of his lawful powers for an actual requi-
rement dictated by the maintenance of the vessel or the continuance of its voyage, whether or
not the master is also the owner of the Vessel, or whether the debt is due to him, or to persons
undertaking supply, or lenders, persons who have repaired the vessel, or other contractors.
your law firm?
in Kuwait, the ship can be arrested within 48 to 72 hours.
179
A POA duly notarised and legalised up to the Kuwaiti Embassy must be submitted to the com-
petent Court of First Instance with the arrest application. In addition, we need to attach to the
arrest application all the documentation supporting the claim against the ship. In this context
it must be noted that the official language in Kuwait is Arabic which means that all documents
in foreign language must be translated into Arabic by a sworn translator in Kuwait prior to
submission.
The documentation supporting the claim must be attached to the application and electronic
filing is not available. As mentioned under question 14 above, if these documents are in foreign
language they must be translated into Arabic language. Only official documents must be lega-
lised up to the Kuwait Embassy at the place of issuance and then legalised by the Ministry of
Foreign Affairs in Kuwait.
There is uncertainty in this area of law especially where the jurisdiction is given to a foreign
court and not arbitral tribunal. Therefore, and if jurisdiction is given to an arbitral tribunal, we
recommend our clients to commence arbitration within the two weeks period (as highlighted
under question 23 below) and request from the court the stay of the proceedings until an arbi-
tral award is issued. However, if jurisdiction is given to a foreign court, we may argue in court
that Kuwaiti courts have jurisdiction over the substantive claim.

the coast guard.

The security that needs to be placed to release the ship must take the form of a bank guarantee
issued by a local first class bank covering the value against which the vessel is arrested.

The security should cover the claimed amount in the arrest application.

No they are not.


The defendant to the arrest application may file a grievance before the Court of First Instance
who issued the arrest order. Upon hearing the grievance, the Court may make an order revo-
king, confirming or modifying the arrest order and such judgment shall be enforceable through
the normal channels. The judgment issued shall be appealable through normal channels.
According the Kuwaiti Procedures law the applicant must, within eight day at the most from the
date of the service of the arrest order, bring a claim before the court for the confirmation of his
right and validity of the arrest, failing which the arrest shall be declared null and void.

Yes. The claim of wrongful arrest will succeed if the party claiming indemnification can prove
the bad faith of the arresting party and its losses arising from the arrest.
180
Potentially yes depending on the type of company.
Such sale could be authorized.
181
SHIP ARREST IN LATVIA
By Edward Kuznetsov*
MARITIME LEGAL BUREAU
ek@mlb.lv / office@mlb.lv
www.mlb.lv
2 Elizabetes street, office 210,
Riga, Latvia, LV-1010
Tel: +371-67-399985
Fax: +371-29-271166

In Latvia claimant is entitled to arrest the vessel to secure his claim before claim on merits is brought.
Latvian Maritime Code (hereinafter – LMC) gives definition of arrest as “any detention of a ship or
prohibition of its relocation in accordance with a court adjudication in order to secure maritime claim.
Arrest does not mean attachment of a ship in order to implement a court judgment or use of other
compulsory means, including the detention of a ship in accordance with administrative procedures,
upon implementation of state control of ports and supervision of the navigation regime of Latvian
waters”.
Petitions to arrest the vessel are heard by the regional courts of common jurisdiction. Law does not
determine minimum amount of claim enabling ship arrest.
Court tax for debtor’s asset arrest before bringing claim on merits is 0.5% from the claimed amount.
Language of hearing is Latvian and all documentation must be presented to the court in Latvian.
Ruling to arrest the vessel is issued by a sole judge on ex partie basis. If the claim is secured by arrest
of the vessel, the court gives out a copy of corresponding decision to the claimant with an inscription
that the copy is given out for detention of the vessel in the port. Appeal to the ruling cannot suspend
the enforcement of the ruling.
When making the decision on the question of arrest of the vessel the court takes into account prima
facie formal legal basis.
Latvia is a party of the Ship Arrest Convention 1999. Definitions of maritime claims are listed in the
LMC in conformity with Article 1 of the Ship Arrest Convention 1999.
But the Ship Arrest Convention 1952 is also in force. These days in Latvia it is possible to apply to pro-
visions of both Ship Arrest Conventions depending on the circumstances.

As per LMC and local Civil Process Code provisions arrest of any ship is allowed if a maritime claim
exists in relation to this ship.
4. Are there alternatives e.g. Saisie conservatoire or freezing order?

No, Latvian legal system does not recognize Saisse conservatoire or freezing order.

A ship can be arrested to secure a maritime claim. Types of maritime claims are listed in the LMC in
conformity with Article 1 of the Ship Arrest Convention 1999.

Provisions of the LMC apply to all ships located in waters under Latvian jurisdiction with no irrespecti-
ve to the flag the vessel is flying. Thus, a ship flying any flag can be arrested in Latvia.

The arrest of any ship is allowed if in relation to the ship one of the following conditions is in effect:
• the person who owned the ship at the time when the maritime claim arose is liable for the claim and
is the ship owner at the time of arrest of the ship;
• the person who was the bareboat charterer of the ship at the time when the maritime claim arose
182
is liable for the claim and is the bareboat charterer or ship owner at the time of arrest of the ship;
• the claim arises from a mortgage or other similar type of encumbrance on a ship;
• the claim relates to the ownership or possession rights of the ship; or
• the claim is directed against the ship owner, bareboat charterer or ship’s operator and this claim is
secured by maritime lien.
Any other ship or ships that at the time of arrest are owned by such persons may also be arrested as
are liable regarding a maritime claim and who at the time the claim arose were:
• The owner of the ship in relation to which the maritime claim arose; or
• The bareboat, time or voyage charterer of such ship.
8. What is the position as regards sister ships and ships in associate ownership?
LMC states that any other ship or ships can also be arrested if at the time of arrest they are owned by
such persons who were liable for a maritime claim and at the time the claim arose were: 1) the owner
of the ship in relation to which the maritime claim arose; or 2) the bare boat, time or voyage charterer
of such ship.
This provision of LMC does not relate to claims arising from ownership or possession rights of the ship.

A ship can be arrested if the person who was the bareboat charterer of the ship at the time when the
maritime claim arose is liable for the claim and is the bareboat charterer or ship owner at the time of
arrest of the ship.
10. Do your Courts require counter – security in order to arrest a ship?

As per Latvian law the court could require the arresting party to put up security for a wrongful arrest,
but in practice it is required very rarely.
There is a difference - if there is a maritime lien, a court action may be taken directly against the vessel.
12. Does your country recognize maritime liens? Under which international Convention, if any?
Latvia recognizes maritime liens although is not a member of any appropriate Conventions. Claims
secured by maritime liens are listed in the LMC in full accordance with Article 4 of the Geneva Con-
vention 1993.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to you
law firm?
As it was mentioned above the language of the court hearings in Latvia is Latvian. Thus, translation
of supporting documents is required. To save time on initial stage we usually ask our principals to
provide us with all appropriate documents as soon as possible to start translation by sworn translators.
It usually takes 2-3 days to translate depending on the quantity of documents.
The court’ s resolution may be issued maximum within seven days after petition of the plaintiff and all
supporting documents are delivered to the court.
Besides the petition and supporting documents, a relevant original Power of Attorney (POA) (notari-
zed and legalized) to local lawyers is required.
Copies of attached documents are sufficient at stage of arrest.
ments require notarization and/or Apostile, and when are they needed?
At the stage of arrest in order to secure a possible claim on merits court may accept copies of do-
cuments. Translation of the documents must be prepared. Latvian courts accept electronically filed
documents if opposite party does not object against them.
POA should be certified by a public notary and covered by Apostle in accordance with terms of the
Hague Convention of 5th November 1961.
16. Will your Court accept jurisdiction over the substantive claim once a vessel has been arrested?
LMC states that if a vessel is arrested in Latvia in order to secure a possible claim on merits, Latvian
courts hear the case if only the parties have not agreed about another country court’s jurisdiction or
183
arbitration court.

Lifting arrest is a long procedure taking into account that the order to release the vessel must be is-
sued by the judge in the court trial, with participation of both plaintiff and defendant. In accordance
with the law, trial to lift arrest must be held within 30 days after claimant delivers petition that he is
satisfied with the defendant and asks to lift arrest. Practically such trial can be held during 3-5 days
after petition to release the vessel is delivered to the court.

Security to release the vessel from arrest is known to Latvian legislation and is accepted by judges. Di-
fferent types of security can be accepted: P&I Club’s letter of undertaking, deposit to the court bailiff’s
account, bank guarantee etc.

In general yes, security needs to cover interest and costs if they are reasonable.

It is to the discretion of the court, but in principle LOUs are accepted.

Sea answer to question 17 above.

Legality and validity of arrest may be contested by a participant in the matter.
On the basis of an application court may replace arrest with other means of security or revoke it.
on the merits?
If arrest ruling is obtained the court obliges the claimant to bring suit on merits during certain period
of time, usually – one month. But claimant may ask the court about other time to bring suit on merits
(two or three months). The court can accept such request taking into account concrete circumstances
of the case.

Defendant has a right to claim the plaintiff for damages having arisen in connection with the claim
security if the claim, which has been sued against him, was rejected by court. Claim for a wrongful
arrest must be brought in the court in a common way.
The piercing and lifting of the corporate veil is not acknowledged in Latvian legal system.
26. Is it possible to have a ship sold pendent lite; if so how long does it take?
There is no practice in Latvia regarding use of pendent lite. But in theory it is possible.
*Edward is CEO of law firm Maritime Legal Bureau (MLB).

Before MLB he spent several years as managing partner of another law firm in Riga, manager of private Russian ship owning company, as
manager of Legal Dept. of Lloyd’ s agency in Latvia and of local correspondent for P&I Clubs.
In May 2008 Edward was key person who hosted 5th Shiparrested.com members meeting in Riga.
He is an arbitrator of Maritime Arbitration Commission (MAC) of ICC of Russia (Moscow), Full Member-arbitrator of the GMAA in Hamburg
and Supporting Member of the LMAA.
As a lawyer Edward has experience in resolution of a wide range of both dry and wet shipping matters. Edward represents clients in courts
and in arbitrations in Latvia, Russia, Germany and UK.
In 2010 Edward has been selected as being among the world’s pre-eminent shipping and maritime lawyers (Who’sWhoLegal).
In May 2013 during 10th Shiparrested.com Conference in Marrakech (Morocco) Edward was called as the Best Member of Shiparrested.com
of the decade 2003-2013.
184
SHIP ARREST IN LEBANON
By Jean Baroudi (Managing Partner)*
BAROUDI & ASSOCIATES
jean.baroudi@baroudilegal.com
www.baroudilegal.com
Achrafieh 5585 Building, P. Gemayel Avenue, Beirut
Tel: + 961 1 428777/8
Fax: + 961 1 423582

Domestic legislation does not regulate the conservatory arrest of ships in specific. Ship arrest in
Lebanese waters is regulated by the Code of Civil Procedure which grants any creditor the right to
apply to the Judge of Execution Bureau for a conservatory seizure of his debtor’s assets to obtain
security for his claim (Article 866 of the Code of Civil Procedure). The Judge normally considers
the application of arrest of a vessel on a prima facie basis and the arrest order is usually rendered
ex-parte on the date of the filing of the application for arrest (or the earliest thereafter) provided
that the claim is proven based on the face of things. The arrest order may be challenged within
no later than five days from date of its service. The procedure of challenging the arrest order is
usually complex and lengthy. Therefore, the quickest way to arrange for the lifting of a ship arrest
is to put up a bank guarantee for the value of the arrest. The guarantee should be issued by a
local bank. A Club Letter of Undertaking is not considered satisfactory security for the Judge to lift
a vessel’s arrest.

Lebanon is not a party to the International Convention on the Arrest of Seagoing Ships of 1952
nor to the International Convention on the Arrest of Ships of 1999.

The ship could be arrested in the context of a procedure for enforcement commenced against
her owner in accordance with the provisions of articles 73 and what follows of the Lebanese
Merchant Shipping Law. The party applying for enforcement against the ship should hold a deed
ascertaining his claim against the ship.

The saisie-conservatoire is the procedure described under question 1 above while the procedure
of enforcement against a ship is described under 3 above. In certain matters of urgent character,
the Judge of Urgent Matters may order the seizure of the vessel but usually for a specific period
of time.

The law stipulates that, in general, a ship can be arrested for any claim which the claimant has
against the owner of the ship or the ship, provided the claim is proven, on the face of things, to be
serious and grounded. The Judge dealing with conservative attachments normally considers the
application for arrest of a vessel on a prima facie basis only and the arrest order will be rendered
ex-parte.

Lebanese Law does not differentiate between vessels flying Lebanese and foreign flags. Therefo-
re, a ship may be arrested by an unpaid creditor irrespective of the ship’s flag.

In general, a ship can be arrested for any claim which the claimant has against her current owner
provided the claim is proven, on the face of things, to be serious and grounded. However, where
the claim is secured by a maritime lien (See question no. 12) a recourse against the ship is accepted
regardless of her owner’s identity.
185
Under Lebanese Law, the application of arrest should be directed against the person or party
responsible for the debt. Save in the case where the claimant has a maritime lien over the ship, it is
not possible to apply for the arrest of the ship unless her owner is responsible for the claimed debt.
The arrest of a sister ship is generally possible providing that they are both owned by the same
party who is a debtor of the arresting party. The arrest of associated ships may succeed (although
chances of success are generally minimal) only if it is possible to prove the close links between the
two entities while noting that (if the arrest succeeds) it is not certain that the Judge will maintain it
in case of a challenge by the actual registered owner of the arrested vessel. Hence, there is a great
degree of uncertainty when applying for the arrest of an associated vessel.

The arrest of a ship due to the debt of a charterer is not possible if such debt does not grant the
creditor a maritime lien as described in the Merchant Shipping Law (see response to question no.
12).

The Judge has by law discretion in making the issuance of the arrest order conditional upon the
provision of a counter-security by the claimant. However, this discretion is rarely put in effect.
No. The arrest procedure is the same.
Yes. The Merchant Shipping Act defines and regulates maritime liens (Articles 48-61). Article 48 of
the above-mentioned Act defines maritime liens as being a claim for:
a. Legal costs and expenses incurred in the common interest of the creditors; port duties and taxes
due on the ship;
b. Claims arising out of the contract of engagement of the master, crew and other persons hired
on board;
c. Remuneration for assistance and salvage and the vessel’s contribution to general average;
d. Indemnities for collision or other accident of navigation; indemnities for personal injury to pas-
sengers or crew; indemnities for loss of or damage to cargo or baggage;
e. Claims resulting from contracts entered into or acts done by the master outside the port of
registry by virtue of his legal powers for the actual maintenance of the vessel or the continuance
of the voyage;
f. Damages due to charterers; and
g. Insurance premiums for policies covering the hull, fittings and gear of a vessel due for the last
voyage or the last insured period and up to a maximum period of one year.
Lebanon is party to the International Convention For the Unification of Certain Rules of Law re-
lating to Maritime Liens and Mortgages of 1926 and claims a, b, c, d and e are identical to those
listed in Article 2 of the Convention.
your law firm?
2 days if all documentation is in order and documents issued in foreign language are translated.
A POA must be provided on submission of the application. The POA must be notarized and lega-
lized by the Lebanese consulate at the place of issuance. The judge may in his discretion accept a
POA that does not meet these requirements. The documents supporting the claim must be filed
with the arrest application. If the documentation is in a foreign language, it is advisable to submit
an Arabic translation thereof.
The law requires submission of the supporting documents in original copies. The judge however
has discretion in waiving this requirement. The documents need not be notarized or apostilled
(save the POA as highlighted above).
186
No. The substantive action should be brought before a Court/Arbitration Panel that is competent
to deal with the merits of the claim. Such action must be commenced within no later than five
days from the date of the arrest order.

The procedure entails submission of an application for the lifting of the arrest along with suitable
security. The security is deposited with the judge who issued the arrest order (and not with the
claimant).

A bank guarantee issued by a local bank or cash deposit.

Security should be for an amount equal to the arrest amount. This amount usually covers the
principal amount of the claim plus 10% for costs.

P&I LOUs are not regarded sufficient by the judge dealing with the arrest.

Depending on the time it gets to arrange issuance of the security (normally, local banks need 2-3
days from the date of receipt of the instructions to issue the bank guarantee). The judge would
usually issue the order lifting the arrest on the day of submission of the security or the next day.

Yes, the arrest may be contested within no later than 5 days from date of service of the arrest or-
der. The success of the challenge is conditional upon a number of legal requirements.
The claimants must, within no later than five days from the date of the arrest order, take legal
action on the merits. Failure to file such action will result in the cancellation of the arrest order.

There are no legal precedents on the liability for the wrongful arrest of a ship. However, under
the general principles of civil law, a claim for wrongful arrest would succeed if the party claiming
indemnification can prove the bad faith of the arresting party and its losses arising from the arrest.
The damages that could be awarded for a wrongful arrest would cover all direct losses sustained
by the shipowner as a result of the arrest (e.g. port dues and associated costs, crew wages, etc...)
and possible indirect losses (including loss of profit).
Lebanese Judges tend not to allow the piercing of the corporate veil. Lebanese Courts have
allowed this only in very rare instances where proof of the fictitious character of the company is
provided by the arresting party.
Such a sale could be authorized only if the ship is under the risk of a quick deterioration and in a
situation that endangers third parties.
*Jean Baroudi graduated from St-Joseph University Faculty of Law in 1992 and obtained a Master s Degree from Southampton University in
1994. He is currently the Managing Partner of Baroudi & Associates, one of the oldest and largest law practices in Lebanon founded in 1912.
The firm is constantly recommended by international legal directories such as Chambers, Legal500 and IFLR1000 and specializes in various
areas of law. The firm acts as Lebanon correspondent for most P&I Clubs. Jean Baroudi is a former adviser to the Lebanese Minister of Trans-
port and is currently member of the Legislative Committee of the Lebanese Ministry of Transport and member of various committees of the
Beirut Bar Association. He acts as adviser to the Syndicate of Lebanese Ship Agents and is an arbitrator at the Arbitration Chamber of Monaco.
187
SHIP ARREST IN LITHUANIA
By Vytas Ramanauskas, Partner*
RAMANAUSKAS IR PARTNERIAI Law Firm
v.ramanauskas@rplaw.lt
www.rplaw.lt
S. Daukanto 9, LT-92235 Klaipeda, Lithuania
Tel: +370 46 303430
Fax: +370 46 312393

The International Convention for the Unification of Certain Rules relating to the Arrest of Sea-
going Ships, Brussels, 1952 (1952 Arrest Convention) was ratified by the Seimas of Lithuania on
26 March 2002 and since then it has been successfully applied by the Lithuanian Courts.
The Courts in Klaipeda have jurisdiction to decide on ship arrest applications only in cases when
the main proceedings, in respect of which security is required, have been instituted or will be ins-
tituted in the same courts. If ship arrest is required for obtaining of a security in respect of a claim
that is to be decided on the merits in a court of arbitration or in a foreign State Court, the District
Court of Vilnius will have jurisdiction to decide on such ship arrest application.
There are no specialized maritime courts or judges in Lithuania, but all judges have some expe-
rience in applying provisions of 1952 Ship arrest Convention and no major difficulties should be
expected when a ship arrest application is made.

The International Convention for the Unification of Certain Rules relating to the Arrest of Sea-
going Ships, Brussels, 1952 (1952 Arrest Convention) and the International Convention on Mariti-
me Liens and Mortgages (Geneva 1993) are ratified by Lithuanian Seimas and they are applicable.

A Ship that is registered and flying the State flags of the State that is a Member to the 1952 Arrest
Convention can be arrested only in respect of the claims enumerated in the Article 1 of the Con-
vention. Other ships can be arrested in respect of maritime and non-maritime claims. In accordan-
ce with the Article 12(1) on the Law of Klaipeda State Sea Port the Harbour Master may refuse
clearance of the vessel in case that there are unpaid port charges or fines in respect of the vessel or
the vessel has damaged port’s infrastructure, until such charges, fines and/or claims for damage to
of infrastructure have been paid or secured.

No.

The types of claims for which a ship can be arrested are enumerated in the Arrest Convention Para
a) to q) of Article 1(1).
6. Can you arrest a ship irrespectively of the flag?

In accordance with the Article 8(1) of the 1952 Arrest Convention a ship flying the State flag of the
Member State of the Convention can be arrested only for the claims enumerated in the Article 1
of the Convention. A Ship that does not fly the State flag of the State that is Member to the 1952
Arrest Convention can be arrested for any claims under provisions of Code of Civil Proceedings.

Yes, in some cases. Several appeals filed on behalf of the arrested ship owners trying to challenge
such arrest have been unsuccessful so far.
Under provision of the Arrest Convention a claimant may arrest the particular ship in respect of
188
which the debt arose or any other ship owned by the debtor. Therefore arrest of a sister ship is
permitted, except in respect of the claims mentioned in the Article 1(1), o-q. Ships in the associated
ownership can be arrested if it can be proved that the same persons beneficially own them. De-
monstration on the company’s website showing fleet of the company’s vessels might be sufficient
to prove that.
Part 4 of the Article 3 of the 1952 Ship Arrest Convention shall apply in respect of arrest of a Ba-
reboat chartered vessels. Such vessel can be arrested in respect of maritime claims created by the
Bareboat Charterer, or any other vessel that is owned by the Bareboat Charterer can be arrested.
Generally, a vessel cannot be arrested in respect of claims created by her Time- Charterer.

No counter security is required before arresting the ship. The court on request of the ship’s inter-
est may order the arrestor to provide counter-security within certain period of time. If this is not
complied with, the arrest will be lifted.
In case of maritime claim it is allowed to arrest either the ship in respect of which the maritime
claim arose or any sister ship. The subject of the maritime lien is the offending ship only. It can be
enforced against the ship regardless of who was in control or possession of the ship when the
events which gave rise to maritime lien occurred. Maritime lien is not enforceable against a sister
ship. Otherwise, there is no difference.
Lithuania does recognise maritime liens as per the International Convention on Maritime Liens
and Mortgages, 1993.
your law firm?
Normally it takes 2-3 working days. In very urgent cases it might be possible to arrest within the
same day on which we receive the instruction. The Courts are closed on Saturdays, Sundays and
National Holidays. No ship arrest is possible then.
We require a written legal service agreement that needs to be signed by the Client. Faxed or
emailed copy of the legal service agreement is sufficient to make a ship arrest application on
behalf of the Client. The original copy of the legal representation agreement must be presented
if requested by the Court later. No notarization or legalization of the legal representation agree-
ment is required. Basic claim documentation evidencing existence of a maritime claim in favour of
the arrestor is sufficient.
All documents can be filed electronically for the purpose of ship arrest. Only original legal service
agreement should be available if so requested by the Court. A ship arrest application normally
should be supported by:
-a copy of legal service agreement between the lawyer and the Client;
-a copy of an extract from the Companies’ Register of the Client’s State, confirming that the Client
exists as a legal entity;
-a basic Claim documents that will depend on the type of claim;
-Copy of an agreement containing the arbitration clause in case that the arrest is for obtaining
security in respect of maritime claim that is to be pursued in an Arbitration or an agreement to
litigate in a foreign State Court, or an evidence that such proceedings have been commenced.
Yes, the Lithuanian courts accept jurisdiction over the substantive claim once the vessel has been
arrested, subject that there is no agreement between the relevant parties to litigate in another
jurisdiction or to submit dispute to arbitration.
189
The Parties should make a written request to the Court to release the ship, in case they reach an
agreement. Otherwise an adequate security needs to be deposited to the Court together with
request to release the ship from arrest.

Any type of security if the Arrestor agrees. Cash payment to the court’s account or Lithuanian
Bank’s guarantee if there is no agreement as to type of guarantee.

Yes.

Not, if the arrestor does not agree with it.

One day if there is no dispute regarding type or amount of security.

Yes, but it can take few months.
14 days in the National Courts and 30 days in arbitration or in a foreign State Court.

The court may order the Plaintiff to pay damage for wrongful ship’s arrest in case if:
-the claim in respect of which the vessel was arrested was rejected;
-In case of misuse of the procedural rights to seek the ship arrest, for example arresting the vessel
despite the fact that an adequate security has been provided, submitting to the court knowingly
wrong information when seeking a ship arrest etc. The ship’s interest must prove what loss has
been suffered due to ship’s arrest.
There have not been relevant cases heard yet.
No.
*Vytas Ramanauskas (1963.03.26) is a leading shipping and maritime as well as insurance lawyer of Lithuania. He advices the Clients on
various aspects of maritime law and has a vast experience of litigations in the courts and in arbitration. He had few years of a Sea-going ex-
perience before qualified as a lawyer and then worked as claims insurance manager for a Lithuanian Shipping company. Vytas Ramanauskas
also had spent two years with one of London’s leading shipping law firm before he set up his private law firm in Klaipeda.
Vytas Ramanauskas is a Member of the Bar of Lithuania since 2001.
Professional education: 1992 Law Faculty of Vilnius University (LLM);1984 Ship Navigation Department of Klaipeda Marine College. Langua-
ges spoken: Lithuanian, Russian and English.
190
SHIP ARREST IN MALAYSIA
By Rahayu Abd Ghani, Principal Partner*
RAHAYU PARTNERSHIP – IN ASSOCIATION WITH JTJB
rahayu@jtjb.com
www.rahayupartnership.com
Suite A-17-17 Menara UOA Bangsar
5 Jalan Bangsar Utama 1, 59000 Kuala Lumpur
Tel: + 6(03)22872322
Fax: + 6(03)22877322

A ship may be arrested in Malaysia as long as the arresting party’s claim falls under any of the provisions of
Section 20(2) and Section 21 of the Supreme Court Act 1981 of England and Wales. A party who wants to
arrest a ship in Malaysia must strictly comply with the Rules of Order 70 of the Rules of Court 2012 which
govern admiralty proceedings in the Malaysian High Court. Malaysia now has a dedicated Admiralty Court
situated in the High Court of Malaya at Kuala Lumpur to hear applications for arrest relating to Vessels
calling the West Malaysian ports. For Vessels calling the East Malaysian ports, the application will have to
be heard by any of the High Courts situated in the High Court of Sabah and Sarawak.

Malaysia is neither a party to the International Convention relating to the Arrest of Seagoing Ships of 1952
nor the International Convention on arrest of Ships 1999.

No.

No.

a. any claim to the possession or ownership of a ship or to the ownership of any share therein;
b. any question arising between the co-owners of a ship as to possession, employment or earnings of that
ship;
c. any claim in respect of a mortgage of or charge on a ship or any share therein;
d. any claim for damage done by a ship;
e. any claim for damage received by a ship;
f. any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her
apparel or equipment, or of the wrongful act, neglect or default of the owners, charterers or persons in
possession or control of a ship or of the master or crew thereof or of any other person for whose wrongful
acts, neglects or defaults the owners, charterers or persons in possession or control of a ship responsible,
being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or
discharge of goods on, in or from the ship or in the embarkation, carriage or disembarkation of persons
on, in or from the ship.
g. any claim for loss of or damage to goods carried in a ship;
h. any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire
of a ship;
i. any claim in the nature of salvage;
j. any claim in the nature of towage in respect of a ship or an aircraft;
k. any claim in the nature of pilotage in respect of a ship or an aircraft;
l. any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
m. any claim in respect of the construction, repair or equipment of a ship or dock charges or dues;
n. any claim by a master or member of the crew of a ship for wages;
o. any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a
ship;
p. any claim arising out of an act which is or is claimed to be a general average act;
q. any claim arising out of bottomry;
191
r. any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried,
or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after
seizure, or for droits of admiralty.

Yes

No. we can only arrest a ship if the person who would be liable on the claim in an action in personam is,
when the cause of action arose, the owner or demise/bareboat charterer of, or in possession or in control
of, the ship
It is possible to arrest sister ships but not associated ships. Sister ships are ships that when the action is
brought is owned by the same person who was the owner of the ship in connection with which the claim
arises at the time when the cause of action arose.

It is possible to arrest Bareboat vessels but not Time-Chartered vessels.

No. However, a written undertaking by the arresting party to the Sheriff to pay the fees and expenses of
the Sheriiff while the arrested ship is under his custody and custody, must be furnished as a pre-condition
to execution of the Warrant of Arrest. In addition, a Court deposit of RM15,000 must be made prior to
issuance of the warrant of arrest.
Maritime claims are dependant upon the ownership of the ship. The ship can only be arrested provided
that the party who was the owner at the time that the cause of action arose is still the owner at the time
of arrest. Maritime liens can be enforced irrespective of ownership and entitle the claimant to issue a claim
and to arrest the ship despite a change of ownership. The procedure for arrest is the same however.
Yes. In the Dong Nai [1996] 4 MLJ 454, 463, the court cited a passage from Mallal’s Supreme Court Practice
which observes that, just like Singapore law, Malaysian law on the area of maritime liens is no different
from English law. Under English law, and hence the laws of Malaysia, claims which are recognised to give
rise to a maritime liens consists of salvage, damage done by a ship, seaman’s and master’s wages, bottomry
and master’s disbursements.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law
firm?
Usually, a Warrant of Arrest can be obtained within a reasonably short period of time, so long as all the
claim documents are in our possession, and the supporting affidavit leading to the arrest has been affir-
med/sworn. Subject to the receipt of all documentation relevant to the claim, the application to the court
can take place within a matter of hours. The actual arrest will be dependent on the availability of the bailiffs
in the area that the ship is located but should be effected within 24 hours of the warrant being issued.
There is no requirement for a POA to be furnished. However, the claim documents must be furnished.
Prior to the arrest, the arrestor should determine whether there is a caveat against arrest in force against
the ship in question.
All court documents including the affidavit leading to the arrest can be filed electronically. All relevant
documents must be filed with the court before the warrant of arrest can be issued.
Certification or apostille by a Notary is not required although if supporting documents need translating
then the translations should be certified by a Notary. The affidavit leading to the arrest, if filed a deponent
residing outside Malaysia must be affirmed before a Notary Public (for Commonwealth countries) or a Con-
sular Officer of the Malaysian Consulate Office situated in that country (for non-Commonwealth countries).
192
This will depend on the circumstances. If the claim arises out of a contract which contains an exclusive fo-
reign jurisdiction clause it may be the case that the proceedings are stayed in favour of the relevant foreign
court. However, for most other claims the Court will usually accept jurisdiction.

File into Court the release papers i.e. Praecipe for Release and Release Order and once issued serve same
on the Vessel, Marine Department and Immigration.

Bail Bond, Letter of undertaking or Guarantee.

Yes.

Yes.

Within the day, depending on what time the Release Order ia obtained.

Yes.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action on
the merits?
Upon arresting the ship and serving the Writ of Summons on the ship, time starts running under the time
table/procedure set down by the Rules of Court 2012 and the claimants can follow the timelines set out in
the Rules of Court 2012 to move the claim on its merits along the prescribed timelines.

Yes but only where the arrest of ship is carried out in circumstances where there is mala fides or gross negli-
gence (i.e. crassa negligentia) as to imply malice on the part of the arresting party which results in damage
to the owner of the arrested property.
Yes. A corporate veil may be lifted if there are special circumstances which indicate the presence of a faced
or sham set up with the object of perpetrating fraud or deception.
Yes but only where there is a good reason for it. One important factor the court takes into account is
whether, if the ship remains under arrest while the action is pending, the value of the security represented
by the ship would be progressively reduced by the continuing costs of maintaining her under arrest. Other
relevant factors include the market value of the arrested ship, the rate of depreciation in the value of the
ship, any deterioration in the condition of the ship if she remains under arrest, the time lapse before the ac-
tion comes on for trial and the quantum of the claims faced by the ship as compared with the value of the
ship and the timing of the sale. The sale procedure will take several months considering the need to obtain
the Judge’s order, the service on the owner of the ship and the sale procedure that will follow thereafter.
* Rahayu Abd Ghani is the Principal Partner of Rahayu Partnership. The firm is part of the Joseph Tan Jude Benny (JTJB) GlobalNetwork.
Rahayu graduated from the University of Newcastle-upon-Tyne with a Bachelor of Laws Honours Degree in 1996 and uponcompleting her
Certificate in Legal Practice and being called to the Malaysian Bar in 1999, Rahayu started her practice in Messrs L.Y.Leong & Partners,
Subang Jaya where she gained experience specializing in shipping, admiralty andinsurance cases. She has been exposed to a full range of
shipping, admiralty and insurance cases both contentious and non-contentious.
She also handles civil, corporate and commercial cases. Her exposure includes: project financing; shipfinancing and registration; ship sale
agreements and shipbuilding contracts; ship arrests for all types of claim; charter party and bill oflading disputes; marine insurance claims;
arbitration; and shipping litigation.
193
SHIP ARREST IN MALTA
By Dr. Kevin Dingli & Dr. Tonio Grech*
DINGLI & DINGLI LAW FIRM
kevin@dingli.com.mt & tonio@dingli.com.mt
www.dingli.com.mt
18/2 South Street, Valletta VLT 1102, Malta
Tel: (+356) 21236206
Fax: (+356) 21240321

The law on ship arrest in Malta was, until recently, governed by very archaic rules. Suffice it to say
that our admiralty jurisdiction was still regulated by British statutes which had long become defunct
in their own country of origin, namely the Vice-Admiralty Court Act 1840 and the Admiralty Court
Act 1861. These provided very limited heads of jurisdiction ‘in rem’ on the basis of which a ship could
be arrested, and in particular did not regulate the substance of the action in rem. Problems arose in
more recent cases connected with bareboat charterers, for which no provision was made.
Furthermore, there was no right of sister ship or of associated ship arrest.
All this changed with statutory amendments introduced in 2006, as further fine tuned in 2008.
Although not strictly part of this Questionnaire, it ought also to be mentioned that these amend-
ments also radically reformed the system regulating Judicial Sale by Auction of ships, as well as
introduced the concept of Court Approved Sales for Ships.

Malta is not a signatory to the Arrest Convention 1952. Ships are arrested in Malta by Warrant of
Arrest issued on any one of the grounds listed in Article 742B of the Code of Organisation and Civil
Procedure giving rise to the in rem jurisdiction of the Maltese Courts. These include all maritime
claims recognised under the Convention. The law provides for a precautionary as well as for an
executive warrant of arrest. Creditors seeking to arrest a ship in security of a claim which is not yet
judicially acknowledged must have recourse to the precautionary warrant. Judgment creditors and
other creditors being in possession of an enforceable executive title or of an Authentic Instrument
pursuant to the provisions of Regulation (EC) No. 805/2004 (such as a Mortgagee) may immediately
proceed to issue an executive warrant.

Ships may be arrested in Malta both in security of maritime ‘in rem’ claims as mentioned above, whe-
never the ship concerned is physically present within the territorial jurisdiction of the Maltese Courts,
as well as in security of ‘in personam’ claims in those instances where the shipowner may be perso-
nally subject to the ordinary jurisdiction of the Maltese Courts. Ships may also be arrested in Malta
in security of arbitration proceedings commenced against the shipowner. Finally, ships may also be
arrested in Malta pursuant to the provisions of Article 31 of Council Regulation (EC) No. 44/2001,
dealing with provisional including protective measures, in cases where the Courts of another Mem-
ber State have jurisdiction as to the substance of the matter. However, in all these cases, the ship
must always be arrested in virtue of the warrant of arrest, which remains the only way in which a
ship may be arrested in Malta.
194
The law is very clear on this point. A ship can only be arrested in Malta in virtue of a Warrant of
Arrest, and no other warrant may be issued out against a ship. In this context it is also to be borne
in mind that in virtue of Article 37A of the Merchant Shipping Act, dealing with detention of ships
as security for debts, ships constitute a particular class of movables whereby they form separate and
distinct assets within the estate of their owners for the security of actions and claims to which they
are subject.

A total number of 25 Maritime Claims giving rise to in rem jurisdiction are provided for under para-
graphs (a) – (y) of Article 742B of the Code of Organisation and Civil Procedure. These follow closely
the British Supreme Court Act 1981 but also incorporate both Arrest Conventions of 1952 and 1999
even though Malta is not yet signatory to either. The basic heads of claim may be summarised as
follows :
a) Claims to possession / ownership / title to ship; b) Questions arising between co-owners; c) Claims
in respect of mortgage / hypothec / charge on a ship; d) Claims arising out of a contract of sale; e)
Claims for damages received by ship; f) Claims for damage caused by ship; g) Claims for loss of life
/ personal injury caused by ship; h) Claims for loss of life / personal injury caused by ship ; i) Claims
arising out of agreement for carriage of goods / use or hire of ship; j) Claims for salvage; k) Claims
for damage to environment by ship; l) Claims relating to wrecks; m) Claims for towage; n) Claims
for pilotage; o) Claims for supplies / services rendered to ship; p) Claims for construction / repair /
conversion / equipping ship; q) Claims for port / dock / harbour dues; r) Claims by crew for wages /
repatriation; s) Claims for disbursements made; t) Claims for commissions / brokerage / agency fees;
u) Claims arising out of general average act; v) Claims arising out of bottomry; w) Claims for forfeiture
of ship; x) Claims for insurance premia and y) Claims for fees due to Registrar / tonnage dues.

Yes. The only requirement is that the ship has a length exceeding 10 metres, and that the claim in
respect of which the ship is arrested be no less than €7,000. All matters relating to jurisdiction and
ranking of creditors are subject to Maltese law as the lex fori.

With very few exceptions, there are no privileged debtors, so that a ship may be arrested irrespecti-
vely of who the debtor might be. The exceptions relate to ships of war, and ships wholly chartered in
the service of the Government of Malta or employed in any postal service either by the Government
of Malta or by any other Government.
Of course as shall be seen later, the underlying personal liability of the debtor for the maritime claim
concerned is an essential requisite for an action in rem following an arrest to succeed.
In cases concerning any one of the maritime claims listed in (a), (b) and (c) under question 5 above,
an action in rem and may only be brought against that ship in connection with which the claim
arose.
In all other cases concerning the remaining maritime claims listed in (d) – (y), an action in rem may
be brought against (i) that ship, where the person who would be liable on the claim for an action in
personam (the “Relevant Person”) was, when the cause of action arose, an owner or charterer of or
in possession or in control of, the ship if at the time when the action in brought the Relevant Person
is either an owner or beneficial owner of that ship or the bareboat charterer of it, and/or
(ii) any other ship of which, at the time when the action is brought, the Relevant Person is the owner
or beneficial owner as respects all shares in it. In these cases, therefore, sister ship and associated
ship arrest is possible.
The requirement of the Relevant Person being the owner or beneficial owner of the ship or the bare-
boat charterer of it at the time when the action is brought does not apply in regard to those maritime
claims secured by a special privilege in accordance with Article 50 of the Merchant Shipping Act,
which survive the voluntary sale of the vessel by up to one year from when such sale is recorded in
the ship’s register.

The answer to this question is already to be found in the response given to Question 8 above. If at
the time the cause of action arose the person who would be liable for the claim in personam (the
195
“Relevant Person”) was the charterer (which therefore includes both bareboat charterers as well as
time and voyage charterers) of the vessel concerned, then if at the time the action is brought that
same person is either an owner or beneficial owner of that ship or the bareboat charterer of it, that
particular ship may be arrested in security of that maritime claim.
Furthermore, if at the time the action is brought the same charterer liable for the claimin personam
happened to be the owner or beneficial owner of any other vessel, then that other vessel could also
be arrested in security of the maritime claim concerned.

An Owner whose ship has been arrested may request that counter-security be put up by the clai-
mant; and the Court, upon good cause being shown, will uphold such request and determine the
quantum of such counter-security in an amount of not less than €11,600 for the payment of the
penalty for wrongful arrest, damages and interest; and in default the Court will rescind the warrant
of arrest.
Maltese law does not recognise the concept of a ‘maritime lien’ as such. However, a number of ‘spe-
cial privileges on ships’ are recognised under Article 50 of the Merchant Shipping Act. The difference
between an ordinary maritime claim (as recognised under Article 742B of the Code of Organisation
and Civil Procedure) and a special privilege is essentially twofold. Firstly, special privileges survive the
voluntary sale of a ship for a period of one year from when such sale is recorded in the ship’s register.
Secondly, special privileges would rank in priority to ordinary maritime claims.
As mentioned above, Malta does not recognise the concept of a ‘maritime lien’ as such; and Malta is
not a signatory to any International Convention pertinent to maritime liens.
law firm?
Provided of course that the ship to be arrested is physically in a Maltese port, or at an anchorage
within the territorial jurisdiction of the Maltese Courts, and we have received (i) a sufficient back-
ground of facts in relation to the claim; (ii) documentation substantiating the claim, (iii) a power of
attorney – all of which may initially be forwarded to us by fax or e-mail – as well as (iv) funds covering
fees and costs, then we could proceed to arrest the ship well within 24 hours.
We always require these documents as we need to substantiate both our authority to act as special
mandatories of the claimant, as well as the claim itself in order to avoid any possible claim for wron-
gful arrest.
We should perhaps differentiate between two separate and distinct stages, being the stage at which
the precautionary Warrant of Arrest itself is issued in security of a maritime claim; and the action on
the merits which must follow the precautionary warrant of arrest in order to maintain in vigore the
effects of the warrant of arrest.
The Warrant of Arrest itself does not require to be substantiated by any documents according to
law, which only requires the completion and filing of the official form of warrant. However, in the
subsequent action on the merits, documents should be submitted to the Courts in original format, or
at least as certified true copies in the manner required by the law of procedure. In the event that only
copies of documents are available, these would need to be substantiated by evidence given either
viva voce before the Court, or by means of a sworn Affidavit.
Provided the claim falls within the ambit of Article 742B of the Code of Organisation and Civil Pro-
cedure, then the Maltese Courts would be vested with jurisdiction to entertain the substantive claim
on the merits.

The procedure entails an application requesting the Court to release the ship from arrest. This may
196
be done by the person arresting the vessel or by the shipowner. A reason has to be given for libe-
rating the vessel from arrest, such as payment of the claim, the deposit of the claim amount at the
Court registry or the setting up of adequate security.

The security involves either the deposit of the claim amount at the Court registry or the putting up of
a Maltese bank guarantee. By agreement between the parties also a P&I Letter of Undertaking can
be placed for the release.

Yes, the security needs to cover interest and costs.

The great majority of maritime lawyers acting on behalf of claimants advise clients to accept P & I
Letters of Undertaking.

Under normal circumstances the release can be achieved within the course of the day.

Yes, there is. The shipowner can file an application requesting the Court to revoke the arrest if the
arrest is wrongful and illegal.
on the merits?
Action on the merits is to be brought, or arbitration commenced, in respect of the Claim stated in
the Warrant of Arrest not yet being judicially acknowledged in virtue of a final and unappealable
judgment or arbitration award or not otherwise constituting an executive title (such as would a Ship
Mortgage), within 20 days from the date of issue of the Warrant.

Yes. Maltese Courts would recognise, and penalise, wrongful arrest. In case the Court were to find
that a Warrant of Arrest was issued on a demand maliciously made or unjustly obtained, it may im-
pose a penalty upon the arresting party in an amount of not less than €11,600.
Our Courts would likely follow English principles of company law in this regard, and would therefore
allow the piercing and lifting of the corporate veil in appropriate circumstances.
The Court may order the sale of an arrested ship pendente lite if, on application of a Creditor, it
appears that the debtor is insolvent or unlikely to continue trading and maintaining the asset. In rea-
ching its conclusion, the Court will have regard to all the circumstances, including the nature of the
claim, as well as of the defence; as well as to such steps as the defendant may have taken to secure
the claim or otherwise to preserve the ship.
* Dr. Kevin F. Dingli is one of the original founders and currently Managing Partner of Dingli & Dingli Law Firm. He graduated from the University
of Malta in 1981, and pursued postgraduate studies in shipping law at the University of London. He was admitted to the Bar at Valletta, Malta,
in 1982, and practices as an advocate.
He is a member of the Chamber of Advocates and of the Institute of Financial Services Practitioners, and has been appointed as the Member
for Malta on the Tax Commission of the Union Internationale des Avocats. He is a Deputy Registrar of the International Merchant Marine
Registry of Belize, as well as of the Maritime Authority of Jamaica.
*Dr. Tonio Grech is a Partner in the Firm, having joined the Firm in 2001. He graduated as Doctor of Laws (LL.D.) from the University of Malta
in 1983. He was admitted to the Bar at Valletta, Malta in 1984, and initially practised as an advocate at the Attorney General’s Office.
He is very much involved in court litigation and arbitration with regard to matters involving transport. He has also drafted the majority of laws
on civil aviation during the last twenty years. He is a member of the Chamber of Advocates, as well as of the Institute of Financial Services
Practitioners. He is also a Director of the Firm’s licensed fiduciary company DG Fiduciary Limited.
197
SHIP ARREST IN MEXICO
By Ignacio Melo, Partner*
MELO & MELO LAWYERS
ignacio@meloandmelo.com
www.meloandmelo.com
Río Hudson # 8, Col. Cuauhtémoc, 06500 Mexico
Tel: (52) 55 52112902
Fax: (52) 55 55207165

Mexico has no special procedural legislation on this matter neither in their old Codes of Com-
merce, nor in the Navigation and Maritime Commerce Act 1963 and was until 1994, when
there was a draft chapter for procedural rules on this matter, but was not adopted because
it was not considered appropriate to include adjective law in this Act. This project basically
followed the concepts of the 1952 Convention on the ground that at the time it was far from
the concepts of the Convention that was signed later in 1999.
On the Navigation and Commerce Act 2006, currently in force, it included adjective law provi-
sions within that Act related to the arrest of ships.
In Mexico there is no International Convention in force but our internal legislation basically
followed the concepts of the 1952 Convention.
Executive seizure.
There are not within the Mexican Legal system.
I. Loss or damage by the use of the ship;
II. Death or injury occurring, whether on land or on water, in direct relation to the use of the ship;
III. Assistance or salvage operations or any salvage agreement, including, if applicable, special
compensation relating to salvage operations or assistance to a ship that by itself or its cargo
threatened to damage the environment;
Damage or threat of damage from the ship to the environment, coastline or related interests,
measures taken to prevent, reduce or eliminate such damage; compensation for the damage,
the costs of reasonable measures for restoration of the environment actually undertaken or to
be to be taken, actual losses or losses that may occur in connection with such damage;
Costs or expenses relating to the raising, removal, recovery, destruction or the rendering har-
mless of a sunken, wrecked, stranded or abandoned ship, including anything that is or has
been on board, and costs and expenses relating to the conservation of a vessel and its crew
maintenance;
VI. Any contract related to the use or hire of a whether vessel formalised in a charter party or
otherwise;
VII. Any contract related to the carriage of goods or passengers on the ship whether formali-
sed in a bill of lading, passenger ticket or otherwise;
VIII. The loss or damage to the goods, including luggage, carried on board the vessel; General
Average;
Tugging services,
XI. Pilotage;
XII. Goods, materials, supplies, fuel, equipment, including containers supplied or services ren
198
dered to the ship for her use, management, conservation or maintenance;
XIII. The construction, reconstruction, repair, alteration or fitting of the vessel;
XIV. The rights and duties of ports, canals, docks, harbours and other waterways;
XV. Salaries and benefits due to the master, officers and other crew members under their em-
ployment on the vessel including costs of repatriation and social security contributions payable
on their behalf;
XVI. Disbursements incurred on account of the vessel or its owners;
XVII. Insurance premiums, including P&I, payable by the owner of the vessel, or the bareboat
charterer, or on their own in relation to the boat;
XVIII. The commissions, brokerages or agency fees payable by the owner of the vessel, or the
bareboat charterer, or on their own, in relation to the boat;
XIX. Any dispute concerning the ownership or possession of the vessel;
XX. Any dispute between co-owners of the vessel related to its use or exploitation of the vessel;
XXI. Claims secured by mortgage or pledge, and
XXII. Any dispute arising from a contract of sale of vessels.
Yes, the vessel can be arrested irrespective of her flag.
Yes, a ship can be arrested irrespectively of the debtor, but only if this debtor is the owner or
the Bareboat or Time Charterer.
Yes, sister ships and ships in associated ownership can be arrested.
Under Mexican Legislation any owner, disponent owner, bareboat charterer, operator and/or
time charterer can be subject to the arrest of their vessel.
The Court, when granting an arrest order, sets the amount of the counter-security to be posted
by the claimant to respond for the damages resulting of a wrongful arrest. The Court arrest
order shall have no effect until the counter-security is filed at the Court. The counter-security
can be posted either in a cash or by a bond issued by a Mexican bonding company.
The Mexican Law states the cases in which a ship can be arrested and its a close list mentioned
in point number 5 of this document.
In Mexico, the Navigation and Commerce Act provisions state the liens, in the following order:
I. Salaries and other amounts owed to the crew of the ship,, including costs of repatriation and
social security contributions payable on their behalf;
II. Claims arising from death or personal injury occurring on land or water, in direct relation to
the operation of the vessel;
III. Claims for the salvage of the vessel;
Vessels credits, arising from the use of port infrastructure, maritime signalling, waterways and
pilot.
Claims arising from tort, by reason of loss or damage caused by the use of the vessel, other
than loss, or damage caused to cargo, containers and personal belongings of passengers ca-
rried on board. Maritime liens from the last trip will be preferred to those from previous trips.
13.What lapse of time is required in order to arrest a ship since the moment the file arrives
to your law firm?
There is no mandatory period, but based on our experience, it would take approximately bet-
ween one or two weeks.
199
Yes, we require a POA duly apostilled in order to act on behalf any Legal Entity or Person.
Maritime legislation in Mexico, requires the submission of original documents evidencing the
credits and unfortunately we have to mention that this is a serious setback of the legislation,
as in practice it is extremely difficult to file a claim in different jurisdictions either domestic or
foreign, yet use original documents in more than one court..
Yes, once the vessel is arrested, the claimant has five working days to file the substantive claim
or to produce evidence that has being filed on another jurisdiction. If not, the Judge will lift the
arrest order and will declare a wrongful arrest on the claimant.
We most point that the arrest shall be ordered without previous hearing to the other party and
run without prior notice, meaning that rulings will be made secret. This is to avoid previous
knowledge of the procedure by the debtor could hasten the departure of the vessel and thus
evade justice.
Once the Court issues the arrest order and the vessel is arrested, Owners must appear before
the Court and request the Court to set the amount of the guarantee that must be posted in
order to release vessel. The guarantee can be presented either in a deposit bill (cash needs to
be deposited to the bank in order for the bank to issue the deposit bill) or by a bond issued by
a duly authorized Mexican bonding company.
A bond issued by a Mexican Bonding Company, duly authorized by the Treasury Ministry or a
cash deposit through a deposit bill issued by a Government Bank or real assets or a P&I LOU
provided that the P&I is part of the IG Group and that the party presenting the LOU is the Ow-
ner or disponent owner of the vessel or a related entity to them.
The Judge will set the amount by his own criteria, but always to an figure enough to cover the
claimed amount, plus accessories.
20. Are P&I LOU accepted as sufficient to lift the arrest?
P&I LOU are accepted by Mexican Judicial system to lift arrests provided that the P&I is part of
the IG Group and that the party presenting the LOU is the Owner or disponent owner of the
vessel or a related entity to them.
Once the guarantee is posted, it will take approximately 24 working hours for the Court to
accept the guarantee and order the release of the vessel.
22. Is there a procedure to contest arrest?
The arrest can be contested in the same arrest proceedings. If there are Constitutional Rights
violated, an Amparo remedy can be filed.
Once the vessel is arrested, the claimant have five business days to file the substantive claim or
to produce evidence that has being filed on another jurisdiction.
Yes, if the claimant fails to file the lawsuit or the final ruling is adverse, then the counter party
have legal action against the claimant of the wrongful arrest.
200
Yes, but the burden of proof is very high in order to lift the corporate veil.
Yes, it can be sold pendant the proceedings but its not likely to have a buyer that its willing to
take the risk be affected by the procedures.
* Melo & Melo Lawyers, leading law firm in Mexico was established in 1881 by Macario Melo y Tellez. Since then, and for over a hundred years,
the firm has gained national and international reputation in every area of its legal practice. Senior Partner of the firm, Dr. Ignacio L. Melo has
been active litigating for over 50 years, specializing in Maritime matters. The firm joins its experience in corporate consulting and litigation, with
the advice to various governmental and non-governmental organizations both, in Mexico and abroad.
Furthermore, the firm is involved in legal lecturing, researching and publishing in subjects in which we are specialized. From its establishment
to the present, the firm has had the practice of Maritime Law as keystone, as our firm has been a pioneer in this area for over a century. In
addition the firm also offers its services in other key disciplines such as Civil, Administrative, Tax, Commercial, Environmental, Corporate,
Bankruptcy and Labor Law.
201
SHIP ARREST IN MONTENEGRO
By Milošević Radomir*
Law Office Milošević in cooperation with ABACO Ltd
r.milosevic@lawmilos.rs
www.abaco.co.me
35 Jovana Tomasevic Str.
85 000, Bar. Montenegro
Tel: +382 30 311890
Fax: +382 30 353585

Overview is contained in answers given hereinbelow.
International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-
Going Ships 1952 (Brussels Convention) is applicable in Montenegro and consequently the
Marine and Inland Navigation Act (MINA, 1998) is mostly set out in line with the said Con-
vention. Sea-going ship is defined as a vessel intended for sea-going navigation, exceeding
12 meters in length and with GT greater than15, or authorized to carry more than 12 pas-
sengers. Montenegro has made reservation to apply domestic rules for disputes as to the
title to or ownership of any ship (Article1, paragraph (1)(o)).
The ship may be arrested only under the authority of the court for maritime claim with the
purpose of security of the claim but other Authority can order detention of the ship such
as Harbor Master Office exercising Port State Control. It is worth noting that in 2011 the
Maritime Authority of Montenegro joined the Paris MoU as a cooperating member with the
prospect of becoming a full member in the future. The Customs Office authorities and the
Criminal Court may order temporary detention of a ship for the purpose of their proceedings
and under restricted terms provided in other laws or other international conventions appli-
cable. It is not the arrest in the sense of the Brussels Convention and MINA.
The prohibition of alienation and disposal as a specific measure or alternative to ship’s arrest
exists in Montenegrin law as a security measure related to maritime claim with the court or-
der to make such entry in the Ship Register in Montenegro. Hence, possible alienation of the
ship by the Defendant against such prohibition has no legal effect whatsoever.
Maritime claims as provided by Article 1 of the Brussels Convention1952 but when Conven-
tion is not applicable for all other claims notwithstanding to the nature if there is no recipro-
city between Montenegro and the state of the flag. Because of the urgent nature of the ship
arrest procedure, examination of the existence of reciprocity by Montenegrin Court is rarely
done, andas a consequence thereof the court usually allows arrest for such ship practically
for any type of claim.
Yes.
Yes.
The concept of sister-ship arrest applies in Montenegro in the spirit of the Brussels Conven-
202
tion and the same is provided for in MINA, 1998 that the applicant may arrest any ship ow-
ned by the person against whom the claim is directed but no other ship than the particular
ship in respect of which the claim arose may be arrested in relation to the claim regarding
the ownership, mortgage, hypothecs or other like charges attached to a ship.
There is no restriction to arrest the vessel as regards Bareboat and Time-Chartered vessel. In
this regard MINA, 1998 does not depart from the Convention.
There is a certain ambiguity in regard to Time-Chartered vessel for the bunker supplied to
the chartered vessel not paid by the charterer to the supplier. There is no sufficient case law
established so far in Montenegro to give judge guidelines and the court could be strayed
and led to the conclusion that such claim is against the owner of the vessel.
This matter is not regulated by MINA, 1998 but such possibility does exist in other laws and
in our experience the Court has never required a counter-security as a precondition for ship’s
interest in order to arrest a ship or for maintenance of already ordered arrest. Further, the
claimant would have to prove in any case the existence of the claim.
No, there is no difference from the procedural point of view.
Montenegro has not ratified any convention relating to maritime liens but the 1926 Brussels
Convention on Maritime Liens and Mortgages is fully incorporated in the MINA, 1998 with
all it consequences.
to your law firm?
That depends on the contents of the file and supporting documents all of which must be
officially translated.
If the claimants have traced the vessel movement and prepared the documents as instructed
before vessel’s arrival in Montenegrin waters, no more than one day is required to sort docu-
mentation and prepare the application, but the official translation of the relevant documents
may turn to be time consuming. However, the applicant must put forward a claim meeting
the standard of lower level of proof of its existence and be well-grounded (fumus boni juris)
and that should be observed as the best guidelines in preparing supporting documentation.
Yes. No special form is required to grant a POA to our law firm which authorizes our Law
Office to handle the case. The POA is required to be signed by a duly authorized company
officer.
Apart from POA all documents and evidence supporting the claim against the debtor are
also required by the Court including agreements, vouchers, invoices and survey or inspec-
tion report by a surveyor or inspector in relation to the damage, and nature of the claim, etc.
If the arrest is based on a mortgage, the mortgage document and the appropriate petition
for foreclosure, it is prudent to provide the latest excerpt from the Ship’s Register.
Application for arrest must be in original/hard copy because electronic filings with the Court
are not possible for the time being. It is recommended that the original of POA be submitted
with affixed Apostille stamp that will follow within reasonable time and while pending re-
ceipt of the original the POA transmitted by facsimile will suffice to lodge application for arrest.
No other documents are required in original but the court may order presentation of origi-
nal if in doubt or on explicit demand of the debtor.
That is subject to the nature of the claim and some other factors, but the court shall have
203
jurisdiction to determine the case upon its merits in any of the cases specified in detail in the
Brussels Convention,1952, under Article 7, paragraph(1).
It is very simple and expeditious procedure. The shipowner may deposit the amount of mo-
ney or other valuables with the court as ordered by the court in which case the vessel will
be set free by the judge without application of the parties in dispute by issuing release order
for the ship. The release order can be served to the master through Harbor Master Office to
whom the power is presented to act for and on behalf of the court and the release order
may be sent by facsimile transmission in order to speed up the release of the vessel.
There is a peculiarity in Montenegrin law in regard of security needed for the release. The
court may order the deposit only in the amount for which the applicant had made probable
the main claim and according to the standard of lower level of proof of claim but without
costs and interest thereon, which is very difficult to assess in the early stage of proceedings.
That means the court shall not determine the nature and amount of other security met in
practice in other jurisdictions but this peculiarity can be easily overcome in practice with one
advantage that the claimant cannot be exposed to the risk to be sued for excessive security
sought and its consequences.
It is worthwhile to note that deposit with the court as ordered by the court pursuant to
provision provided in MINA, 1998 is without doubt a top quality security, but may turn out
to be a heavy burden for the owner and is rarely done in practice which is reflected in the
practice of Montenegrin Courts.
The court shall play an active role and determine the nature and amount of the claim only
in case regarding the default in discharging the agreement between the Parties when the
ship has been arrested in respect of any maritime claim enumerated in Article 1(1)(o) and (p)
allowing vessel to continue trading.
Restriction imposed on the court as described under point 18. above cannot prevent the
applicant and shipowner to negotiate the acceptability or otherwise of any form of guaran-
tee less burdensome for the debtor and if they reach an agreement the applicant must notify
the judge in writing and request the judge to release the ship from arrest and that shall be
accepted by the judge and considered as good security. Naturally, such security if offered
and accepted shall cover the amount of claim plus interest and costs.
When the interest of Montenegrin persons is involved they will usually accept foreign bank
guarantees for the amount of claim plus cost and interest as agreed between the Parties if
confirmed by Montenegrin bank because if not confirmed by the Montenegrin bank, may
cause difficulties in enforcement as the Montenegrin court has no jurisdiction over the fo-
reign bank, and recognition of a Montenegrin judgment may have to be obtained.
The court cannot force the applicant to accept P&I Letter of undertaking or Letter of guaran-
tee or in combination with P&I Club’s bank but irrespective of that we have always instructed
our clients without exerting pressure to consider acceptability of first class P&I Clubs of the
Group who have always honored their obligation and their Letter of undertaking, which
is the advantage in most circumstances to release the vessel or preventing arrest and in its
wording total liability is composed of such sum or sums as may be adjudged, inclusive of
interest and costs.
Local insurance companies are not prone to issue back to back guarantee when a P&I gua-
rantee had been issued by foreign P&I Club and another disadvantage is that P&I Club
cannot post security for an un-insured claim. However, in some cases we have attempted to
convince the P&I Club to post guarantee to the satisfaction of our clients exploiting the pos-
sibility that each Club may define circumstances when it can issue letter of undertaking for
liabilities outside the scope of P&I insurance cover against counter-security from its Members.
The ship can be released from the arrest by order of the same judge that granted the arrest
upon the occurrence of one of the causes that permit an discharge of an arrest order under
Montenegrin law described hereinabove, and the release time usually takes no more than
204
few hours on the same date of application for release subject to official hours of the Court.
Yes. The time for appealing an order for arrest to the Court of Appeal is 8 days from its no-
tification to her master, who is considered to be the legal representative of the shipowner.
After the arrest the claimant must start proceeding on the merits within 15 days if the Mon-
tenegrin Court has jurisdiction for hearing the entire action on the merits, but if the parties
have agreed to submit the dispute to the jurisdiction of particular Court or Arbitration tribu-
nal other than that within whose jurisdiction the arrest was made the single judge in his dis-
cretion may grant a period of 30 up to 60 days to the claimant to start proceeding thereafter
and if the action or proceedings are not brought within the time so fixed the defendant may
apply for the release of the ship or of the bail or other security provided.
Yes, although that matter is not regulated with MINA, 1998. The claim for indemnity can be
instituted pursuant to The Law on Obligations and Torts against the applicant inflicting loss
who wrongfully arrested the ship. The claim for indemnity should be placed in the separate
proceeding. There is not sufficient case law so far whether the complaint for damages for
wrongful arrest can be placed in the same arrest proceeding as known in other jurisdictions.
25. Do the Courts of your country acknowledge the piercing and lifting of the corporate vail?
The Court will not acknowledge the piercing and lifting of the corporate veil. Such institute
does exist in corporate law but is not applicable for maritime claims because pursuant to
the provision of MINA, 1998 the court will acknowledge the Owner/Operator as the key
person who is liable for obligation arising from navigation and use of the vessel for intended
purpose.
This matter is not regulated by MINA, 1998 pursuant to which the compulsory sale of the
vessel must be performed at public auction in rather lengthy court proceeding which must
be properly advertised inviting all known creditors. Therefore the Security and Forced Exe-
cution Act being a subsidiary source of law which provides pendente lite sale of other assets
in certain circumstances is not applicable in the case of arrested ship or seized in execution
or satisfaction of the judgment.
Due to the above said limitation a way was found by instituting the sale of the vessel,
somewhat similar to the institute of ”pendente lite” but not on the application of parties
in dispute or involved neither in the sole discretion of the court. For that purpose recently
promulgated Law on Safety of Navigation provides that Harbor Master may apply with the
court for sale of the vessel ”pendente lite” in the court proceeding if her master and the crew
abandoned the vessel without being replaced by the Owner or Operator within time left to
hire additional crew as per Certificate of Minimum Safe Manning, and as such presenting
actual or potential danger for safety of navigation, port facilities or environmental risk as the
case may be.
As regards the question how long does it take to sell the vessel ”pendente lite” there is not
sufficient case law so far but we may say for certain that will be the shortest and most sim-
plified and expeditious way of proceeding for enforced sale of the vessel experienced in
Montenegro.
*Attorney Radomir Milošević graduated magna cum laude from Belgrade University School of Law in 1977. He took his Master’s
degree from Belgrade University School of law in 1983. (Master thesis: Carriage of passengers by ship) and in 2012 earned his PhD
degree (PhD thesis: Shipbuilding contracts).
Mr. Milosevic spent a year practicing at Ingledew Botterell law firm, The North of England P&I club in England and Lloyd’s insurance
Market in 1989, specialization in international maritime law. He started his law practice in 1978 and has worked as an in-house attorney
for several Belgrade-based shipping companies prior to launching his career as a practicing lawyer in 1991.
He is managing partner at Law Office Milosevic. As a lawyer he has concentrated on international commercial matters, including
shipping and insurance law, both Serbian and international.
205
SHIP ARREST IN MOROCCO
By Hakim Lahlou*
LAHLOU ZIOUI & ASSOCIÉS
lahlou.zioui@gmail.com
www.lahlou-zioui.com
7, Rue Bendahan 20080
Casablanca, Morocco
Tel: +212522260008
Fax: +212522266928

Legally speaking, Morocco is certainly one of the most attractive forums for vessel arrests:
- No P.O.A required,
- No original documents required
- Arrest order is granted on the sole basis of an ex-parte application
- No counter security is required
- Arrest order is most of time delivered within same day or the day after the application is filed
- An alleged maritime claim is sufficient; besides, the notion of maritime claim is interpreted widely,
- When the claim is related to a vessel, she can be arrested whoever is the debtor (even it is the
time charterer)
- Sistership arrests are admitted
- Associated ship arrest are also admitted on the sole basis of some relevant clues establishing a
community of interests
- It is rather difficult to challenge an arrest order because Owners should go through an adversary
procedure
- Bank guarantee or cash deposit is required to get the arrest lifted
- Arrest has no impact on jurisdiction (expect for the exceptions provided in Brussels convention)
- There is almost no possibility to get remedies for wrongful arrest
1952 Brussels convention (for the unification of certain rules relating to the arrest of sea going
ships) is applicable in Morocco. It was ratified on 11.07.1990.

Moroccan vessels and notably fishing boats, can be arrested by Moroccan creditors in application
of the national law instead of Brussels Convention.
In the meantime, vessel detention can be carried out by port state control authorities or by Royal
Navy in case of violation of administrative or criminal law; however this has nothing to do with an
arrest under Brussels convention.

Under Moroccan law, arrest is a conservatory seizure aiming to secure a claim. It is called “saisie
conservatoire”. “Saisie execution” requires an enforceable title and can lead to the judicial sale of
the arrested vessel.

Vessels can be arrested as security for any maritime claim among those listed under article 1.1 of
Brussels Convention.
On top of this, Moroccan courts accept, through an extensive interpretation of article 1.1, to grant
arrest even in relation with claims arising out of provision of services (such as claims of ship classi-
fication companies …).
In any case, it is sufficient to prove an alleged maritime claim; it is not necessary to prove at the
arrest stage that the arrestor has a valid claim which is bound to succeed on the substantives
merits. It is sufficient to provide evidence of an alleged maritime claim. So a prima facie evidence
206
of a claim is enough.
In the meantime, if both parties (applicant and owner of the vessel) are Moroccans, Moroccan law
would be applicable. In that case that there is no restriction an per the nature of claims in relation
of which arrest can be granted.

Yes. Ship can be arrested whatever the flag she is flying.

Yes. The ship in relation of which the maritime claim arose can be arrested whoever is the debtor
and even if the claim is related to voyage or time charterers, bareboat charterers…
Thus, vessel can be arrested even if :
- she is under charterparty whilst the debt is related to Owners or previous charterers
- she is operated by Owners whilst the debt is related to previous charterers
In any case, security has to be put up on behalf of Master of the vessel as representative of Owners
and/or Charterers.
Claimants are entitled to arrest either the vessel in relation of which the maritime claim arose (who
ever is the debtor) or any other vessel in the same ownership that the said vessel.
Thus, it is possible to arrest sister ship vessels (i.e owned by the same person who was the owner
of the ship in connection with which the claim arises at the time the claim arose).
In the meantime, we should underline that in application of article 3.4 of Brussels convention, in
case the claim arose whilst the ship was under charter by demise, claimant may arrest on top of
the vessel in question, any other ship in the same ownership of the charterer by demise but no
other ship in the same ownership of the registered owner.
As per associated vessels, please see Q. 19 “lift of the corporate veil”.

The vessel in respect of which the maritime claim arose can be arrested even though she was
under bareboat charterparty or time-charterered.
In the meantime, as per article 3.4 of Brussels convention, in case the debtor is the charterer, clai-
mant can arrest either the vessel in respect of which the maritime claim arose or any other vessel
owned by charterer but not other vessels owned by registered owners.

Even tough Moroccan law provides such a possibility, practically speaking, counter security s is
never required.
No. From a procedural point of view, there is no difference.
Maritime liens are recognized by Moroccan law that provides a list of the privileged debt. Morocco
has not ratified any international convention on maritime liens.
your law firm?
Upon receipt of instructions and relevant documents, arrest order can be carried out within the
same day (during week days and court opening time).
No power of attorney is required under Moroccan procedure law.
Arrest application should just be supported by relevant documents proving the alleged maritime
claim and the relation with the vessel the arrest of which is sought.
At this arrest stage, no original documents are required.
207
As a general rule, Casablanca court accept to consider documents even if they are drafted in
english. In the meantime, it is remains preferable to provide at least a free translation of the most
relevant part of same.
However, other courts, such as Agadir and Tangiers, uses to demand a sworn translation of all
documents drafted in a foreing language.
Moroccan court would accept jurisdiction only in the cases listed in article 7 of Brussels convention
or if parties agree to provide competence to Moroccan court.

A vessel under arrest can be released in three different situations:
- If the claim in respect of which the vessel was arrested is settled :
If so, it is up to arrestors to grant a “mainlevée” on the basis of which owners have to seek before
the court a release order which has to be served on port authorities
- If security is posted:
If a bank guarantee is issued, arrestors have to grant in consideration of same a “mainlevée “
which enable arrestors to get a release order as described above.
If a cash deposit is put at the court, owners seek a release order under the procedure as described
in question 18.
- If the arrest is challenged before the court:
In order to be in position to get a release order on the grounds that the arrest order was not foun-
ded, owners should etablish that the conditions of the arrest as set out above are not met (if for
instance there is no maritime claim or that the vessel is not concerned by the claim)

Security can be put up in two different ways:
o Bank Guarantee :
In some cases, Arrestors accept P&I club LOU to be replaced by a bank guarantee within 8 days,
However, as a general rule, they are reluctant to accept so.
o Cash deposit :
The procedure is as follows:
· File an application seeking authorization to put the amount of the security at the court,
· Get the order giving such authorization
· Put the money at the court (either certified check or lawyer check)
· file proceedings seeking judicial release
· get a hearing set by the court
· notify to Opponents lawyer the convocation to the hearing
· after the hearing court issue a release order
· same has then to be served on port authorities by a bailiff

Security should cover the amount granted under the arrest order, which - in principle- does not
cover interest and costs.

Only, if accepted by arrestors which is almost never the case in Morocco.

If payment is carried out or security posted, the vessel can be released within one or two days.
If the arrest is challenged, it would take 3 to 4 days.
However, this is mainly for Casablanca. Before other jurisdictions such as Agadir and Tangiers, it
takes much more time.

Yes, as indicated in question 17.
208
There is no legal obligation for arrestor to start legal action on the merits within a specific time (in
so far as time bar limits are respected).
For the sake of completeness, it should be specified that a couple of years ago Casablanca court
was used to impose to arrestors the obligation to start legal action on the merits within 30 days
from the date of the arrest order. However, court stooped to do so on the grounds that as per ar-
ticle 7.4 of Brussels Convention such an obligation can be imposed only in case the court in which
the arrest was made has jurisdiction to decide the case on the merits.

A claim seeking remedies for wrongful arrest supposes that the arrest was made knowingly that
it was unlawful.
Thus, Moroccan courts are very reluctant to accept to grant remedies for wrongful arrest unless
malice of arrestor is evidenced.
As principle, sole the vessel in relation of which maritime claim arose or any other vessel in the
same ownership can be arrested.
However, given single ship company practice, Moroccan courts accept to pierce corporate veil
considering vessels owned by distinctive company as being under the same ownership if appli-
cant can prove that both vessels pertains in fact to the same economical entity (same addresses,
same management, same shareholders …).
Conservatory arrest can be converted into an executory arrest in so far as arrestor gets an enfor-
ceable title (e.g a definitive court condemnation on the merits).
This procedure including judicial sale is rather long and complicated. It would take not less than
a couple of months.
* Lawyer member of Paris Bar (2002) and Casablanca Bar (2006), Hakim LAHLOU is graduated in Master in law (2001) and hold two Postgra-
duate Diplomas (DESS and DEA) in insurance Law and Business Law (2002 and 2003) from the University of Paris 1 Panthéon SORBONNE.
Since 2006, Hakim LAHLOU is partner of Lahlou – Zioui & Associés, a leading law firm in Casablanca Morocco. Hakim LAHLOU is in charge of
the Shipping Department of LAHLOU – ZIOUI & Associés Law Firm, and as such, handles litigation and counsel cases in all shipping matters.
209
SHIP ARREST IN NETHERLANDS
By Peter van der Velden*
KIVELD INTERNATIONAL LAWYERS
pv@kiveld.nl
www.kiveld.nl
Koningskade 40, 2596 AA The Hague, The Netherlands
Tel: +31 [0]88 254 83 53
Fax: +31 [0]88 254 83 83

The Netherlands remain a convenient jurisdiction for ship arrests. The procedure for obtaining
leave for arrest starts with submitting an arrest petition to the court in whose jurisdiction the ship
is located or is expected to arrive shortly. These proceedings are ex parte. The petition can be filed
after office hours or on weekends.
The arrest petition should contain inter alia the full style of the claimant and debtor, the grounds
for the arrest, the nature and amount of claim, details of the ship, but also whether the claim is
contested by the (alleged) debtor and if so, on what grounds. To be attached are supporting
documentation (such as underlying contract, invoices, an overview of outstanding invoices, sum-
moning letters).
The bailiff enforces the arrest by serving the court order to the master and notifying the port
authority. The port authority will not allow the ship to order for a pilot without which the ship
can/may not leave the port. The claim amount for which the arrest is permitted is raised with a
certain percentage along a gliding scale between 10 and 30% over the capital claim amount to
cover future interest and costs while proceedings are pending.
A time limit is set within which the claim must be filed in main proceedings before the proper
court or arbitrators, which will usually be abroad, failing which the arrest will expire and the ship
considered released from arrest.
The arrest must be lifted immediately once the claim is settled or in case sufficient alternative se-
curity is provided. This is usually done in the form of a first class Dutch bank guarantee or letter of
undertaking by P&I Clubs of good standing. An arrest can then be lifted without the intervention
of the court by a simple telephone call to the bailiff.
The ship owner may apply for an injunction ordering release. Such proceedings can take place
on very short notice. A decision will follow shortly. The court decides whether the claim has suffi-
cient merit to justify maintaining the arrest. In practice, it is an uphill battle to convince the court
the claim is clearly without merit. Yet, this does not discharge the arresting party to make its claim
plausible.

The Netherlands is a party to the 1952 Brussels Arrest Convention since 1983. The provisions of
this Treaty are not incorporated into the Dutch Civil Code (like in some other countries), with the
effect that the 1952 Brussels Arrest Convention only applies when the arrest is sought of a ship
flying the flag of a country being a party to this convention.
Therefore, in cases where the 1952 Brussels Arrest Convention is not applicable, an arrest on a
ship is allowed for any, i.e. also non-maritime, claims against the debtor on any vessel (or other
asset for that matter) owned by him. In such case the vessel can be arrested more than once for
the same claim (which is not allowed under the 1952 Brussels Arrest Convention).
A distinction must be made between conservatory and executory arrests on a ship. Executory
arrests are a means of enforcing a judgment (or arbitral award). For such enforceable/executory
arrest, the arrest is allowed based on a judgment rendered by a Dutch court. Express permission
for such arrest is then not needed.
210
An executory arrest can be followed by public sale if the debtor is, despite the arrest, not willing or
able to comply with the judgment or award (see further in answer to question 20).

In case the Brussels Arrest Convention 1952 applies, the ship can only be arrested for maritime
claims as defined in article 1 of the convention.
If Dutch law applies and not the Brussels Convention, the ship can be arrested for any type of claim.

Yes, however if the ship is flying a flag of a Contracting State to the Brussels Arrest Convention of
1952, the ship can only be arrested for a maritime claim as defined in that treaty.

A ship may in principle be arrested only for a claim against the (legal) owner of the ship and not
for claims against any other party involved in the operation of the ship.
However, there are various exceptions to this rule. Subject to certain requirements, such as claims
against the bareboat charterer of the subject ship, cargo claims and also claims against the time-
charterer for services rendered to the ship in order to keep into operation (such claims for unpaid
bunkers, supplies).
Certain claims can attach to the ship for crew wages, salvage, general average, mortgage and the
like. For these claims, the ship may be arrested, even if it was sold to another after the claim arose.
State-owned ships may enjoy immunity, provided such ships are not commercially used.
Where the claim is against debtors which cannot be considered as ‘owners’, like a time-charterer,
an option could be an attachment on the ship’s bunkers/fuel reserve (rather than a ship’s arrest).
This so-called ‘bunker-attachment’ can be a useful tool to enforce payment for delivered bunkers
ordered, for example, by the time charterer of the ship. Under Dutch law, it is presumed bunkers
are owned by the time-charterer.
As said, as any asset of a debtor may be arrested in order to obtain security (or for that matter in
enforcement of a judgment or award), a sister ship may be arrested. Ships not owned by the de-
btor cannot be arrested, i.e. only under extra-ordinary circumstances whereby the court “pierces
the corporate veil”. If a ship is owned by more than one owner, the ship can still be arrested for a
claim against one of these “associated” owners.
In an important decision rendered in 2014 the Supreme Court widely interpreted the sister ship
/ bare boat charterer - clause of Article 3(4) last paragraph Brussels Arrest Convention 1952 (“a
person other than the registered owner”) in favour of the claimant seeking security. An arrest on
a sister ship based on Article 3(4) need not necessarily be on a bare boat charter.

See the answer under question 7.

Dutch courts have discretionary power to demand counter security but in practice this rarely hap-
pens. However, courts nowadays tend to be more receptive for such requests.
The common law concept of “maritime lien” is unknown in Dutch law. However, if a maritime lien
means that a certain claim is attached to the ship, i.e. even if the debtor is not the legal owner of
the ship, a ship may be arrested for such claim/lien.
The Netherlands is not a party to any conventions on maritime liens. However, claims based on
a maritime lien, having the legal status of being attached to the ship, may qualify for an arrest.
211
your law firm?
Generally between 3 and 8 hours depending on the complexity of the case. The petition will be
dealt with by the court immediately. Once the arrest is permitted the bailiff, if put on stand-by
beforehand, can then execute the arrest forthwith.
A Power of Attorney is not required when filing the arrest petition. An attorney-at-law is assumed
by law to duly represent his client.
The requirement of submitting original documents is under Dutch law very rare, i.e. only when
the opposing party contests the authenticity of the document. As original documents are not
required when applying for arrest permission, nor are notarisation and/or apostille.
In case of utmost dispatch, an arrest petition can even be filed electronically.
The arrest creates jurisdiction unless international conventions to which the Netherlands is affi-
liated provide otherwise. If the parties had agreed on another jurisdiction or arbitration, Dutch
courts must step aside.

By serving a writ of summons in summary proceedings on the arresting party, the ship owner can
demand immediate release of the ship from arrest. The court (where the ship is located) will set a
date for a hearing on very short notice. The more urgent the quicker the hearing. At the hearing
both parties’ lawyers will plead the case orally. A decision will be issued within a few days, if not al-
ready immediately after the hearing (although that is rare). The court will lift or maintain the arrest
by court order. The ship is then virtually released. To effectuate the court order, the arrestor’s
lawyer is supposed to instruct the bailiff to call the harbour authorities that the ship is free to go.

The type of security to be provided by the ship owner to the arresting party in release from arrest
is up to the discretionary powers of the court. But in practice this varies from a (first class Dutch)
bank guarantee, a deposit on an escrow account or a letter of undertaking given by a reputable
and financially strong P&I Club (“Club letter”). Standard forms are in use on the basis of which a
bank guarantee or Club letter is given.

Yes, the arresting party may add 30% (the “raise”) over the capital claim (which claim is not ex-
ceeding an amount of €300,000) for covering (future) interest and (procedural) costs. To claims
exceeding €300,000 applies a gliding scale, i.e. the higher the amount the more limited the raise
for covering interest and costs (still 20% for claims up to €1 mio).

Although case law is divided, technically, a court may reject a request for lifting an arrest despite of
a P&I LOU put on the table by the ship owner if the arresting party refuses to accept the P&I LOU
and demands a bank guarantee instead.
However, in practice P&I LOUs are very often accepted by the arresting party in release from
arrest, which means the court usually need not to decide whether P&I LOUs are considered suffi-
cient alternative security.
P&I LOUs are only acceptable when provided by a reputable and financially strong P&I Club.

If the court order lifting the arrest is in place or the parties have made an agreement (settlement
or alternative security), the arrest can be lifted within 5 minutes. There is no need for the court’s
intervention, the lawyer acting for the arresting party simply calls the bailiff who enforced the
arrest. The bailiff subsequently calls the harbour authorities that the ship is free to leave again.
212
The arrest can be contested/challenged in summary proceedings as described in question 17.
Usually, the ship owner’s lawyer holds the arresting party liable for wrongful arrest and demands
immediate release and if refused the ship owner can turn to the court with the request to issue a
court order to lift the arrest.
The time limit for filing suit after the arrest has been enforced must be at least eight (8) days after
the arrest was enforced. Usually a time limit for filing suit of one to two months is granted when it
concerns a foreign ship. Courts are free to determine this time frame.
In case the creditor needs more time for filing suit, or in case the parties are still negotiating a
settlement, the creditor can submit a request for an extension of the initial time limit to the Court.
The grounds for the extension of the time limit need to be mentioned in the request otherwise it
will be rejected by the Court.

Yes. If the claim on which the arrest is based appears not to exist or appears to be unfounded
(because it has been rejected later on in proceedings on the merits), the arrest is deemed to be
wrongful. The arresting party will be strictly liable for all damages suffered by the ship owner due
to the wrongful arrest.
This means the (wrongful) arrestor is by definition obliged to reimburse the ship owner for all
his damages and losses, like port dues, but even consequential damages, such as loss of hire (all
amounts to be increased with statutory interest). This is premised on the condition that the ship
owner renders sufficient evidence of the damages and losses incurred. Furthermore, the ship
owner has a duty to mitigate its damages.
Dutch law is rather strict in the definition of “ownership” and in acknowledging company structu-
res. As a result, Dutch courts are not easily inclined to “pierce the corporate veil”, i.e. treat compa-
nies as one in the sense that claims on the one can be recovered from the other company. Hence,
courts do not quickly allow a ship arrest for a claim against a third party although having close
links to the ship owner. However, this will be different if (foreign) law applicable to the question of
law provides grounds for piercing the corporate veil or for “identifying” two or more companies
as one and the same company.
If a ship has been arrested and the arrest is not lifted in injunction proceedings or by way of al-
ternative security, the arrest will be maintained until the creditor has obtained a title (judgment
or arbitration award). Once such title is obtained, the conservatory arrest will automatically be
transformed into an executory arrest. This may be followed by a judicial/public sale of the vessel
before the court, if so requested, in which case the court will determine the pre-conditions for
such auction.
Auctioning of a foreign seagoing vessel is subject to a detailed time frame and scheme of requi-
rements to be fulfilled prior to the day on which the ship is actually auctioned. These procedural
requirements and the bidding system aim at securing proper and fair auction proceedings with
the purpose to obtain the highest price for the vessel to be auctioned.
The auction notice must be published in the newspapers as designated by the court at least thirty
(30) days prior to the day of the auction. An auction can be organized between 30 and 40 days
after the title is obtained in which the creditor’s claim was adjudicated.
* Peter van der Velden is a founder and partner of Kiveld International Lawyers. His expertise, a result of 25 years of experience, includes
Commodity Trade, Distribution/Agency/Franchising, Shipping/Aviation, Letters of Credit, International Arbitration, Complex Commercial Litiga-
tion and Business Law. His strength lies in combining these specialized areas, which is illustrated in his ability to draft highly protective, yet
commercially viable, business contracts and his repeated success in handling disputes in International arbitration and other types of litigation.
Additionally, Mr. van der Velden has unique knowledge about ship arrest/release and steel trade disputes. He is an author of several published
trade, shipping and banking law articles and regularly speaks at seminars about his legal experiences.
213
SHIP ARREST IN NEW ZEALAND
By Kerryn Webster & Felicity Monteiro*
WILSON HARLE
firm@wilsonharle.com
www.wilsonharle.com
64 Fort Street, 1010 Auckland, New Zealand
Tel: 00649 915 5700
Fax: 00649 915 5701

Initial ship arrest in New Zealand can be fast and relatively inexpensive. It requires a notice and
application to be filed and does not require a hearing. An undertaking to meet the costs of the
Registrar is also required. The time and cost involved in continuing a claim against the ship, and
possibly obtaining judicial sale, will depend upon a range of factors.

New Zealand is not a signatory to any International Conventions dealing specifically with arrests.
Ship arrests in New Zealand are governed by the Admiralty Act 1973 and the High Court Rules.
No (although note the comments on freezing orders in response to question four, below).
Arrests in New Zealand are obtainedby filing in the High Court, a Notice of Proceeding relating
to an in rem claim against the vessel and an application for arrest, supported by an affidavit. The
proceeding must relate to a claim falling within the heads of jurisdiction set out in the Admiralty
Act 1973.

The New Zealand High Court also has jurisdiction to grant freezing orders over any type of asset
and, while such orders could extend to ships, the powers do not relate specifically to vessels.
It is harder to obtain a freezing order than it is to arrest a vessel: an application is usually made
without notice but a hearing is usually required and the applicant must demostrate a good ar-
guable case, show that there is a risk of dissipation of the relevant asset and give an undertaking
as to compensate the respondent for any damages caused by the order, before a freezing order
is made. In contrast, for an arrest, the applicant will to need file an in rem notice of proceeding,
with a concise statement of the nature of the claim and of the relief or remedy sought, an appli-
cation for a warrant of arrest and an affidavit in support setting out the details of the parties,
the ship and the claim. No real interrogation of the matters set out in the notice and affidavit is
carried out and the warrant for arrest is issued without a hearing. The applicant is required to
provide an indemnity to the Registrar but this is limited to the costs of arrest and does not cover
any damages suffered as a result of the arrest.

Arrest is available for claims coming under s 4(1) of the Admiralty Act 1973, which lists:
(a) any claim to the possession or ownership of a ship or to the ownership of any share therein:
214
(b) any question arising between the co-owners of a ship as to possession, employment, or
earnings of that ship:
(c) any claim in respect of a mortgage of or charge on a ship or any share therein:
(d) any claim for damage done by a ship:
(e) any claim for damage received by a ship:
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship
or in her apparel or equipment, or of the wrongful act, neglect, or default of the owners, char-
terers, or persons in possession or control of a ship or of the master or crew thereof or of any
other person for whose wrongful acts, neglects, or defaults the owners, charterers, or persons
in possession or control of a ship are responsible, being an act, neglect, or default in the naviga-
tion or management of the ship, in the loading, carriage, or discharge of goods on, in, or from
the ship or in the embarkation, carriage, or disembarkation of persons on, in, or from the ship:
(g) any claim for loss of or damage to goods carried in a ship:
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the
use or hire of a ship:
(i) any claim in the nature of salvage:
(j) any claim in the nature of towage in respect of a ship or an aircraft:
(k) any claim in the nature of pilotage in respect of a ship or an aircraft:
(l) any claim in respect of goods, materials, or services (including stevedoring and lighterage
services) supplied or to be supplied to a ship in its operation or maintenance:
(m) any claim in respect of the construction, repair, or equipment of a ship or for dock or port
or harbour charges or dues:
(n) any claim by a master or member of the crew of a ship for wages:
(o) any claim by a master, shipper, charterer, or agent in respect of disbursements made on
account of a ship:
(p) any claim arising out of an act which is or is claimed to be a general average act:
(q) any claim arising out of bottomry:
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being or have
been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or
any such goods after seizure, or for droits of admiralty.

Yes.

For some claims, yes, except for foreign state immunity. For certain claims, however, the debtor
against whom the in personam claim arises must also be the owner or charterer of the vessel at
the time that the action is brought.
For some claims a sister ship may be proceeded against. Claims which cannot be transferred to
a sister ship are claims for:
(a) possession or ownership;
(b) claims between co-owners;
(c) claims in respect of a mortgage; and
(d) claims for forfeiture, restoration or droits of admiralty.
For other claims falling within s 4(1) of the Admiralty Act, a sister ship may be proceeded against
if the person liable on the claim was owner or charterer of the ship when the cause of action
arose and was the beneficial owner or demise charter of the other ship when the action was
brought.

A ship can be arrested if the relevant person was the owner or charterer, or in possession or
control of the ship, when the cause of action arose and, when the action was brought, was
beneficial owner or demise charterer of the ship. Arrest of a ship that is under time charter is not
available in relation to claims against the time charterer.
215
No. However, a party seeking the arrest of a ship is required to provide an indemnity to the Re-
gistrar for the costs likely to be incurred by the vessel to be arrested, such as harbour dues and
crew expenses. The Registrar requires some payment upfront to cover initial arrest costs and
then to be kept in funds in anticipation of subsequent costs.
Yes. A maritime lien entitles the claimant to arrest the relevant vessel regardless of beneficial
ownership. For other claims, the person against whom the claim arises must also be owner or
demise charter at the time the action is brought.
Yes, for certain types of claims, but they are defined and recognised under the Admiralty Act,
not an international convention.
your law firm?
Provided that all of the necessary information (including translations if required) is available, the
proceeding can be prepared and the application for arrest made on the same day. It is then
in the hands of the Court to arrest the vessel, although this is usually done within a few days.
No. See 15 below.
documents require notorisation and/or apostille, and when are they needed?
In order to obtain the arrest of a vessel, a notice of proceeding, application for arrest, supported
by affidavit, and filing fee must be filed in the High Court Registry. The required documents are
standard form documents and, while originals of these documents need to be filed, they can
be prepared by the New Zealand law firm instructed. Usually, the documents would need to be
physically filed with the Court but in cases where there is extreme time pressure, the documents
may be accepted electronically in the first instance. No other original documents are required
nor do any documents need to be notarised. A statement of claim which sets out the nature of
the claim must also be filed, but this can be done after the vessel has been arrested.
Yes. There may, however, be issues of jurisdiction if the claim is contract based or if a cross-
border insolvency is involved.

A party interested in a vessel under arrest can request the release of the vessel by filing in the
court a standard form setting out the grounds on which the release is sought.The registrar must
ascertain whether there is a caveat against release in force before releasing the vessel and, if
there is, the party seeking release must give notice to the caveator requiring that the caveat be
withdrawn. The vessel will not be released until the caveat has been removed. The registrar
may issue a release either upon an order of the court or with the consent of all the other parties
to the action.The registrar must issue a release if the party who sought the arrest files a notice
withdrawing the warrant of arrest before an appearance is entered in the action concerned.
Before the vessel is released, the party who sought the arrest must either pay the costs due in
connection with the custody of the vessel while under arrest or undertake to pay those costs.

A vessel may be released from arrest if the amount claimed in the relevant notice of proceeding
together with costs of issue and execution of the warrant of arrest is paid into court or if security
for those amounts is given to the satisfaction of the registrar. On the application of any party,
the court can determine the amount and form of the security required.

A plaintiff is normally entitled to security on the basis of its reasonably best arguable case, to-
gether with interest and costs.
216
International Group P & I Club letters of undertaking have been established as an acceptable
form of security in New Zealand.Other forms of security may also be accepted on proof of suffi-
cient means.

Once the request for release has been filed and security to the satisfaction of the registrar, or as
determined by the court, has been paid, the vessel will normally be released immediately. If the
parties are unable to agree on the amount of security, there may be some delay for an applica-
tion to determine the amount and form of security to be heard.
22. Is there a procedure to contest the release?

There is no specific procedure set out in the Admiralty Act or the High Court Rules to contest a
release. Any party may make an application to the court to determine the amount and form of
security if they are not satisfied with the amount agreed or set by the registrar but the applica-
tion will need to be made before the registrar has issued the release. Accordingly,a party that
is interested in a vessel under arrest is likely to want to file a caveat against release, intervene in
the proceeding and file their own in rem claim against the vessel to ensure that notice is given
when a request for release is made and that they are able to seek to be heard in relation to that
request.
If the defendant enters an appearance following the arrest, then a claim must be filed with 10
working days. The Courts will apply relevant limitation provisions to any claims.

Yes, where the party arresting has acted in bad faith or with gross negligence. It is not enough
that the claim is made on a mistaken basis.
Only in special circumstances where a failure to do so would cause substantial injustice.
26. Is it possible to have a ship sold pendentelite; if so how long does it take?
Yes. The time will depend on the urgency of the claimant’s application, whether the application
is opposed, whether there is a ready market for the vessel and whether the ongoing costs of
arrest are likely to exhaust the security in the ship.
*Kerryn Webster is a Senior Associate at Wilson Harle. Kerryn is an experienced civil and commercial litigator with considerable trial ex-
perience. She has broad experience acting in arange of civil, commercial, and corporate criminal matters.She has particular expertise in
maritime, breach of contract, international trade and public law disputes. She is currently Chair of the New Zealand branch of the Maritime
Law Association of Australia and New Zealand and is listed as an “Associate to watch” in Chambers and Partners 2014 and 2015 Asia Pacific
Rankings for Shipping.
*Felicity Monteiro is a Senior Associate at Wilson Harle. Felicity is an experienced civil and commercial litigator andhas assisted clients with
a broad range of civil and commercial issues. She has developed expertise in telecommunications, regulatory and competition law as well as
shipping and admiralty law. She is also listed as an “Associate to watch” in Chambers and Partners 2013, 2014 and 2015 Asia Pacific Rankings
for Shipping. Felicity has completed an LLM at the University of Auckland and was instrumental in establishing the New Zealand branch of the
Women’s International Shipping & Trading Association (WISTA) in 2014.
217
SHIP ARREST IN NIGERIA
By Mr. Lawrence Fubara Anga
ÁELEX*
lfanga@aelex.com
www.aelex.com
7th Floor, Marble House
1 Kingsway Road, Falomo-Ikoyi, Lagos
Tel: +234 1 4614057
Fax: +234 1 2692072

Nigerian law provides a simple uncomplicated procedure for the arrest of ships thereby making
the country a suitable and favourable jurisdiction for such proceedings.
Jurisdiction in respect of admiralty matters is vested exclusively in the Federal High Court in the
first instance. Appeals in respect thereof lie to the Court of Appeal and the Supreme Court. The
court can order the arrest of a vessel in order to confer jurisdiction upon itself or to provide pre-jud-
gment security for the applicant. The jurisdiction of the court applies to all maritime claims howe-
ver arising and to all ships irrespective of their places of residence or domicile of their owners.

Nigeria has acceded to the International Convention for the Unification of Certain Rules Relating
to the Arrest of Ocean Going Vessels, 1952 simply referred to as “The Arrest Convention“ but has
not promulgated it as municipal law so arrest is under extant municipal law.

The Admiralty Jurisdiction Act, 1991 and the Admiralty Jurisdiction Procedure Rules, 2011, govern
admiralty matters. The Act provides for two general classes of maritime claims namely: proprietary
maritime claims and general maritime claims. A ship may be arrested pursuant to an action in rem
brought against such ship in respect of a proprietary or general maritime claim.
No. Arrests can only be effected pursuant to an action in rem brought against the ship or a sister
ship.

A person seeking to arrest a ship in Nigeria’s territorial waters must satisfy the court that his claim
qualifies as a ‘Maritime Claim’ as define in §2 of the Admiralty Jurisdiction Act, 1991. This generally
means that it must be a proprietary maritime claim or a general maritime claim.
1. Proprietary maritime claims relating to the possession of a ship, title to or ownership of a ship or
a share in a ship, mortgage of a ship or of a share in a ship, mortgage of a ship’s freight or claims
between co-owners of a ship relating to the possession, ownership, operation or earning of a ship.
Also claims for the satisfaction or enforcement of a judgment given by the Court or a court (inclu-
ding a court of a foreign country) against a ship or other property in an admiralty proceeding in
rem are maritime claims.
2. General maritime claims includes claims for damage done or received by a ship (whether by
collision or otherwise), claims for loss of life, or for personal injury, sustained in consequence of a
defect in a ship or in the apparel or equipment of a ship as well as arising out of an act or omission
of the owners or characters of a ship.
Prior to applying to the court for an order to arrest a ship, the applicant must conduct a search of
the caveat book to ascertain whether there is a caveat against arrest in force with respect to that
ship. Where such a caveat exists, the applicant must inform the court of same.
Once an applicant has ascertained that his claim falls within the meaning of a maritime claim as
defined by the Act and that there are no caveats registered against the ship, he may commence
proceedings by filing an action in rem at the Federal High Court in the judicial division covering
the port or area where the ship is located. He may at the same time file an ex-parte application
218
disclosing a strong prima facie case for the arrest of the ship. This application must be supported
by an affidavit deposed to by the applicant, his counsel, or his agent stating the following:
i. The nature of the claim.
ii. That the ship is within the jurisdiction of the court or is expected to arrive within the jurisdiction
within three days.
iii. That the ship may leave the jurisdiction of the court at anytime thereby depriving the applicant
of his pre-judgment security.
The applicant is also required to provide with the application the following:
i. A statement of claim
ii. Exhibits supporting the claim
iii. An undertaking to indemnify the ship against wrongful arrest.
iv. An undertaking to indemnify the Admiralty Marshal in respect of any expenses incurred in
affecting the arrest.
v. An affidavit of urgency stating facts why the application must be heard expeditiously.
Although, at this stage of the proceedings, the court may admit photocopies of exhibits and un-
dertakings, the applicant would subsequently be required to provide the originals or certified true
copies. It is important to note that Nigerian courts will entertain an application for an arrest only
when the ship has entered its jurisdiction. So where a prospective applicant is aware that a ship
sought to be arrested is bound for a Nigerian port, it is advisable for him to instruct his counsel in
Nigeria as soon as possible so that the requisite processes can be prepared and filed immediately
the ship is within three days of entering Nigerian territorial water.
An arrest order is usually served along side an arrest warrant and the writ of summons and sta-
tement of claim by affixing sealed copies of the processes to a mast or some other conspicuous
part of the ship. Copies of the said processes must also be delivered to the appropriate officers of
the Nigerian Port Plc, for example the Chief Harbour Master, Traffic Manager and Port Manager.

Yes. A ship can be arrested irrespective of its flag, as long as it is within Nigerian territorial waters.

No. In order to sustain an arrest, the claimant has to show that at the time his application is
brought before the court the person liable to him otherwise known as the ‘relevant person’ is the
beneficial owner or the demise charterer of the ship.
A sister ship may be arrested in place of the offending ship if it is found within Nigerian territorial
waters and if the ‘relevant person’ is also the beneficial owner in respect of all the shares in the
sister ship.

The Admiralty Jurisdiction Act is silent on Time-Charters. However under §4(a) of the Act an ac-
tion in rem may be brought against a ship where the ‘relevant person’ is the demise (bareboat)
charterer of the vessel.

An applicant for an arrest order may be required to give security for costs. The court will order
security for costs where the claim is in excess of Five Million Naira or its foreign currency equivalent
or where the plaintiff has no assets in Nigeria.
The form of security required is usually a deposit of the sum specified by the court; or a guarantee
supplied by a Protection and Indemnity Club (P & I Club), an insurance company or a bank. In
determining the quantum or nature of security to be provided, the court shall have regard to all
the circumstances of the case and shall not restrict itself to the costs of the legal proceedings.
Where the claim is one in respect of a maritime lien (a lien for salvage, damage done by a ship,
wages of the master of a ship or other crew member and master’s disbursements), or a claim in
respect of a proprietary maritime claim (relating to the possession of a ship, title to or ownership of
the ship or a share in the ship, a mortgage of a ship or a share in a ship, or a mortgage of a ship’s
freight), or a claim as between the co-owners of a ship as regards the possession, ownership,
operation or earning of the ship, an admiralty action in rem may be brought against the ship or
219
property in connection with which the claim arises. In this instance, the ownership of the vessel
is not material.
Yes. Nigeria recognises maritime liens by virtue of §5(3) of the Admiralty Jurisdiction Act which
provides for a closed list of maritime liens such as liens for salvage; or damage done by a ship; or
wages of the master or of a member of the crew of a ship; or master’s disbursements.
Furthermore, Nigeria is a signatory to the International Convention on Maritime Liens and Mort-
gages 1993 but has not promulgated the Convention as municipal law.
your law firm?
An arrest order can be obtained within 24 hours of filing the requisite processes.
There is no need to provide a POA, however copies of the documents listed in answer 5 above
have to be presented to the court in support of the claim.
Original, hard copies of all the documents are required, but do not have to be notorised. Docu-
ments cannot be filed electronically.
Yes. Nigerian courts will accept jurisdiction over the substantive claim once a vessel has been
arrested within Nigerian territorial waters.

Where owners have placed acceptable security for the release of a ship, the court may order re-
lease of the ship upon request made by the owners for release of the ship.
In some cases, the arrestor could request for release of the ship, where owners have placed accep-
table security for the release.
In some cases, the court may order release of a ship under arrest, if owners successfully challenge
an order of arrest.

Security such as bank guarantees, P and I Club LOUs and insurance bonds are acceptable to be
placed for the release of ships.

Yes, security must cover the claim, interest and costs.
20. Are P and I LOUs accepted as sufficient to lift the arrest?

Yes, P and I LOUs are accepted as sufficient to lift the arrest.

A ship can be released within 24hours of filing an acceptable security.

Yes, there is a procedure to contest the arrest.
An order for an arrest will not be granted unless the ex parte motion for a warrant of arrest is ac-
companied by the statement of claim and supporting documents. There is accordingly no waiting
period between the arrest taking place and the commencement of the substantive action.

An applicant for an arrest order is liable to the ship owner for damages arising from a wrongful
220
arrest. A ship owner has three options to with:
i. He may apply to court within three months from the termination of the suit for general damage
of such amount as the courts may deem a reasonable compensation; or
ii. He may make an oral application for damages immediately after judgment. The court in this
instance is entitled to summarily assess the damages due to the ship owner; or
iii. He may also bring an action for wrongful arrest claiming all the damages arising from the arrest,
which he can establish.
The Nigerian courts recognize and exercise the powers to pierce or lift the corporate veil, in this
regard an action may be commenced against a sister ship in respect of general maritime claims.
However, the ship in relation to which it is a sister ship must be identified in the writ of summons.
The writ of summons may identify more than one ship as a sister ship.
The court may, on application by a party before final judgement in a proceeding, order that a ship
that is under arrest in the proceeding be sold. Where the ship is deteriorating in value, the court
may at any stage of the proceeding, either with or without application, order it to be sold (order
16 rules 1 & 3 Admiralty Jurisdiction Procedure Rules).
The sale of a ship ordered to be sold shall be by auction 21 days after the advertisement shall have
been placed in two national daily papers by the Admiralty Marshal.
* ÁELEX is the leading Nigerian firm with expertise and institutional depth in Transportation. Our Maritime practice has evolved with develo-
pments in the sector, gaining us invaluable experience and capabilities. We offer various shipping services from ship finance to corporate,
regulatory compliance and litigation.
Members of our Maritime team are located in Lagos and Port Harcourt in Nigeria and Accra, Ghana with an aggregate of over 30 years
experience in maritime law. We act as counsel to ship-owners, P&I clubs, charterers, operators of ships and other offshore assets, insurance
companies, financial institutions, oil and gas companies, port owners and operators.
ÁELEX advises on ship and mortgage registration, asset financing for off shore oil and gas operations, ship registration, ship finance and lease
transactions. Our expertise also extends to claims arising from charter parties, collision, cargo and demurrage, both at arbitration and in the
courts of law in Nigeria and Ghana. We are regularly instructed to undertake subrogated claims on behalf of insurers, arrest and release of
vessels as well as negotiating the settlement of claims.
221
SHIP ARREST IN NORWAY
By Kyrre W. Kielland & Audun L. Bollerud*
Advokatfirma Ræder DA
kwk@raeder.no
en.raeder.no
P.O. Box 2944, Solli, N-0230 Oslo, NORWAY
Tel: (+47) 23 27 51 57
Fax: (+47) 23 27 27 01

Arresting a ship in Norway can be arranged quickly and at a reasonable cost. Norwegian courts
do not require the claimant to provide any documents in original, and legal counsel does not
need to present a POA from the claimant. Further, Norwegian courts rarely request translation
of documents written in English or any of the Scandinavian languages.
In order to arrest a vessel under Norwegian jurisdiction, the claimant must submit an arrest
application to a District Courtwith jurisdiction, i.e., the vessel’s current port or the vessel’s port
of call. If the defendant is Norwegian, the claimant mayalso submit its arrest application to the
District Courtof the defendant’s office or residence.
In order to arrest a vessel, several conditions for arrestmust be provenupon a balance of pro-
bability. Most importantly, the claimant has to prove that it has a maritime claim against the
shipowner as debtor. Norwegian law does not acknowledge actions against the vessel “in rem”,
and the arrest will not succeed unless the shipowner is also the debtor.
Another peculiarity of Norwegian arrest law is that the claimant has to prove upon a balance
of probability that it has a “reason for arrest”. Pursuant to the Norwegian Dispute Act the court
may only award arrest if the behavior of the debtor gives reason to fear that the enforcement
of a claim would otherwise be made impossible or substantially more difficult, or if enforcement
has to take place outside Norway. Consequently, the court has discretionary power to deny an
arrest petition if there is no “reason for arrest”.
The courts will usually consider the arrest petition on the basis theclaimant’s writ of claims
without a defence reply or a hearing, as time will often be of major importance. If the applica-
tion succeeds, the courts will notify the local enforcement authorities, which will secure that the
ship does not leave the harbor, and that the arrest is reported to the ship register. The shipow-
ner may subsequently request a hearing to dispute the claim or the “reason for arrest”, and in
case of wrongful arrest, claim damages from the other party.

Norway is a party to the 1952 Arrest Convention, which is incorporated into Norwegian law
through the Norwegian Maritime Code and the Norwegian Dispute Act. Norway has reserved
its rights in accordance with Art 10 (b).
Norway is signatory to, but has not yet ratified the 1999 Arrest Convention. We do not expect
Norway to ratify the 1999 Arrest Convention in the near future.

There is really no alternative to the normal procedures for arrest of ships. However, Norwegian
flagged vessels may be subject to so-called “register arrest”, where the arrest is registered as an
encumbrance in the ship register, but without physically seizing the ship. Although normally
not as effective as a physical arrest, this might be an option e.g. if the claim is not a maritime
claim, as this will provide some security against the owner’s legal dispositions of the vessel.
Further, it might reduce the claimant’s exposure to liability for wrongful arrest as the vessel will
still be able to sail.
Finally, the claimant may file for arrest of bunkers or cargo if it does not have a maritime claim
against the owner and therefore is unable to arrest the ship as such. This may have effect until
the bunkers or cargo is loaded off the ship.
222
With the exception of freezing orders related to bankruptcy proceedings, no. However, a vessel
may serve as security for a claim in other ways than arrest. One possibility is by way of liens or
mortgages, which may also give the creditor the right to enforcement. Such security can be
based on contract or by statute, or more commonly when considered as an alternative to arrest,
by order of the enforcement courts.
The general right of detention/retention may also give security for a claimant in physical pos-
session of the vessel, e.g. the yard’s right to detain the vessel in its docks until its claims have
been paid in full.

According to the Maritime Code section 92, a ship can only be arrested if the claim is a maritime
claim. The definition of “maritime claim” in the Norwegian Maritime Code section 92 includes all
maritime claims listed in the 1952 Arrest convention article 1(1), with the addition of claims for
compensation after wreck removal.

Yes. Norwegian courts will also recognize maritime liens established in accordance with the law
of the flag.

No. Norwegian law does not acknowledge action “in rem”, and as a general rule the owner
of the ship has to be the debtor of the maritime claim (with the exception for certain maritime
liens).
As a general rule, the maritime claim must be related to the ship. Nevertheless, and as allowed
for under the Arrest Convention, the Norwegian Maritime Code section 93 allows for sister
ship arrest as long as the vessels have the same legal entity as direct owner. It is not possible to
arrest ships with associated ownership, e.g. two ship owning companies with the same holding
company.

In principle, this does not affect the possibility of taking arrest. As mentioned above, an arrest
will only be granted if the debtor is also the owner of the ship. The charterer therefore has to
respect an arrest award related to claims against the shipowner. The claimant, on the other
hand, may not file for arrest on basis of a claim against the charterer, unless the ship owner is
deemed jointly liable. Bunker invoices issued “to the charterer and/or vessel and/or owner” (or
similar wording) will normally not be regarded as a claim against the shipowner in this respect.

Section 33-3 of the Norwegian Dispute Act empowers the courts with discretion to grant arrest
subject to the claimant depositing counter-security. The security is fixed at the courts discretion
based on the potential liability in case of a wrongful arrest.
No. Section 92 (2)(q) of the Norwegian Maritime Code exempts maritime liens from the defini-
tion of a maritime claim, and theoretically it is not possible to arrest a ship on basis of maritime
liens. Nevertheless, a claim secured by a maritime lien will normally be within the definition of a
maritime claim and thus serve as basis of an arrest on that basis.
Yes, maritime liens are recognized under Norwegian law. The provisions on maritime liens are
found in the Maritime Code section 51, and are similar to those found in the 1967 Maritime Lien
Convention although Norway is not a signatory.
your law firm?
AdvokatfirmaRæder will be able to arrange for arrest of a vessel in any Norwegian port within
24 hours after receiving necessary documentation by e-mail.
223
Norwegian courts will not require claimant’s legal counsel to present a POA. We normally ad-
vise claimants to submit copy of written evidence, e.g. copy of invoice, claims letter etc. This in-
creases the chance of a successful arrest, as in most cases the claimant must prove the substan-
tive claim on a balance of probabilities. Evidence in languages other than English, Norwegian,
Swedish or Danish, may have to be translated.
Norwegian courts do not require any documents to be submitted in original, notarised or le-
galized. The arrest petition, however, has to be signed by the claimant or its legal counsel and
delivered to court by hand or regular mail. In practice however, the arrest petition including
evidence will be filed electronically to the court online (limited to a few courts), by e-mail or
facsimile for the court’s immediate attention.
Yes, unless the parties have entered into a legal and valid agreement on venue or arbitration,
the arrest court will accept jurisdiction over the substantive claim.

There are several procedures to release a ship from arrest. Firstly, a release may be requested
against payment or security for the claim being basis for the arrest award. Secondly, release
may be sought by disputing the arrest award byrequesting a subsequent hearing on either the
substantive claim, or the claimant’s “reason for arrest”, or both. It normally takes some time to
obtain a release on basis of disputing the arrest award, unless the shipowner is able to provide
evidence of an obviously wrongful arrest. Thirdly, the arrest will lapse one month after the clai-
mant has obtained an award on the substantive claim, unless the claimant has taken legal steps
in order to enforce the judgment. If not released yet, the arrest will lapse once the claimant has
been awarded an enforcement lien for its substantive claim.

Norwegian courts only accept cash deposit and unconditional bank guarantees issued by a
Norwegian financial institution.

The security has to cover the full amount of the claim including interest and costs, provided that
interest and costs are included in the claim.

Norwegian courts es not accept LOUs as security for lifting an arrest. Claimants, however, may
accept LOUs from reputable P&I clubs as sufficient security to agree to lift the arrest.

The vessel will be released immediately upon the lapse or lifting of the arrest. The time it takes
from an arrest award to actual release depends on which alternative release procedure is
applied. Normally the ship should be allowed to sail within hours following evidence of secu-
rity. In case the ship owner decides to contest the arrest, it may take weeks and even months.

Yes, the defendant may request a hearing in which he may contest the claim or the claimant’s
“reason for arrest”.
The defendant can request the courts to fix a time-limit by which the claimant must institute
legal proceedings. If no such time-limit has been fixed by the court, the period will be one year
from the issue of the arrest order. If proceedings are not instituted within the time-limit, the
arrest order will be quashed. The courtmay, at its own discretion, extend the one-year time limit
upon request by the claimant.
224
Yes. Pursuant to section 32-11 of the Norwegian Dispute Act, the claimant may be held strictly
liable for all of the defendant’s economic loss if the claim did not exist at the time of arrest. The
same applies if the claimant by negligence or intent has given wrongful or misleading informa-
tion regarding the “reason for arrest”.
As a general rule, the shareholders of a company with limited liability will not be personally
liable for the obligations of the company.
Pursuant to the Norwegian Limited Liability Companies Acts section 17-1, however, the
company’s Directors, general manager and shareholders may be held liable in damages in case
of own or contributory negligence or willful misconduct.
In addition, and although there is no legal precedence yet, the Norwegian Supreme court has
in previous cases stated that piercing and lifting the corporate veil cannot be ruled out “in ex-
ceptional circumstances”.
When a ship has been arrested, the owner does no longer have legal rights to dispose of the ship.
On the other hand, an arrest does not give the claimant the legal rights to dispose of the ship or
seek enforcement in and to the ship. Consequently, enforcement is subject to a final award on
the merits of the substantive claim and thereafter proper enforcement proceedings. However,
the courts can agree to a sale “pendente lite” if the arrest holder requests it, and it is necessary
to avoid substantial decrease in the value of the ship.
*Kyrre W. Kielland has, inter alia, extensive experience with financing and other transactions within shipping, aviation and real estate.
He regularly provides advice within contract law, maritime law and insurance law (including liability insurance).
Prior to joining Ræder as partner in 2014, Mr. Kielland worked as senior associate (No: senioradvokat) with Kluge Advokatfirma. By
his secondment with Eksportkreditt Norge AS in 2012/2013, he gained precious experience with export financing. Mr. Kielland wrote
his master thesis as research assistant with the University of Oslo, Department of Private Law, where he graduated as Master in Law
in 2008.
Mr. Kielland has contributed to several Norwegian and international publications, and is regularly appointed external examiner for
master students at the University of Oslo.
225
SHIP ARREST IN OMAN
By Omar N. Omar*
o.omar@tamimi.com
www.tamimi.com
Regus Business Centre LLC, Building 1340, Block 40
Plot No. 183, Street 327, PO Box 395 - P.C. 118, Muscat
Tel: +96893332341

The Omani Maritime Code regulates the conservatory arrest of ships. The arrest application must be sub-
mitted to the Court of First Instance. The Court normally considers the application of arrest of a vessel on a
prima facie basis and the arrest order is usually rendered ex-parte on the date of the filing of the application
for arrest (or the earliest thereafter) provided that the claim is one of the maritime debts listed in the Omani
Maritime Code (please see below question No. 5). The arrest order may be challenged but this procedure is
usually complex and lengthy and the quickest way to lift the arrest is to put-up a security (please see below
question No. 18).

Oman is neither a party to the International Convention on the Arrest of Seagoing Ships of 1952 nor to the
International Convention on the International Convention on the Arrest of Ships of 1999.

The ship could be arrested in Oman in the context of either a precautionary seizure procedure or an en-
forcement procedure commenced against her. The main difference between both procedures is that the
applicant is not required to have an execution deed against the ship in order to commence precautionary
arrest proceedings against the ship.

There are no alternatives for the arrest of ships in Oman as the Maritime Code regulates the arrest of ships
in specific which prevents the applicant from relying on other laws in Oman.

In order to arrest a vessel in the Omani territorial waters, the creditor must have a “maritime debt” against
the ship. Article 188 of the Omani Maritime Code defines maritime debts as follows:
1. Damages caused by the vessel due to collision or other reason.
2. Losses of lives or physical injuries caused by the vessel or which has originated from utilization.
3. Aid and rescue.
4. Contracts for utilizing or chartering the vessel under a charter party or other contract.
5. Contracts for the carriage of goods under a charterparty, bill of lading or other.
6. Complete loss of or damage of goods and luggage carried by the ship.
7. General average.
8. Towage of ship.
9. Pilotage of ships.
10. Supply of equipment and tools which are necessary for the ship’s utilization or maintenance.
11. Building, repairing and equipping of the vessel as well as the ship as well as the expenses incurred
thereon while in docks.
12. Wages of masters, officers and sea men and others who work on the hip under articles of agreement.
13. Sums spent by the master, shippers, charterer or agents for the ship’s account.
14. Dispute over the ownership of a vessel or dispute over single ownership.
15. The rights in the profits resulting from her utilization.
16. Marine mortgage, especially every mortgage the origin of which enables the application of limitation
of liability of the owner or her manager.
226
Yes. A ship anchored within the Omani territorial waters can be arrested irrespective of the flag she is flying.

Pursuant to Article 189 of the Omani Maritime Code, any debtor whose debt is qualified as a maritime debt
may arrest the ship anchored in Omani territorial waters.
The arrest of sister ships in Oman is possible as long as the sister ship was owned by the debtor at the time
the debt was incurred. However, if the debt resulted from a dispute over the ownership of the ship, the
rights in the profits resulting from her utilisation and maritime mortgage (see above bullets No. 14, 15 and
16 listed under question No. 5).
Regarding the arrest of associated ships, there is a great degree of uncertainty as, for the arrest to be suc-
cessful, we need to prove to the judge the close link between the entity owning the ship that incurred the
debt and the entity owning the associated ship.

The Omani Maritime Code gives the creditor of the charterer who was given control over the nautical na-
vigation of the ship the right to arrest the ship for a debt resulting from the charterer’s actions. In addition,
the creditor has the right to arrest any other ship owned by the charterer.

No counter-security is required in Oman.
In practice, there is no difference between the arrest of a ship for a maritime claim and the arrest of ship
for a maritime lien.
Maritime liens are enumerated in Article 156 of the Omani Maritime Code. This Article reads:
“Lien right shall be considered so if it includes the vessel, the freight of a voyage during which the lien has
originated, the accessories and the freight due on the day of the commencement of the voyage according
to the following:
1. The legal expenses which were spent for keeping, sale and distribution of the price of the vessel, loading,
lighthouses port and other fees as well as taxes of the same type, pilotage fees, indemnities for the damages
sustained by port installations, decks and guarding and maintenance charges from the time of the vessel’s
entry into the last port.
2. The debts arising out of the terms of agreement of the master, seamen and others who work on the
vessel under a contract.
3. The salvage monies payable for the aid and rescue as well as the vessel’s share in the general average.
4. The indemnities payable for collisions, other navigational accidents, physical injuries to passengers, sea-
men and others who work on the vessel under a contract and complete loss or damage of goods and
luggage.
5. The debts arising out of the contracts concluded by the master and the operations he carries out, within
the scope of his legal powers, outside the vessel’s port of registration for an actual need which is required
for the vessel’s maintenance or continuing with the voyage, whether the master is the owner of the vessel
or otherwise and whether the debt is payable to him, suppliers, lenders, persons who repaired the vessel
or other contracted parties.”
Assuming that all forwarded documents have been translated into Arabic by a sworn translator in Oman,
the ship can be arrested within 48 to 72 hours.
A POA duly notarised and legalised up to the Omani Embassy must be submitted to the competent Court
with the arrest application. In addition, we need to attach to the arrest application all the documentation
supporting the claim against the ship. In this context it must be noted that the official language in Oman
is Arabic which means that all documents in foreign language must be translated into Arabic by a sworn
translator in Oman prior to submission.
227
The documentation supporting the claim must be attached to the application and electronic filing is not
available. As mentioned under question 14 above, if these documents are in foreign language they must
be translated into Arabic language. Only official documents must be legalised up to the Omani Embassy at
the place of issuance and then legalised by the Ministry of Foreign Affairs in Oman.
The Omani courts will not accept jurisdiction over the substantive claim once the vessel has been arrested
if the parties have agreed to give jurisdiction to a foreign court.

The release of the ship by the applicant is done by virtue of a simple memorandum submitted to the court
in this regard. The decision issued must be served upon the ship and the harbour master or the coast
guard. If the defendant to the application wants to release the ship then he must deposit the security re-
quested by the judge and request from the judge the release of the vessel.

The security that needs to be placed to release the ship is either a bank guarantee issued by a local bank
or cash deposited in the court.

The security needs to be equal to the amount included in the arrest order which will be assessed by the
judge.

P&I LOUs are unacceptable by Omani Courts.


The defendant to the arrest application may file a grievance before the Court who issued the arrest order.
Upon hearing the grievance, the Court may make an order lifting the arrest order and such judgment shall
be enforceable through the normal channels. The grievance shall be submitted within seven days from the
date of issue of the arrest order.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action on
the merits?
After the execution of the arrest, a period of 10 days is granted in order for the claimant to take legal action
on the merits.

There are no legal precedents on the liability for the wrongful arrest of a ship. However, under the general
principles of civil law, a claim for wrongful arrest may succeed if the party claiming indemnification can
prove the bad faith of the arresting party and its losses arising from the arrest.
This concept is not recognised in Oman.
Such a sale could be authorized only if the ship is under the risk of a quick deterioration and in a situation
that endangers third parties.
228
SHIP ARREST IN PANAMA (Questions 1 to 9)
By Francisco Carreira-Pitti, Senior Partner*
CARREIRA PITTI P.C. ATTORNEYS
paco@carreirapitti.com
www.carreirapitti.com
55 th St. No. 225, Carpit Bldg., El Cangrejo
Panama City 6-10100
Tel: (507)269-2444
Fax: (507)263-8290

The Republic of Panama and the Panama Canal are brand names in international shipping. The Panamanian
Ship Registry is the largest in the world in number of vessels as well as tonnage. The Panama Canal is a focal
point since there are over 21,000 ships calling Panamanian Ports every year and over 14,000 of them transit
the waterway.
Until March, 1982, a United States Federal District Court for the Canal Zone (1) handled maritime claims at
the Panama Canal. Since then, as a result of the Panama Canal Treaty Torrijos-Carter, Panama took over its
maritime jurisdiction and the Maritime Court of Panama was created by Law 8 of 1982, which also adopted
procedural rules closely patterned following the U.S. Rules of Civil Procedure. Since 1982 Maritime Court of
Panama functioned as a specialized tribunal where the Judge is required by law to bear maritime law exper-
tise; today there are two specialized maritime courts, being a direct consequence of a growing practice in the
maritime litigation field.
Furthermore, the National Assembly of Panama adopted a bill amending the existing procedural rules for
admiralty claims. The Maritime Code of Panama amended by Law 12 of 2009, fashioned after the U.S. Supple-
mental Rules for certain Admiralty and Maritime Claims of Federal Rules of Civil Procedure, incorporated Ame-
rican procedural devices such as: oral trials, discovery, arrests procedures, limitation of liability and mixed in
rem and in personam claims.
All ships present in Panama, whether transiting the canal or calling any port, are subject to the jurisdiction
of the Maritime Courts of Panama. Regardless of the flag, or the place where the claim arose, whether inside
or outside Panama, the Maritime Courts will exercise its maritime jurisdiction. This is commonly referred to
as forum arresti. Any vessel is subject to be arrested either under an in rem theory or an in personam action.
2.Which International Convention applies to arrest of ships in your country?

Panama has not ratified any of the International Conventions related to Ship Arrests. However where the
applicable law to the claim is that of a country which has ratified any Convention the Maritime Courts of Pa-
nama will enforce it in cases where the law of the flag or the law of a particular country applies to the dispute.
Panama adopted a statutory provision for the determination of the applicable law.

Under our procedural rules, there are three ways to arrest a vessel. First, any vessel or property can be arres-
ted so that a defendant cannot dissipate assets beyond the jurisdiction by depositing a 20-30% bond of the
amount in controversy when defendant’s property is found within the territory of the Republic of Panama. A
defendant is “present” in Panama when its real and effective place of business is in the territory of the Republic
of Panama. Second, a vessel can be arrested ascribe the Courts jurisdiction when such a defendant is not pre-
sent for purposes of jurisdiction or when an asset of defendant property is attached in order to serve process.
Finally, a Maritime Court may exercise its jurisdiction to enforce maritime liens or encumbrances via an in rem
action.
A variety of an administrative arrest is also available to plaintiffs. Under an Article 206 of the Panama Maritime
Code, any Panamanian Vessels´ Registration can be blocked at the Shipping Registry so as to prohibit its sale,
deletion, transfer or registration of a mortgage or encumbrance. The evidentiary standard for this type of
proceeding requires a showing that an “immediate and irreparable harm” may occur. A discretionary deposit
may be ordered by the Court in the sum of no less than US$10,000 to not more than US$50,000.

Panama does not have the saisie conservatoire or freezing orders as they are known in France or in the United
Kingdom. However, the same results are obtainable under the arrest procedure established by the Maritime Code.
229
In the case of in rem claim, if the applicable law concedes a maritime lien or a statutory right in rem, any vessel
can be arrested. In Panama cargo or freight belonging to the defendant are also subject to being arrested
on an in rem claim.
In the case of an in personam claim, any claim arising out of acts related to maritime commerce, transporta-
tion and traffic arising inside or outside the territory of Panama and when the claims arises from an act or that
are or should be executed from, through or to Panama the Court will try the claim.
The amended maritime Law of 2009 also permits the filing of “mixed” or combined actions in rem and in per-
sonam, where the applicable law sets in rem and in personam liability for the underlying claim.
Claims that have been tried in the Panamanian Courts involve Personal Injury claims, Seaman labour claims,
Longshore workers claims, Insurance litigation, P&I direct actions, Collisions & allisions, Charter party disputes,
Contractual claims, Cargo claims, Necessaries, Bunkers, Maritime claims based on negligence, Vessel property
disputes, Mortgage executions, Towage, Limitations of liability procedures, Salvage, General Average and
Arbitration.

Yes, in Panama the mere presence of any vessel at Panamanian waters, whether to transit the Panama Canal
or to call any Panamanian port, gives the maritime court jurisdiction in rem over the vessel and in personam
over the owners, operators and charterers. Panama does not recognize governmental immunity for state
owned commercial trading vessels.

In Panama, the claims subject to Panamanian Law permit the arrest of a vessel, regardless of whether the
underlying debt is incurred by owner, disponent owner, operator or charterer. Under Panama Law anyone
with authority binds the vessel in rem, if the supplier is not timely notified otherwise.
There are two separate matters here. If the applicable law to the claim permits the arrest of sisterships or
associated ownerhip vessels, Panama will recognize it. In cases where Panama Law is applicable sistership
arrest is permitted if the vessel are owned by the same company in an in personam claim. If the claim is in
rem, the action has to be directed against the same vessel. However, Panama permits mixed or combined
claims, where there is a maritime lien or a statutory right in rem and there is in personam liability upon ow-
ners, operators or charterers. In addition, where the applicable foreign law permits the arrest of “associated”
ships Panama will recognize it.
In Panama piercing the corporate veil is an extraordinary remedy only available in cases of fraud or violation
of public policy.

Under Panama Law anyone with authority over the vessel, owner, disponent owner, bareboat charterer,
operator and/or time charterer binds the vessel for goods and services provided, except where the supplier
is timely advised otherwise. As to cargo damages liability, the vessel is liable in rem regardless of who has
control. In addition Bareboat and Time Charterers are liable in an in personam claim where the applicable
law so permits.
Notice should be taken that under Panama law there is a system of registration of bareboat charters, which
sets the liability of the charterer for operative liability of the vessel, keeping ownership issues in the original
registration.
* FRANCISCO CARREIRA-PITTI. Licenciate in Law and Political Science, University of Panama. Doctorate in Law, Notre Dame Law
School, Indiana, U.S.A. Admitted to practice in Panama, State of Michigan, Federal Bar and the U.S. Supreme Court.
1981 to 1985, Associate Attorney Parish&Rokely, St. Joseph-Benton Harbor, Michigan.
1986 - Date, Founding & Senior Partner, CARREIRA PITTI P.C. ATTORNEYS
1990 to 2010 Professor of Maritime Law, USMA Panama and UMIP, Master and Doctorate Programs in Admiralty and Maritime Law.
Member of the Panama Maritime Law Association (PMLA), MLAUS, ICMA, CMI, IPBA, IBA.
Since 1991Mr. Carreira-Pitti has been a speaker at more than 50 international events, including the Lloyd’s Ship Arrest 2011 Conferen-
ce in London. Mr. Carreira-Pitti has the honor of being the first Panamanian Lawyer admitted to practice before the Supreme Court of
the United States and is also a Candidate to Solicitor by the Law Society de England & Wales.
230
SHIP ARREST IN PANAMA (Questions 10 to 26)
By Jorge Loaiza III*
ARIAS, FABREGA & FABREGA
jloaiza@arifa.com
www.arifa.com
16 th Floor, P.H. Plaza 2000, Panama
Tel: (507) 205 70 00
Fax: (507) 205 70 01/02

Yes. It depends on the purpose of the arrest: a) prevent disposition (20 to 30% of the amount of
the complaint); b) to give jurisdiction to the court over the owner (US$1,000.00); or c) for enforce-
ment of maritime liens (US$1,000.00).
An up-front amount of US$2,500.00 would be required upon submitting the arrest petition for
maintenance and the Marshall would thereupon be entitled to require additional amounts. Failu-
re to do so would result in the release of the asset.
Not in terms of the procedure for the arrest itself. The Law also provides for mix proceedings (in
rem and in-personam). Foreign law could apply to determine the right to arrest.
The concept of maritime lien against the vessel, freight and cargo is expressly contemplated in the
law of Maritime Commerce.
Liens may be recognised under foreign law, by application of conflict of law rules and there are
also special provisions for enforcement of naval mortgages, which applies to national and foreign
vessels which are arrested in Panama.
Panama has not ratified international conventions on maritime liens.
your law firm?
The arrest of a vessel could be arranged on a same day basis, considering that the Court and the
Marshall would be available (as provided in the law) 24 hours.
The POA, in principle, and prima facie evidence of the right to claim would be needed when sub-
mitting the application for arrest (and the corresponding complaint).
By suppletory application of the Code of Civil Procedure, it is possible for a lawyer to act in lieu of
POA (i.e. negotiorum gestor). The POA would have to be submitted within 60 days. In case of fo-
reign entities, proof of existence of the same (i.e. certificate of existence or good-standing) would
also be necessary.
The general rule is that documents must be filed in original form; in particular, documents deemed
of a “public” source (coming from an official or Governmental entity).
The law expressly provides that public documents issued outside of Panama would have to be le-
galised to be admissible in Court, either by Panamanian Consul or, where the 1961 Hage Conven-
tion applies, Apostilled, or in lieu thereof by the Consul of a country deem amicable to Panama.
The law provides for the possibility of admission of copies, including discovery motions to seek
agreement of the parties in this connection, which is commonly accepted. The Judge should
assess overall under rules of logic and experience (ie “sana crítica”).
Documents deem essential for the representation of the parties, such as power of attorney are to
be produced in original and duly noticed and legalised (see 14 above). Currently, documents are
231
to be filed with the Court as opposed to allowing electronic filings.
Generally, the arrest in the events mentioned in item 10 above are meant to support proceedings
which, in turn, implies the review of a matter on the merits by the Court.
Response. The law provides that the plaintiff may unilaterally do so. Also by posting of security
and filing a request. This could be made unilateral by the defendant/owner of the asset or a third
party, or jointly by plaintiff and defendant/owner of the asset.
Failure of the plaintiff to consign relevant maintenance amounts, after five days from a request,
also allows the Marshall to proceed with the release.

Response. The law provides the following alternatives:
1. Cash or Certificate of Judicial Deposit at the National Bank of Panama

2. Letter of Guarantee, Certified or Cashier’s Cheque from a local bank holding a general license.
3. Surety from an insurance company licensed in Panama.
4. Other which the parties may agree.

Response. Yes, these would be assessed by the Judge upon fixing the amount of release bond.
However the parties may agree in terms of amount, thus also excluding interest or costs.

Response. These are, but would need the acquiescence of the plaintiff.

Response. Usually within the day of filing of the request (including if the necessary release bond
is duly consigned with the Court)

Response. Yes, this involves a motion duly supported for wrongful arrest, when there is a mistake
in the asset to be attached or ownership thereof, the absence or inexistence of an alleged mariti-
me lien causing the arrest or against an agreement no to arrest.
As per 16, above, the complaint would have to be filed at the time of the request of the arrest. The
Court would review if the underlying claim stands (prima facie) to initiate the proceedings with
the admission of the complaint.
The order for the arrest of a vessel would be served together with the complaint, and would tri-
gger the term to answer the complaint, to start the proceedings.

The law contemplates the following specific proof for wrongful arrest when: a) the arrest has been
performed over property which is different from the one against which the suit was brought; or
b) which does not belong to the defendant; or c) on which the maritime lien or in rem right for
whose execution the arrest was requested is extinguished or inexistent; or d) if the arrest was re-
quested in contravention of a prior agreement between the parties, as the case may be; as overall.
This would be in exceptional situations involving fraud or criminal actions, before competent
courts in that respect. Therefore, it should be noted that Maritime Courts may be reluctant to do
so, on strictly maritime causes of action, without an order or further support from a Penal Court.
232
Yes, in the following situations:
a) If the arrest may result in a deterioration of the vessel (depending on its type); b) After 30 days
from date of the arrest; c) If the costs for custody and maintenance become excessive in respect to
the sale value; d) If the complaint is not timely answered;
The first three scenarios would require the intervention of both parties, whilst the fourth, would
proceed at the request of the claimant and in case of enforcement of naval mortgages, ipso jure.
The proceeds would then be deposited at the National Bank of Panama, in an interest bearing
account.
*Jorge Loaiza III. Bachelor of Laws and Political Science - Santa Maria La Antigua University (1988) -Master of Laws, Southern Metho-
dist University (1989) (concentration on comparative and international law).
Foreign associate with Kelley Drye & Warren in Washington D.C. (1989); over 23 years concentrating in ship registration, ship finance
and maritime litigation – Partner at Arias, Fabrega & Fabrega; Board of Directors of the Panama Maritime Law Association from 2008-
2012; Drafting Committee to Amendments of 2009 to Law 8 of 1982 of Maritime Judicial Procedure.
Part of the joint Commission for complementary regulations to Law 57 of 2008 - Merchant Marine; Speaker: Seminars at the Panama
Maritime University; Inter-institutional Commission for the National Maritime Strategy (2011).
Recognition on Marine Money’s 2012 “Deals of the Year”. Leading Shipping lawyer, Panama, Chambers Global (2010-2014). Leading
Shipping lawyer, Panama, Chambers Latin America (2010-2014).
233
SHIP ARREST IN PERU
By Sandro O. Monteblanco, Managing Partner*
LAW OFFICES OF MONTEBLANCO & ASSOCIATES, LLC
info@peruvianlaw.com
www.peruvianlaw.com
Manuel de la Fuente 676, Barranco, Lima-04
Tel: +51 (1) 251-9628

Peru is a country that has no specific maritime law. Henceforth, when it comes to trying cases of this
nature, one must rely on international treatise, doctrine and current applicable local laws in order
to arrest a ship even thought the term itself is inapplicable in this country but the outcome is the
same. Peru has a mere handful of maritime attorneys who can be referred to as such but only by
profession and not by dedication. Given the intricacies of practicing law in an area that does not
have a law of its own is a monumental task as there is only experience on which to base your legal
actions for filing claims and following them through to the end. The concept of arresting a ship in
Peru is non-existent per se, it must be done through a preliminary injunction that if requested “out
of process” it can be obtained in up to 72 hours, but this on its own is a costly, tedious and complex
task. The other option to requesting an injunction is to do it “within the judiciary proceeding”, but
in Peru, this may easily take up to four months provided no strike, holidays or vacations come up for
the courts. In Summary, placing a do not move order on a ship is a viable option, but documents
need to be in place that can readily be legalized at the Peruvian Consulate or by apostille and
FedExed immediately for official translation whilst the claim is being drawn up and all this can be
done in as little as 48 hours, how long will the court take is a completely different question.

a. International Convention on the Arrest of Ships, Geneve 1999
b. Santiago Declaration
c. The Hague Rules
d. Convemar
e. Cartagena Agreement
f. Decision 487
g. Decision 532

The precautionary measure of placing a lien on the ship is a solid option that goes hand in hand
with filing a formal claim before the pertinent authorities. This however leaves a great deal up for
interpretation, as it requires counsel to approach the court presiding over the case for an ex parte
meeting with the judge to explain the case. However, this is an option that is widely used and
mostly accepted in the event the defendant has incurred debts with companies or government
agencies located within the Peruvian territory. I would add that limiting this task to debts incurred
in Peru only would be erroneous as we have been able to detain and hold vessels for debts with
foreign entities in Peruvian waters just as well.

Only precautionary measure

a. Debts,
b. Criminal activities,
c. International arrest warrants,
d. Suspicion of illegal trafficking or
e. Human trade, etc.

234
Yes, in accordance with the Convention of 1999.

Yes, if it can be demonstrated that there is just cause and a pre-existing debt that is going through
a valid judicial proceeding in Peru then yes it can.
Although not customary, a sister ship or any other property for that matter can be arrested if the
property can be demonstrated to be that of the debtor beyond shadow of a doubt.

The bareboat chartered is only for charter; its specific purpose is freight cargo. The Time-chartered
is a charter party. Either ship can be detailed and held under a Do Not Sail order if a court order so
mandates it.

Yes, counterclaims are mandatory and represent a percentage of the outstanding amount allege-
dly owed.
The judicial proceedings will be the same for both.
Yes. International Convention on Maritime Liens and Mortgages.
law firm?
Company documents that attest to the debt (invoices, Charterparty, amounts, wire transfers, etc)
can be legalized at the Peruvian Consulate or they can be Apostilled, either way, they then need to
be officially translated into Spanish In Peru. There must also be a Power of Attorney enacted in our
favor, which can also be at the Consulate or, by Apostille. Please note that any documents procured
at a Peruvian Consulate, upon arrival in Peru must be further legalized before the Peruvian Ministry
of Foreign Affairs and then officially translated into Spanish. These must then be registered locally
at the Lima Public Records. As a result of all these steps, clients must start this process as soon as
possible in order to have them completed in time. Assuming all documents are in order then an
detention with a Do Not Sail order can be obtained in 72 hours and even less depending on the
circumstances and while pending a litigious process.
Yes, POA is necessary as well as all supporting documents that would lead to a ship detention.
These documents are be BL, Invoices, Charter party, etc. POA will be provided to client on the day
they contact and retain our services but they will process it internally.
ments require notarization and/or apostille, and when are they needed?
No original documents are ever needed, that is why the court requests legalizations by way of Peru-
vian Consulate or Apostille services to ensure the copies adhere to the originals. These documents
are needed in order for the court to issue a final ruling but given the time constraints, many times
we file claims with simple copies while the client is processing the legalizations. The court will then
indicate that legalized copies are needed but by then we will have gotten them vie courier from
the client.
Yes, as long as all documentation support the claim then the court will issue a Do Not Sail order
awaiting the start of the case or further indication from outside courts.

In order for the Sail block to be lifted, the court that issued the block in the first place has to be the
one that lifts it. This can only take place once the reason that initiated the block in the first place
has been satisfied, i.e. an outstanding debt has been paid, ship has been turned over to its rightful
235
owners, etc.

That all debts and commitments between the defendant and the plaintiffs have been satisfied ac-
cordingly.

If that makes up part of the agreement then yes. Other times the debtor agrees only to a written
agreement but this is entirely between the parties, all the courts need to know is if the plaintiff is
desisting in his endeavors at recovering a debt.

No, since Peru has no specific maritime law it needs to only go by that which is stated in the Peru-
vian Civil Code and international treaties.

The court order indicating the release of the vessel can be issued in 72 hours, however, this order
needs to go through due process and that is what can take several weeks to complete its process.

The defendant, in responding to the initial claim can assert a lack of validity to the invoices, the BL,
and even question the Charterparty itself in order to cast a shadow of doubt to the claim. We have
seen many courts prefer to discard an initial claim in fear of starting an international debate while
others actually go through the due diligence process in order to determine who has a better right.
on the merits?
Legal action starts with the granting of the arrest of the ship, which can take place in two forms:
“out of process” or “within the process”. In the foremost the claimant must initiate legal actions by
filing the claim immediately after said arrest has been granted, while in the latter the lien is granted
as a result of the legal proceedings initiated by the plaintiff.

On a personal note, we do not engage in claims where we feel the plaintiff is filing a claim out
of malice or without evidentiary support. The claimant I asked to deposit a counterclaim with the
court. However, if the defendant can through the judicial proceedings demonstrate that it was in
fact a wrongful claim then the affected party can file for damages against the claimant.
Corporate veils can only be lifted through judicial orders, which must be ratified by a local judge in
the event the order is foreign.
Yes it is possible but under two conditions: only through a court order from a local judge and only if
the buyer is fully aware that the ship being sold is currently undergoing a legal proceeding.
*Sandro O. Monteblanco is a licensed attorney practicing in the Lima, Peru.

Mr. Monteblanco was raised in the United States and spent his formative years between Oregon and New York. Later in life he tra-
velled to Europe where he lived, studied and graduated from Chelsea University with an advanced degree in International Business
Administration.
Mr. Monteblanco later returned to Peru where he worked as a foreign business consultant assisting franchises and chains set up ope-
rations in Peru as well as throughout South and Central America. While successful at this venture, Mr. Monteblanco needed to bridge
the gap between the business plan and taking the project forward. As a result, Mr. Monteblanco began attending law school focusing
on corporate law and international trade.
Nowadays, Mr. Monteblanco is Managing Partner at a practice that specializes in Maritime, Mining and Corporate Law as well as other
specialties handled by his growing number of associates yet he still handles maritime cases personally.
236
SHIP ARREST IN PHILIPPINES
By Domingo G. Castillo*
SYCIP SALAZAR HERNANDEZ & GATMAITAN
dgcastillo@syciplaw.com
www.syciplaw.com
SyCip Law Center, 105 Paseo de Roxas
1226 Makati City, The Philippines
Tel: +632 9823500
Fax: +632 8173896

Ship arrests in the Philippines are allowed pursuant to Sec. 10 of Presidential Decree (P.D.) No.
1521 otherwise known as the Ship Mortgage Decree of the Philippines with respect to ship
mortgages which are duly recorded and registered. Moreover, P.D. 1521 allows the arrest of
vessels to enforce maritime claims or necessaries furnished to the vessel.

The Philippines has not adhered to any international convention on arrest of ships in the Philip-
pines. In fact, none of the international conventions on maritime liens has been ratified by the
Philippines.

Yes, the 1997 Philippine Rules of Civil Procedure allow the attachment of a vessel. This in effect
is an arrest or detention of the vessel.

Yes, attachment is a form of freezing order.

The various types of claims which will justify the arrest of a ship are, as follows:
a) Ship mortgage duly recorded or registered with the primary flag of registration; and b) Any
person furnishing repairs, supplies, towages, use of dry dock or marine railway, or other neces-
saries, to any vessel, foreign or domestic.

Yes.

Yes.
The Philippines does not allow sister ship arrest or ships in associated ownership. However, if
the ship will be detained pursuant to an attachment, the claimant needs to show that the ship
to be arrested is owned by the defendant.

Arrest is allowed on bareboat vessels provided that the person has the needed authority to get
the necessaries such as, repairs, supplies, towage, use of dry dock or marine railway given by the
ship owner since the bareboat charterer is considered the owner pro hac vice (for this purpose).
The same does not hold for time-chartered vessels.
10. Do your Court require counter-security in order to arrest a ship?

Yes, the counter-security will pay all costs and damages which may be adjudged to the adverse
party if the Court shall finally adjudged that the applicant was not entitled to the Warrant of
Arrest earlier issued.
237
No.
Yes, the Philippines recognize maritime liens under Sec. 21 of P.D. No. 1521 but not under any
international convention.
your law firm?
It will take approximately five (5) working days to arrest a ship since a formal Complaint has
to be drafted and the Certificate of Non-Forum Shopping has to be signed by the authorized
representative of the claimant stating that no previous Complaint for arrest has been filed with
any Court. Additionally, filing fees must be paid.
Yes, a copy of the basis for the claim must be attached to the Complaint which will be the “ac-
tionable document.”
The original basis of the claim has to be presented in Court during the presentation of evidence.
If the original is not presented the opposing party may move to dismiss the Complaint.
16. Will your Court accept jurisdiction over the substantive claim once a vessel has been arrested?
Yes.

There are several procedures to secure the release of the vessel from arrest.
Firstly. The Defendant may post or give a counter bond which will answer for the claims of the
Plaintiff. This counter bond is generally issued by a local Philippine bond or surety company
where the amount of the counter bond is equal to the amount being claimed by the Plaintiff
which would include legal interests, costs of suit and attorney’s fees.
Secondly. The counter bond may also take the form of a cash bond which will be deposited in
Court whereby the Court would deposit the said amount in a new bank account which will be
opened for the purpose which will earn interest during the pendency of the suit to avail final
judgment by the Court.
Thirdly. Another form of a counter bond would be the Letter of Guarantee or Undertaking
issued by a P&I Club. I hasten to add that this form of bond must have the conformity and ap-
proval of the Plaintiff, otherwise, the same may not be accepted.

The answer in paragraph 17 above.

Yes, the security would oftentimes cover legal interest, legal cost & attorney’s fees. The reason
for this is that once the counter bond is issued by the Defendant in favor of the Plaintiff, a con-
siderable lapse of time may arise with reference to the termination of the case. If the counter
bond would only secure the original claim of the Plaintiff, the reimbursement as to the cost of
suit, attorney’s fees and legal interest may not be covered. As such, the Court may make provi-
sion for these other extraneous costs.

It would depend on the counsel for the Plaintiff if he will accept the Letter of Undertaking (LOU)
issued by the P&I Club. If the counsel for the Plaintiff accepts the same then the Court would lift
the arrest of the vessel and the LOU will be accepted.

It depends on whether the counsel for the Plaintiff’s will accept the counter bond being propo-
sed by the Defendant. If the counsel accepts the counter bond then the vessel will be released
238
in a short period of time no later than five (5) days. In contrast, If the Plaintiff’s counsel objects
to the counter bond, then there will be considerably delays in accepting a counter bond by
lifting the arrest.

Yes, the Court will not unilaterally decide the acceptability of the counter bond but will give
both sides an opportunity to examine and accept the counter bond. This is done where the
Defendant files a Motion to lift the arrest and attaches a copy of the counter bond or a Letter
of Undertakings issued by the P&I Club. The Plaintiff counsel is given an opportunity to either
accept or reject the counter bond by filing a Comment to the Motion to lift the arrest. Once the
Motion and the Comment are filed, the Court will rule based on the arguments presented by
both parties.
The Claimants must pursue the legal action within a reasonable period of time; otherwise, the
defendant may move to dismiss or suspend the case in the event that the plaintiff does not
vigorously pursue its claim.
24. Do the Court of your country acknowledge wrongful arrest?

Yes.
25. Do the Court of your Country acknowledge the piercing and lifting of the corporate veil?
Yes.
Yes, Philippine courts allow the sale of a vessel pendente lite provided that a motion is filed in
Court alleging that there will be damage or loss to the vessel if the sale is not granted. The sale
may take place after two (2) months from the filing of the motion.
*Domingo G. Castillo obtained his Bachelor of Science in Business Administration (BSBA) and Bachelor of Laws (Ll B) from the Uni-
versity of the Philippines in 1973 and 1977, respectively. He then obtained his Master of Laws (Ll M) in 1981 from New York University.
He is currently a partner in the firm of SyCip Salazar Hernandez & Gatmaitan, with offices at the Seventh Floor, SyCipLaw Center,
105 Paseo de Roxas, 1226 Makati City, Philippines, Tel. Nos. (63-2) 982-3540, 982-3600, and 982-3700, Fax Nos.: 817-3896 and
818-7562; e-mail address: dgcastillo@syciplaw.com.
Mr. Castillo has handled various cases involving vessel arrest, collisions, oil pollution, cargo claims, personal injury, and insurance claims.
239
SHIP ARREST IN POLAND
By Bartosz Biechowski*
Attorney-at-law, Maritime and Commercial Law Office
bartosz@biechowski.com
www.biechowski.com
ul. Swietojanska 118/9, 81-388, Gdynia, Poland
Tel: + 48 50 462 89 29
Fax: + 48 58 661 33 38

Under Polish law, to arrest a vessel you need a decision of the court (court order). Such order
is given in accordance with provisions of the Polish Civil Procedure Code (PCPC) on securing
claims (art. 730 - 757). These provisions do not apply only to vessels but also to any other types
of claims - both pecuniary and non-pecuniary.
Under the art. 730 (1) of the PCPC the security order will be granted to a creditor:
-whose claim is probable (you do not have to prove your claim at this stage of proceedings),
-who has legal interest in the arrest.
Legal interest means the situation in which (1) lack of security makes it impossible to satisfy
creditor’s claim or (2) satisfaction of this claim is connected with serious difficulties. These cir-
cumstances should be probable but you do not have to prove them.
Arrest orders are enforced by bailiffs who prior to seizure of the vessel should inform maritime
authorities and Border Guard about the arrest.

International Convention Relating to the Arrest of Sea-Going Ships of 10th May 1952 (Brussels
Convention). The Brussels Convention is integral part of Polish law and is applied directly.

Maritime authorities may detain vessel for up to 72 hours (on Sundays and public holidays this
time does not run) to secure claims for outstanding port fees, claims for damages in port facili-
ties, docks or sailing routes and claims arising from environmental pollution.

If a vessel is entered into the Polish register this is possible to encumber it with compulsory mort-
gage. In practice this is used mainly for securing creditors’ claims on vessels under construction.

Vessels flying flag of member states of the Brussels Convention can be arrested only for mariti-
me claims listed in art. 1.1 of this convention. Other vessels can be arrested also for other claims.

Yes, this is possible.

Yes (excluding warships and other vessels in state service).
As under the article 3.1. of the Brussels Convention.

As under the article 3.4 of the Brussels Convention.
240
The court may require payment of deposit to satisfy potential claims of the debtor connected
with wrongful arrest. This is, however, quite rare situation.
Procedure is the same.
Poland is a party to Brussels convention on maritime liens and mortgages of 1926. Polish Mari-
time Code also contains provisions concerning maritime liens.
your law firm?
About 3-4 days (much depends on the judge).
We need POA and documents which prove that the person(s) who signed the POA is (are) duly
authorised to represent the company (extract from commercial registers, etc.) We also need
documents which show that claim is probable (we do not have to prove the claim in this stage of
proceeding).
Certified translations to Polish are necessary in all cases.
All documents should be filed in the Court in paper version – scans and copies are acceptable
provided they are certified as “true copy” by the attorney-at-law (legal adviser or advocate).
Additional legalisation, notarisation or apostille may (but does not have to) be necessary for
claims listed in art. 1 para 1 letters “o”, “p”, “q” and with respect to maritime liens (actions in rem).
ted?
As under the art. 7.1 of the Brussels Convention. Moreover, careful examination of other sou-
rces of law is recommended (the PCPC and Council Regulation 44/2001 in the first instance).

The ship may be released in following cases:
- when the arrest is succesfully contested (see question 22).
- when the cash security is given by a debtor (see questions 18 & 22).
- when the arrest collapses (see question 23 & 24),
- when the creditor agrees for the release (see question 20).

The fastest way to release the vessel is to pay full amount determined in the arrest order into
court deposit bank account. In such case, the arrest collapses automatically.
The main disadvantage of this procedure is that this money will have to stay in the deposit ac-
count until the proceedings as to the merits of the case are finished in final and legally binging
way.
Other disadvantage is that the cash deposit must be paid in Polish zloties.
However, the debtor may at any time try to negotiate with the creditor in order to change the
type of security (e.g. cash deposit for bank guarantee etc.). See also question 22 in fine.

Under Polish law, it is possible to secure future costs of proceedings and interest but it is not
obligatory - only creditor decides whether to do so or not. Anyway, security given by the debtor
has to be in an amount corresponding with the amount determined in the arrest order issued
by the court. So, if the arrest order includes costs of proceedings and interest, these costs will
also have to be secured.
241
Under Polish law, the court will automatically release the vessel ONLY when the full amount
determined in the arrest order is paid into the court deposit bank account. But still, maintaining
or lifting the arrest is creditor’s sole decision. So, if the creditor accepts the bank guarantee, insu-
rance guarantee, P&I LOU etc. as the sufficient security of its claim instead of the cash deposit,
there should be no problem with releasing the vessel on this basis.
Depends on the case - usually from two days to one week.

Under Polish law, it is possible to lodge a complaint against an unjust arrest. It should be done
within 7 days as from the date of the arrest of the vessel. The main disadvantage of this procedu-
re is that it is quite time - consuming - the case has to be re-examined by the court of the higher
instance which may take about three months. However, if the debtor has time (for example if a
vessel is arrested in a shipyard), lodging such complaint is recommended.
ATTENTION: If you pay full amount determined in the arrest order into the court deposit ac-
count, your complaint will be dismissed (where there is no arrest anymore, there are no grounds
to lodge a complain). However, if the debtor is trying to negotiate other type of security - i.e.
bank guarantee, insurance guarantee or P&I LOU, it does not prevent the debtor from lodging
such complaint and does not itself lead to dismissal of the complaint.
Up to 14 days. Otherwise the arrest collapses (see also art. 3.3 of the Brussels Convention).

Yes. Debtor can lodge a complaint against the security order. If the court allows the complaint,
the debtor may claim for compensation for its losses connected with the arrest. The same relates
to situation when the arrest collapses – for example (1) if the action as to the merits is not com-
menced in prescribed time, (2) the writ of summons is returned or rejected for formal reasons
or (3) the claim is dismissed.
No.
No. Generally, no forced sale of the vessel in Poland is recommended. This is too complex and
takes too much time.
*Bartosz Biechowski, attorney-at-law, owner of the Maritime & Commercial Law Office in Gdynia, rendering tailor-made services to
customers worldwide. Born on 19th March 1977 in Gdynia, Poland. Graduated from the Faculty of Law of the University of Gdansk and
Postgraduate Study of Intellectual Property Law of the Uniwersytety of Warsaw.
In his professional carreer, Mr. Biechowski represents both individual clients and large companies. With maritime law as his main area
of interest and expertise, he specialises mostly in arrests and release of vessels as well as claims for personal injuries at sea, claims
related to damages to cargo, H&M claims and any other types of maritime claims. In addition to this Mr. Biechowski deals also with
company law, international trade law as well as intellectual property law.
Mr. Biechowski has vast experience in international business environment and speaks fluently English as well as some Russian and
French
242
SHIP ARREST IN PORTUGAL (Questions 1 to 9)
By Mafalda Rodrigues Fonseca*
CSBA, RL
csba@csba-advogados.pt
www.csba-advogados.pt
Rua Castilho, no. 57, 3º Dto.,
1250-068 Lisboa
Tel: 00 351 21 384 62 00
Fax: 00 351 21 386 17 35

Ship arrests are common in Portugal and such a fact is not surprising taking into account its exten-
sive coast, strategic location and key importance of navigation throughout its history. Ship arrests
are a provisional remedy envisaging a court decision pertaining to the collection of a debt though
the seizure of assets. Indeed, according to Portuguese Law, the arrest petitioner must provide the
court with the facts that show a serious probability that the claimed credit does exist and in addi-
tion demonstrate the risk of losing the guarentee (“fumus boni iuris” and “periculum in mora”).
Ship arrest under applicable international Law does not require evidence of “periculum in mora”,
but the creditor must still evidence the apparent existence of the claimed credit. In the aforemen-
tioned cases it is not required evidence of the credit’s existence, it is necessary to demonstrate that
there is a serious probability that the credit indeed exists. Considering the provisional nature of this
“legal instrument” it is also important to emphasise the relevance of its link to the declaratory pro-
cedure, since, it has to be filed by the petitioner within 30 days after the notification of the arrest
decision or in another deadline if requested by the petitioner and ordered by the maritime court.
If the petitioner does not act accordingly the arrest provisional remedy it is extinguished and the
petitioner may be held liable for the unjustified arrest.

The International Convention for the Unification of Certain Rules relating to the Arrest of seagoing
Ships of 1952 (below simply referred to as 1952 Convention) is applicable in Portugal to the arrest
of foreign ships. An additional number of particularities arise from Portuguese law, namely from
articles 391 and 394 of the Civil Procedure Code and article 619 of the Civil Code. It is in accor-
dance with the aforementioned laws that the competent entity, i.e., the Maritime Court orders the
arrest of ships.

No. In Portuguese territory the only way to arrest a ship is through the aforementioned legal ins-
trument. The entire legal basis mentioned is specifically referred to ship arrest and therefore these
legal issues do not find solution in any other law. The arrest of ships in Portugal must be requested
before the Maritime Court through the initial petition.

In Portugal the debtor can only stop a ship from leaving the country trough a saisie conservatoire
since the national legal system has specific laws for this kind of situations. This legal instrument will
allow the creditor to secure his credit’s payment keeping an asset (ship) well located.

In accordance with the 1952 Convention, namely article 2, ships can only be arrested in the juris-
diction of another State in respect of a maritime claim. However the Convention does not overlap
or restrict internal laws and any national regulation of the State concerning ship’s arrest.
Regarding the above mentioned we can conclude that the Maritime Court is competent to arrest
ships, whether Portuguese or not, in accordance with both Portuguese and International Law,
namely the aforementioned 1952 Convention.
It is important to emphasize that although in some cases Portuguese Courts may not have jurisdic-
tion to decide on the merits of the claim, the arrest of ships in Portuguese waterways is possible,
under the 1952 Convention. Should this be the case, the prerequisite of the maritime nature of
243
the underling claim must be in place in order for the Convention to be applied, although it is not
required demonstration of the “periculum in mora”, as it is presumed to exist.

Yes. Since the Portuguese and International Law do not forbid the arrest of a vessel concerning its
flag, through a reverse interpretation we can conclude that a ship can be arrested irrespectively
of its flag.

Yes, it is possible in some situations to arrest a ship irrespectively of the debtor.
For example, paragraph 1 of the 3rd article of the 1952 Convention allows, a Claimant to request
the arrest of either (i) the ship in respect of which the maritime claim arose, or (ii) any other ship
owned by the person who was, at the time when the maritime claim arose, the owner of the ship
(responsible for the maritime claim). This situation is possible even though the ship arrested is
ready to sail. However no ship, other than the particular ship in respect of which the claim arose,
can be arrested in respect of any of the maritime claims enumerated in Article 1 (1) (0), (p) or (q)
of the 1952 Convention.
Another example, is stated in paragraph 4 of the 3rd article of the 1952 Convention, referred to
situations of ship freight with nautical management transfer, which allows, (when the only
responsible for the maritime claim against that vessel is the charterer), the arrest of that specific
ship or any other owned by the charterer.
8. What is the position as regards sisters ships and ships in associated ownership?
Regarding sister ships, paragraph 1 of the 3rd article of the 1952 Convention allows the arrest of
ships in respect of which the maritime claim arose and also of any other vessel owned by the same
person / company.
Regarding ships in associated ownership, the Portuguese legal system allows the arrest of ships
in associated ownership, there is not a law forbidding it.

There is a difference between these two types of charter contract. In a Time-chartered vessel the
petitioner can request the arrest of the vessel from which the maritime claim arose or of any other
vessel owned by the charterer. In a Bareboat Chartered vessels the only asset/ship that can be
arrested is the vessel from which the maritime claim arose.
*Born on 4 September 1978

Portuguese
Graduate and pos graduate by Portuguese Catholic University;
Member of the Portuguese Bar Association since 2004;
Ship Arrest and in general Maritime Law is a very active area of work in which her has deal of experience.
244
SHIP ARREST IN PORTUGAL (Questions 10 to 26)
By Ana Cristina Pimentel*
ARMANDO HENRIQUES, ANA CRISTINA PIMENTEL
& ASSOCIADOS, SOCIEDADE DE ADVOGADOS, RL
ah.acp@netcabo.pt
Av. Miguel Bombarda, 50 – 2º
1050-166 Lisboa - Portugal
Tel: 351 21 781 99 90
Fax: 351 21 793 06 15

Although it is established on article 374 nr. 2 of the Portuguese Code of Civil Procedure that the judge may
request the arrestor to put up an adequate security, considering the particular circumstances of the case, to
our knowledge never did a Maritime Court Judge request for such counter-security to be given by the arrestor
as a requisite for the arrest.
There is no difference in respect of arresting a ship for a maritime credit or maritime lien; the same rules apply
on both situations. However, when the arrest is requested on the basis of national law only, the arrestor will
have to produce evidence on the probability of the existence of his credit, as well as on the financial situation of
the arrestee, to justify that the arrest of the ship will be the only measure that will allow the arrestor to be able
to receive payment considering the overall situation of the arrestee and his assets.
Since 13th May 2012 Portugal is no longer be a party to the 1926 Brussels Convention for the Unification of
Certain Rules relating to Maritime Liens and Mortgages. The issue of maritime liens is now ruled by the Com-
mercial Code, namely article 578, listing as maritime liens the “hypothèque” in the third place, after court costs
and expenses incurred in the common interest of the creditors and salvage, and before other liens such as
pilotage and tug costs; light, harbour and port dues; crew wages; supplies and repairs to the vessel; insurance
premiums; unpaid last sale price of the vessel; unpaid amounts arising from shipbuilding contracts and indem-
nities due to cargo owners.
13. What lapse of time is required in order to arrest a ship since the moment the files arrives to your law firm?
Once the file is analysed by the Lawyers, it will be necessary to prepare and draft the arrest application stating
clearly all the relevant facts of the case, the reasons for the arrest to be granted and the amount claimed, all
dully supported by the relevant documentary evidence (contracts, invoices, exchange of correspondence, etc.),
translated into Portuguese (at least the most relevant documents). A list of witnesses to be heard has also to
be included. The judge will have a period of 24 hours to analyse the file and give the first detention order pre-
venting the vessel from sailing. This order is immediately sent by fax by the Court to the Harbour Master office
of the port where the vessel is staying. The hearing of the witnesses appointed, if necessary, will take place a
few days later.
When submitting the arrest application it will be necessary to attach a power of attorney, as well as all the
supporting documents evidencing the facts of the case and the amount of the claim, for the judge to be able
to analyse the merits of the arrest application.
require notarization and/or apostille, and when are they needed?
All documents are filed electronically and the originals kept by the Lawyers. The original POA is kept by the
Lawyers; the supporting documents may be kept only in copies. The POA has to be legalized with apostille
or alternatively documents evidencing the identity and powers of the person signing the power of attorney
should be presented to the Lawyer and considered as sufficient evidence.
Portuguese Courts will accept jurisdiction over the substantive claim on the situations listed on article 7 nr 1 of
the 1952 Brussels Arrest Convention.
245
The arrestee will have to discuss settlement with the arrestor or alternatively put up security, directly within the
court or in the hands of the arrestor. The ship will be released as soon as requested by the arrestor or when the
judge considers the security provided is adequate.

Any kind of security will be accepted provided it receives the agreement of the arrestor. If security is placed
directly with the court only cash deposit or bank guarantee will be acceptable.

Not necessarily, security will have to be sufficient to replace the amount of the claim guaranteed by the ship as
established on the arrest decision.

P&I LOUs are only accepted if they receive the agreement of the arrestor. The judge alone will not consider P&I
LOU as adequate security.

The time length to release the ship depends on the arrestee. As soon as payment is made or the security provi-
ded is considered adequate the ship will immediately be released. However, the release of the ship will have to
be requested within the courts’ working hours (week-ends and holidays are excluded)

The arrestee may oppose to the arrest decision within 10 days from service of the arrest documents or alterna-
tively appeal from the arrest decision. In case of opposition, the arrestee may submit documents and list witnes-
ses to be heard by the court. A new arrest decision will be given after the judge has considered the arguments
of the arrestee. The arrest may thereafter be lifted, maintained or the amount granted reduced.
23. Which period to time will be granted by the Courts in order for the claimants to take legal action on the merits?
The time limit for the claimant to take legal action on the merits is thirty days counting from the date the arres-
tor is notified by the Court that the arrest application has been served on the arrestee.
24. Do the Courts in your Country acknowledge wrongful arrest?

Yes. Article 374 of the Code of Civil Procedure determines that if the arrest is considered unjustified or will
become void because of the arrestor, the arrestor is responsible for the damages caused to the arrestee if the
arrestor did not act as a normal and prudent man should have done. Civil liability rules will apply.
No. In principle only the debtor / arrestee and his registered assets are liable for the payment of the debts clai-
med against such debtor, an individual or a company. The Court will not look into the links between different
companies and their shareholders or allow the arrest of assets belonging to entities other than the debtor/
arrestee.
It will be possible to request for the anticipated sale of the ship, providing one can justify the need for such
measure because of, for instance, the depreciation of the value of the ship and the consequences thereof for
the owner and claimants. The circumstances of each particular case are analysed by the Court and the sale is
normally only allowed when the ship is abandoned by the owner/arrestee, remains arrested for a long period
of time and her situation is uncertain. The sale procedure will take several months considering the need to
obtain the judge’s order, the service on the owner of the ship and the sale procedure that will follow thereafter.
*Ana Cristina Pimentel is a Senior Partner to Armando Henriques, Ana Cristina Pimentel & Associados, Sociedade de Advogados, RL,
a Portuguese Law Firm formally registered in 1999, although some Partners started their practice back in the years 80. The main areas
of activity of the Firm include maritime law, transport law an insurance law. She took her degree in Law in Belgium, at the Université
Catholique de Louvain-La-Neuve, in 1991 and she also obtained a Post graduation in Maritime Law at the London Metropolitan University
(London Guildhall University), in the United Kingdom, in 2003. She is a Lawyer registered at the Portuguese Bar Association since 1994.
She is also a teacher at the Portuguese Nautical School (Escola Nautica Infante D. Henrique), since 2004, on subjects including maritime,
transport and labour law.
246
SHIP ARREST IN PUERTO RICO
By Alberto J. Castañer*
CASTANER LAW OFFICES P.S.C.
alberto@castanerlaw.com
www.castanerlaw.com
Maramar Plaza,101 Ave. San Patricio, Suite 1110
San Juan, PR 00926, Puerto Rico
Tel: 1 787 707 0802
Fax: 1 888 227 5728

Puerto Rico is a territory of the United States of America subject to most federal laws enacted by
the U.S. Congress. As in the United States, ship arrests most be commenced by filing a complaint
in rem against the ship in the U.S. District Court. The Federal Rules of Civil Procedure’s Supple-
mental Rules for Certain Admiralty and Maritime Claims (“the Supplemental Rules”) govern the
procedure for arresting or attaching a vessel or other maritime property in the Puerto Rico.
A warrant of arrest or writ of attachment is issued by the Court directing the U.S. Marshal to
arrest the ship, maritime property (in in rem arrest cases for enforcement of liens), or to attach
any property of the in personam defendant (in attachment/garnishment cases based on an in
personam maritime claim).
2. Which International Convention applies to arrests of ships in Puerto Rico?

None

No.
4. Are these alternatives e.g. saisie conservatorie or freezing order?

Supplemental Admiralty Rule B provides a method to obtain in personam jurisdiction over the
defendant vessel owner by attaching or garnishing his property (ships, goods, chattels, credits
and effects) when the claimant asserts a maritime claim and the defendant cannot be found
within the district.

As a general rule, the rules of the admiralty and maritime law of the United States are presently
in force in the navigable waters of the United States in and around the island of Puerto Rico. An
in rem action under Supplemental Admiralty Rulc C to arrest a ship may be brought in Puerto
Rico only to enforce maritime liens created under the Federal Maritime Lien Act, to enforce
liens created under U.S. general maritime law, and as authorized by statutes such as the Ship
Mortgage Act.
When foreign laws determine a claimant’s rights, only a maritime lien created under the applica-
ble foreign law will sustain an in rem arrest. A right of arrest under foreign law is not sufficient
without a maritime lien. However, in an in personam action under Supplemental Rule B, there is
no need for a lien on the vessel to be able to attach it as long as the claim is maritime in nature.

Yes.

Yes. However, vessels owned by the U.S. government or other foreign nations may not be arres-
ted as per the Foreign Sovereign Immunities Act.
Under U.S. law, arrest of a sister or associated ship is not allowed. Nevertheless, sister ships may
be attached if the claimant asserts a maritime claim against the owner.
247
9. What is the position as regards bareboat and time-chartered vessels?
A maritime lien attaches at the beginning of the charter, yet only will be enforceable at the
time of breach: the lien remains “inchoate” until “perfected.” The lien exists from the beginning
of the charter to provide security for the parties. The obligations of shipowners, the shipper,
consignee, or owner of the cargo are reciprocal, and the maritime law creates reciprocal liens
for their enforcement. The vessel may be arrested only after the lien is “perfected” by a breach
of the charter.

No. But, the court may at any time, require any party to give security or additional security, to
pay all costs and expenses that may be awarded. Also, the execution of the arrest or attachment
may be stayed, or the property released, on the giving of security, to be approved by the court
or stipulated by the parties. See Supplemental Admiralty Rule E(5). In addition, when the person
who has given security to stay execution of the arrest or to release the vessel asserts a counter
claim that arises from the same transaction or occurrence subject to the original action, the
arresting party must give security for the damages in the counterclaim unless the court directs
otherwise. See Supplemental Admiralty Rule E(7).
Yes. A maritime arrest is allowed only when a maritime lien attaches the vessel. See Supplemen-
tal Admiralty Rule C. Not all maritime claims create a maritime lien. However, vessels may be
attached under Supplemental Admiralty Rule B, which only requires a maritime claim against a
defendant that cannot be found within the district but whose property is or will soon be within
the district.
12. Does your country recognize maritime liens? Under which International Convention if any?
Yes. Maritime liens are recognized under U.S. general maritime law, U.S. maritime statutes and
international conventions e.g. Federal Maritime Liens and Act, Ship Mortgage Act, and the 1910
Salvage Convention.
your law firm?
Vessels are commonly arrested on very short notice to law firms. Sometimes as little as 24 hours
before the ship calls port. In such cases, the claimant must show the court that exigent circum-
stances exist that makes court review impracticable.
A POA is not necessary to arrest or attach a vessel. However, it is recommended that the com-
plaint be accompanied by evidence that supports the existence of a maritime lien in in rem
arrest cases, or the existence of a prima facie maritime claim in in personam attachment cases.
documents require notarization and/or apostile, and when are they needed?
Original documents are not required as prerequisite. Any document may be filed electronically
through the U.S. District Court’s CM/ECF online system. The complaint must be verified and this
may be done by notarization or by making an unsworn declaration under penalty of perjury
pursuant to 28 USC § 1746.
Yes. After arresting or attaching the property, the Court will rule on the substantive claim by
applying either U.S. law or any foreign law found to be applicable after making a “choice of
law” test.

The owner of the arrested ship must file security in the form of a bond, or letter of undertaking
from its insurer or P&I club. The security may be approved by the court or stipulated by the
parties.

Supplemental Admiralty Rule E(5) does not specify the type of security necessary to secure relea
248
se of the vessel. To the contrary, the Rule provides that “the parties may stipulate the amount
and nature of such security”. Thus, the parties may be creative and agree to one or more of
many possible types of security. However, if the parties do not stipulate the nature of the secu-
rity, “the court shall fix the principal sum of the bond or stipulation”.

Yes.

Yes.

The party seeking release of a ship may file an emergency motion submitting the bond, LOU,
or other security, and asking the court to immediately issue an order releasing the ship from
the arrest. If the parties have stipulated the security, the ship will most likely be released expedi-
tiously. If no stipulation is made, the security must be approved by the court prior to releasing
the ship, which could take longer.

Yes. Whenever property is arrested or attached, any person claiming an interest in it is entitled
to a prompt hearing at which the arresting/attaching party shall be required to show why the
arrest or attachment should not be vacated or other relief granted. See Supplemental Admiralty
Rule E(4)(f).
The time to take judicial action will depend on the type of claim and the controlling law. For
example, most claims arising under U.S. general maritime law must be filed within a time deter-
mined by the doctrine of laches, which provides flexible approach rather than an arbitrary/fixed
period. On the other hand, for example, because the United States is a signatory of the Salvage
Convention of 1910, salvage claims must be filed within two years.
24. Do Courts in your country acknowledge wrongful arrests?

Yes. Damages for wrongful arrest are recoverable when the arrest is made with bad faith, ma-
lice, or gross negligence.
Yes.
Yes. Supplemental Admiralty Rule E(9)(a) allows interlocutory sale of the arrested ship when:
(A) the attached or arrested property is perishable, or liable to deterioration, decay, or injury
by being detained in custody pending the action; (B) the expense of keeping the property is
excessive or disproportionate; or (C) there is an unreasonable delay in securing release of the
property.
*Attorney Alberto Castañer has a broad wealth of knowledge concerning the area of Maritime and Admiralty Law, including advanced
degree from one of the the top maritime law school in the world.
Castañer is a graduate of University of Puerto Rico, (B.A., Cum Laude), Interamerican University School of Law (J.D., Cum Laude), and
Tulane University Law School (Admiralty and Maritime LL.M.), and is currently an adjunct professor f Admiralty and Maritime Law at the
Interamerican University of Puerto Rico School of Law.
After obtaining his graduate degree in Maritime Law at New Orleans, Louisiana, Castañer formed his law firm to provide extensive com-
mercial and corporate counseling and litigation representation to the transportation industry in matters such as cargo claims, international
trade regulations, vessel arrests, ship mortgages, marine terminal operations, and others.
249
SHIP ARREST IN QATAR
By Omar N. Omar*
o.omar@tamimi.com
www.tamimi.com
Al Jazeera Tower, 7th Floor 61 Conference Street,
Zone 61 PO Box 23443, West Bay Doha
Tel: +97444572777
Fax: +97444360921

The Qatar Maritime Code regulates the conservatory arrest of ships. The arrest application is
submitted to the Court of First Instance (Summary Judge dealing with urgent matters). The
Court normally considers the application of arrest of a vessel on a prima facie basis and the
arrest order is usually rendered ex-parte on the date of the filing of the application for arrest
(or the earliest thereafter) provided that the claim is proven based on the face of things. The
arrest order may be challenged but this procedure is usually complex and lengthy.
Qatar is neither a party to the International Convention on the Arrest of Seagoing Ships of
Ships of 1999.
The ship could be arrested in Qatar in the context of either a precautionary seizure proce-
dure or an enforcement procedure commenced against her. The main difference between
both procedures is that the applicant is not required to have an execution deed against the
ship in order to commence precautionary arrest proceedings against the ship.
There are no alternatives for the arrest of ships in Qatar as the Maritime Code regulates the
arrest of ships in specific which prevents the applicant from relying on other laws in Qatar.
In order to arrest a vessel in the Qatari territorial waters the creditor must have a maritime
debt against the ship. Article 42 of the Qatari Maritime Code defines “maritime debts” as
follows:
a. Damage caused by the vessel by reason of a collision or otherwise.
b. Loss of life or personal injuries occasioned by the vessel and arising out of the use thereof.
c. Assistance and salvage.
d. Contracts relating to the use or exploitation of the vessel under a charterparty or otherwise.
e. Contracts relating to the carriage of goods under a charterparty, bill of lading, or other docu-
ments.
f. Loss of or damage to goods or chattels being carried on board the vessel.
g. General average.
h. Towage or pilotage of the vessel.
i. Supplies of products or equipment necessary for the utilization or maintenance of the ves-
sel, in whichever place the supply is made.
j. Construction, repair or fitting out of the vessel, and costs of it being in dock.
k. Wages of the master, officers and crew.
l. Sums spent by the master, shippers, charterers or agents on account of the vessel -or on
account of the owner thereof.
m. A dispute as to the ownership of the vessel.
250
n. A dispute in connection with the co-ownership of the vessel, or with the possession or use
thereof, or with the right to the profits arising out of the use thereof.
Yes. A ship anchored within the Qatari territorial waters can be arrested irrespective of the
flag she is flying.
The ship can be arrested in the Qatari territorial waters if the claimant successfully proves
that he has a maritime debt against the vessel.
The arrest of sister ships in Qatar is possible for any of the maritime debts listed under ques-
tion 5 above with the exception of debts arising out of a dispute as to the ownership or co-
ownership or possession of the vessel (Question 5(m) and (n) above). Regarding the arrest of
associated ships, there is a great degree of uncertainty as, for the arrest to be successful, we
need to prove to the judge the close link between the entity owning the ship that incurred
the debt and the entity owning the associated ship.
The Qatar Maritime Code gives the creditor of the charterer who has control over the nauti-
cal navigation of the ship the right to arrest the ship for a debt resulting from the charterer’s
actions. In addition, the creditor has the right to arrest any other ship owned by the charterer.
No counter-security is required in Qatar.
In practice, there is no difference between the arrest of a ship for a maritime claim and the
arrest of ship for a maritime lien.
The Qatar Maritime Code recognizes maritime liens. In fact, the Qatar Maritime Code has
listed the maritime liens in Article 33 as follows:
1. Judicial expenses that were spent to maintain the Vessel, sell it, distribute its price, cargo
and port charges as well as other charges, public taxes of the same kind, and charges of
pilotage and compensations for the damage that caused to the installations of the ports,
docks and navigation routes, and expenses for removing navigation obstacles caused by the
Vessel as well as expenses of sentry duty and maintenance since the entry of the Vessel to
the last port.
2. Debts resulting from the employment contract of the captain, sailors and others relating
to the Vessel with an employment contract.
3. Monies due for assistance and salvage, and the share of the Vessel in general marine
average.
4. Compensation due for collisions and other navigational accidents, compensation due for
bodily injuries to the passengers and crew, and compensation for loss or damage to goods
and possessions.
5. Debts arising out of contracts made by the master, and operations carried out by him
outside the port of registration of the Vessel within the scope of his lawful powers for an
actual requirement dictated by the maintenance of the vessel or the continuance of its vo-
yage, whether or not the master is also the owner of the Vessel, or whether the debt is due
to him, or to persons undertaking supply, or lenders, persons who have repaired the vessel,
or other contractors.
Qatar did not accede any of the International Conventions relating to Maritime Liens.
to your law firm?
Assuming that all forwarded documents have been translated into Arabic by a sworn trans-
lator in Qatar, the ship can be arrested within 48 to 72 hours.
251
A POA duly notarised and legalised up to the Qatari Embassy must be submitted to the
competent Court of First Instance with the arrest application. In addition, we need to attach
to the arrest application all the documentation supporting the claim against the ship. In this
context it must be noted that the official language in Qatar is Arabic which means that all
documents in foreign language must be translated into Arabic by a sworn translator in Qatar
prior to submission.
The documentation supporting the claim must be attached to the application and electronic
filing is not available. As mentioned under question 14 above, if these documents are in
foreign language they must be translated into Arabic language. Only official documents
must be legalised up to the Qatar Embassy at the place of issuance and then legalised by the
Ministry of Foreign Affairs in Qatar.
ted?
There is uncertainty in this area of law especially where the jurisdiction is given to a fo-
reign court and not arbitral tribunal. Therefore, and if jurisdiction is given to an arbitral tri-
bunal, we recommend our clients to commence arbitration within the two weeks period (as
highlighted under question 23 below) and request from the court the stay of the procee-
dings until an arbitral award is issued. However, if jurisdiction is given to a foreign court, we
may argue in court that Qatari courts have jurisdiction over the substantive claim.
The release of the ship by the applicant is done by virtue of a simple memorandum submit-
ted to the court in this regard. The decision issued must be served upon the ship and the
harbour master or the coast guard. If the defendant to the application wants to release the
ship then he must deposit the security requested by the judge and request from the judge
the release of the vessel.
The security that needs to be placed to release the ship must take the form either of a bank
guarantee issued by a local bank or cash deposited in the court.
The judge will decide on the amount of the security that must be deposited by the defen-
dant to the arrest application.
No P&I LOUs are unacceptable.
The defendant to the arrest application may file a grievance before the Court of First Ins-
tance who issued the arrest order. Upon hearing the grievance, the Court may make an
order lifting the arrest order and such judgment shall be enforceable through the normal
channels. The grievance shall be submitted within seven days from the date of issue of the
arrest order.
The applicant must commence substantive proceedings within two weeks starting from the
service of the arrest order on the ship.
There are no legal precedents on the liability for the wrongful arrest of a ship. However,
252
under the general principles of civil law, a claim for wrongful arrest may succeed if the party
from the arrest.
In principle, the concept of piercing and lifting the corporate veil is not recognised in Qatar.
The Qatari courts might consider piercing and lifting the corporate veil where conclusive
proof is submitted to the court in relation to the fictitious character of the company owning
the ship.
Such a sale could be authorized only if the ship is under the risk of a quick deterioration and
in a situation that endangers third parties.
253
SHIP ARREST IN ROMANIA
By Adrian Cristea*
CRISTEA & PARTNERS Law Office
adrian@cristealaw.ro
www.cristealaw.ro
54 Cuza-Voda Street, flat 3, G-floor, 900682 Constanta
Tel: +40 744 518 583
Fax: +40 241 518802
By Augustin Zabrautanu*
ZABRAUTANU & ASSOCIATES
augustin.zabrautanu@pialaw.ro
www.pialaw.com
37 Mircea Voda Blvd, BL. M 29, SC. A, G-Floor, Apt. 3
Sector 3, 030663 Bucharest
Tel: +40 21 336 73 71
Fax: +40 21 336 73 72

Conditions imposed by Romanian law :
a) Indicate and provide evidences to the Court that plaintiffs have started the main legal ac-
tion (Court action or arbitration proceedings according to the provisions of the C/P or B/L)
against the defendant. The evidence should be a letter from a Court, apostilled according to
Hague Convention 1961 or a letter from the arbitrator appointed showing that arbi-
tration has started;
b) Indicate and provide evidences to the Court that the defendant in the main proceedings
is the owner of the vessel;
c) Provide a bank letter of guarantee to the Court as a percentage of the claimed amount
(the amount will be fixed by the Court but in most of the cases is 10%). In accordance with
the new Civil Procedural Code which entered into force on 15th of February 2013, the
amount of the guarantee should be placed in cash and is limited at 20% of the claimed
amount.In cases where no written evidences concerning the relations between the creditor
and the debtor are presented to the judge, the amount of the guarantee will be fixed at 50%
of the claimed amount. Such cases may be for example cargo claims. The main purpose of
such bank letter of guarantee is to compensate the losses of the defendant owner if finally
the claim of the plaintiff will be found ungrounded by the Court.
In case the matter is very urgent, vessels can be provisionally arrested through the Harbor
Master, paying a tax of Euro 400 (Saturdays and Sundays Euro 800).
A notice of arrest will be notified to the Harbor Master.
Harbor Master will place the order of arrest to the vessel’s file and will not interrupt in any
way vessel’s operations. Notice of arrest will become effective when the vessel will finalize
operations and vessel’s agent will attend Harbor Master to receive vessel’s permit to leave
outside. Starting with the hour when vessel’s agent will ask for the Permit to leave, Harbor
Master will count 24 hours (Saturdays and Sundays are not included within this hours an-
yway) and the vessel will be arrested for 24 hours. During these 24 hours, plaintiff will need
to apply to the Court asking for the arrest of the vessel. Courts are judging these cases on
an urgent basis and normally are issuing the decision within 24 hrs. There is no need for the
time being to place the counter-security which will be requested by the Court at a later stage.
Court costs are low. Lawyer fees normally calculated on hourly basis Costs are usually reco-
verable from defendant.
Romania has acceded to the International Convention for the unification of rules about the
254
arrest of vessels, signed in Brussels on May 10th 1952, on November 8th 1995. For the parti-
cipant states of the 9th Diplomatic Convention of Maritime Law, it was enforced on February
24th 1956.
Article 8, paragraph 1 of the Convention provides that its provisions are applicable in any
contracting state to any vessel that carries the flag of a contracting state. Paragraph 2 of the
same article concedes the possibility that vessel that carries the flag of a non-contracting
state may be arrested in one of the contracting states according to one of the claims listed
in Article 1, or according to any other claim that permits the arrest according to the laws of
that state. Romanian Courts are applying this principle when are taking into consideration
the arrest of one vessel in Romanian jurisdiction.
No.
No.
A ship can be arrested in Romania for one or more of the claims listed in article 1.1 of the
1952 Arrest Convention. Ships may be arrested in Romania also for one or more of the claims
listed by the 1926 maritime liens and mortgages Convention.
6. Can you arrest a ship irrespectively of her flag ?
Paragraph 2 of the article 8 of 1952 Arrest Convention mentions the possibility that vessels
that carries the flag of a non-contracting state may be arrested in one of the contracting
states according to one of the claims listed in Article 1, or according to any other claim that
permits the arrest according to the laws of that state.
As already mentioned, it is compulsory to indicate and provide evidences to the Court that
the defendant in the main proceedings is the owner of the vessel.
Sister ships may be arrested in Romania, following the provisions of the articles 951-952,
959-968 of Romanian Civil Procedural Code and not the provisions of the 1952 Arrest Con-
vention. Romanian Courts are reluctant to order the arrest of sister ships, although this is
possible. Ships in associated ownership cannot be arrested in Romania.
Bareboat and Time-Chartered vessels cannot be arrested in Romania for the claims against
the Bareboat and/or Time-Charterer.
Court will order to provide a bank letter of guarantee to the Court as a percentage of the
claimed amount (the amount will be fixed by the Court but in most of the cases is
10 % ). In accordance with the provisions of the new Civil Procedural Code the amount of
the guarantee may be increased up to 20% of the claimed amount and needs to be placed
in cash at the disposal of the Court. In cases where no written evidences concerning the
relations between the creditor and the debtor are presented to the judge, the amount of the
guarantee will be fixed at 50% of the claimed amount.
Arrest of a ship for a maritime claim will be done according to the procedure established by
the 1952 Arrest Convention also in case of arrest of a ship for a maritime lien mentioned by
the 1926 maritime liens and mortgages Convention.
Romania recognizes maritime liens according to 1926 Maritime Liens and Mortgages Con-
vention. Romania is not a party to the 1993 Maritime Liens and Mortgages Convention.
255
to your law firm?
A notice of arrest will be notified to the Harbor Master.
Harbor Master will place the order of arrest to the vessel’s file and will not interrupt in any
way vessel’s operations. Notice of arrest will be placed immediately as the file arrives to our
law firm and an Engagement Letter, even by e-mail and/or fax, will be signed with the client.
Based on the Engagement Letter signed by client , law firm will provide to the Court a power
of attorney in the standard format prescribed by the Lawyers statute.
There is no need to provide original documents to the Court, only copies mentioned to be
true copies will be provided to the Court, on the understanding that originals will be kept by
the law office. It is necessary to be provided with originals of the documents, or Notary cer-
tified copies in order to translate them into Romanian and present legalised translations to
the Court, taking into consideration that Public Notaries will not legalise translations without
being provided with the originals of the documents. The evidence that main claim procee-
dings has been instituted should be a letter from a Court, apostilled according to Hague Con-
vention 1961 or a letter from the arbitrator appointed showing that arbitration has started.
No.
Arrest cannot be requested if legal action on the merits has not yet started prior to the appli-
cation to the Court. According to the new Civil Procedural Code ,it is possible that, in urgent
cases, arrest of the vessel to be permitted without the need to commence substantive claim
proceedings in advance. In such a case, substantive claim proceedings has to be commen-
ced in 20 days from the date the arrest application has been admitted by the Court.
Yes. In practice, it is very difficult to prove such a claim.
No.
No.
21.What is the procedure to release a ship from arrest ?
As long as the debt have been paid or a Letter of Undertaking have been provided in order
to release the ship, the debtor will request the Court to release the vessel from arrest. The
Court will release the vessel from arrest on urgent basis.
22.What type of security needs to be placed for the release?
In accordance with Civil Procedural Code provisions, the security needs to be provided in
cash at the disposal of the Court. Only in case the creditor agrees, the debtor may provide a
bank Letter of undertaking or a P&I Letter of Undertaking at the disposal of the Court.
23.Does security need to cover interest and costs ?
Yes.
24.Are P&I LOUs accepted as sufficient to lift the arrest?
The P&I LOUs may be accepted by the Court for lifting the arrest only in case the creditor
agrees to accept such undertakings.
256
25.How long does it take to release the ship ?
1-2 days usually;
26.Is there a procedure to contest the arrest ?
The arrest order issued by the Court may be appealed to the Court of Appeal.
*Adrian has written several articles exclusively on maritime law published by well-known Romanian publications such as “Law” and “Com-
mercial Law Journal” as well as by the English “International Journal of Shipping Law”. In 2001, he published the “Maritime Law” Book.
Adrian current practice focuses on commercial and maritime law, international trade law, private international law, insolvency & bankruptcy
law, intellectual property law, real estate, administrative and tax law.
Lawyer within the Constanta Bar Association since 1996. He also regularly acts as an arbitrator within the Romanian International Com-
mercial Arbitration Court. He is an authorised mediator and insolvency practitioner. He speaks English and Romanian.
*Augustin Zabrautanu is a graduate of Bucharest University. He is a licensed attorney in Romania. His post graduate activity included
Master in maritime law at Constantza Maritime University, private legal practice and criminology at Bucharest University School of Law.
He is a member of the Bucharest Bar.
Although Augustin is a experienced and dedicated criminal law litigator, his current practice focuses on commercial and maritime law, inter-
national trade law, private international law, insolvency & bankruptcy law, intellectual property law, real estate, administrative and tax law.
Starting with 2005, Augustin Zabrautanu and his colleagues had successfully represented numerous and various clients (both of domestic
and international companies), in a broad array of maritime issues, including arrest of ships. Augustin speaks English and Romanian.
257
SHIP ARREST IN RUSSIA (Questions 1 to 9)
Andrey Kosmachevskiy & Andrey Suprunenko*
REMEDY Law Firm
general@remedy.ru & ankos@remedy.ru
www.remedy.ru
40-42 Nevskiy av. 191186, St. Petersburg
Tel: (+7 812) 702-51-00
Fax: (+7 812) 702-51-01

The ship arrest practice in Russia is wide and may be different due to the differences in court prac-
tice in regions – west, south, north, east. Basic ports where there is wide practice of ship arrest are:
St.Petersburg, Novorossiysk, Vladivostok, Kaliningrad, Murmansk.

Russia ratified the International Convention on the Arrest of Sea-Going Ships (10 May 1952, Brus-
sels). The provisions of this Convention are mandatory applicable to all ships flying the flag of
another Contracting State and calling at Russian ports. Merchant Shipping Code of Russia (1999)
is the domestic law which implemented basic principles of the 1952 Brussels Convention and
even Merchant Shipping Code (1999) is an advance over the 1952 Brussels Convention as it is
based on principles of International Convention on Arrest of Ships (Geneva, 1999 ) especially in
regard to the wide list of claims subject to ship arrest. According to both above mentioned Con-
ventions a ship may be arrested only under the authority of a Court. The regulations of procedure
for the Court in Russia are defined in two Codes: the Civil Procedural Code of Russia and Arbitra-
tion Procedural Code of Russia. In general the Civil Procedural Code defines the procedure for the
physical persons acting as claimants or applicants, and the Arbitration Procedural Code defines
the procedural for the legal entities.

Due to absence in above mentioned procedural codes of special clauses devoted to the ship
arrest there is a way to arrest the ship as property of the debtor (regardless of status of a ship as
special kind of property) by means of filing to the Court the application for the arrest of property
of the debtor. Such application is filed together with the statement of the claim. The ship may be
arrested also under criminal or administrative procedure as exhibit of case or as subject of criminal
or administrative offence.

There is a way to arrest the ship as property of debtor in security of civil action as well as in the
bankruptcy proceeding.

Under Domestic Law - In Merchant Shipping Code of Russia (1999) the whole list of maritime
claims (a to v) from the 1999 Geneva Convention is included. The domestic law is applied by the
Russian courts mostly in respect of the Russian flag seagoing vessels. Under the 1952 Brussels
Convention – the Russian courts are more or less in line with the list of the maritime claims indica-
ted in the 1952 Brussels Convention. But the courts apply this Convention mostly to the foreign
flag vessels.

You can arrest a ship irrespectively of her flag.

According to the 1952 Brussels Convention which was ratified by Russia a ship may only be arres-
ted in respect of a maritime claim only. Therefore bearing in mind the regulations established in
the Arbitration Procedural Code of Russia the claimant first of all should prove the existence of
258
the maritime claim in respect of the specific ship and same time the claimant should prove that
the claim arose due to the actions of the specific debtor in respect of this specific ship when (as
the claimant supposes) the debtor was the owner/ charterer of this ship. It may lead to that the
real owner of the ship will try to object the arrest saying the ship never belongs to the debtor.
The claims “in rem” can not be initiated in Russia. Certain claims may follow the ship regardless in
whose hands it may be, e.g. claims for crew wages, salvage, port dues (maritime liens).
It is possible to arrest sister ship as the property owned to same debtor.

The provisions for the arrest of the vessels in accordance with the domestic law are the same as in
the Convention, 1999 article 3 par.(1)-(2). If the Convention, 1952 is to be applied then the provi-
sions for the arrest from Convention, 1952 will be applied.
*For more than 15 years Remedy Law firm helps in obtaining a highly professional and commercially oriented advice on issues relating
to shipping and transportation in the widest range. Remedy Law Firm deals mainly with claims handling, represents cases of its clients in
common law courts, arbitrations and appeals courts on all aspects of civil, maritime and administrative law, scrutinizes documentation and
its enforceability under Russian and international laws and gives legal opinions on different issues.
We also offer advice on the interpretation of charter party clauses, bills of lading, insurance policies and other contracts.
Mr. Andrey Suprunenko is a director of the firm. Mr. Andrey Kosmachevskiy is a lawyer.
259
SHIP ARREST IN RUSSIA (Questions 10 to 26)
By Alexander Mednikov*
JURINFLOT
Alexander.Mednikov@jurinflot.ru
www.jurinflot.ru
PO Box 60 Moscow, 109147 Moscow, Russia
Tel: (+7 495) 792-57-01
Fax: (+7 495) 792-57-00

In accordance with article 393 of the Code of Merchant Shipping, the court or arbitration which
considers the application on arrest of a ship, may (but is not obliged to) order an applicant for
arrest to provide security against any damages which may be caused by arrest and for which
the applicant may be held liable. Amount and terms of such security shall be determined by the
court. In practice, courts often require such counter-security as a condition for imposition or con-
tinuation of arrest of the ship. Therefore, the applicants should normally be prepared to provide
counter-security in advance (together with application) in order to increase the chances of suc-
cess of arrest application.
However, counter-security may not be required from the applicant which demands arrest of a
ship on the basis of a claim for amounts due to the master or crew of the ship for their work on
board.
11. Is there any difference in respect of arresting a ship for a maritime claim and a maritime lien?
In accordance with the Code of Merchant Shipping (article 388), a ship may only be arrested on
the basis of a maritime claim. However, all types of claims which are, under the Russian law, secu-
red by a maritime lien are, at the same time, included in the list of maritime claims provided by the
CMS. Therefore, there is no practical difference in arrest procedures whether the maritime claim
is secured by a lien or not.
12. Does your country recognize maritime liens? Under which international Convention, if any?
Yes it does - by the Federal law dated of 17/12/1998, Russia acceded to the International Conven-
tion on Maritime Liens and Mortgages of 1993.
your law firm?
In practice, and in an optimistic scenario, it normally takes 4-5 days from the date of arrival of the
full package of necessary documents is the shortest term to have the vessel arrested: (a) on day 1
the documents arrive and [if the documents come from abroad] - a certified translation of foreign
documents is arranged; (b) on the evening of day 1 or the morning of day 2, the authorized
lawyer leaves for the city where the territorially competent court is located (normally – the arbi-
tration (commercial) court of the), (c) on day 2, the application for arrest with attachments is filed
to the competent court; (d) on day 3, the court considers the application and grants the arrest,
(e) on day 3 or 4, the court issues an executive order on the basis of its decision by which arrest
is granted, (f) on day 4 or 5, executive order is submitted to the bailiffs service which commences
executive procedure and filed the executive order to the harbor-master of the port where the
vessel is located. In practice of some (but not all) courts and ports, procedure may be speeded-up
by 2 days if the court is requested to include in the arrest ruling the order to the harbor-master not
to grant to the vessel the permission to leave the port. It such order is included in the ruling, the
vessel will be effectively immobilized before involvement of the bailiffs.
It must be noted, though, that in order for the above-mentioned time-frames to be observed and
for the arrest to be successfully obtained, coherent work between the clients and the lawyers is
required at the preparatory stage, so as to ensure that the correct information is provided for dra-
fting of an application and the necessary support documents are also supplied.
14. Do you need to provide a POA, or any other documents of claim to the court?
Yes, the POA is necessary. Documents which confirm the existence of a maritime claim must also
260
be provided in order to confirm the existence of grounds provided in the law for imposing the
arrest.
Of the documents filed together with the application, only the POA needs to be in original (or a
copy certified by the notary public). Other documents may be presented in copy certified by the
applicant (an endorsement saying ‘true copy of an original’, a signature of a director and a com-
pany stamp). A general requirement of the law is that documents in the foreign language must
be accompanied by a certified translation into Russian and that a document obtained abroad
must be legalized, unless such requirement is abolished by an international treaty to which Russia
is a party (for example, the Hague convention of 05/10/1961 and other multi-lateral or bilateral
treaties, including the ones with CIS countries, Baltic countries, India, Argentina, Poland, Spain,
etc.). In practice, commercial documents are not required to be apostilled but do require a certified
translation.
Filing of documents in electronic form is also possible.
16. Will the Courts accept jurisdiction over the substantive claim once a vessel has been arrested?
When an arrest over the ship has been imposed in Russia, the Russian courts may accept jurisdic-
tion over the substantive claim in cases provided for by the 1952 Convention:
- if a person which is a creditor under such claim has its main place of residence or business in
Russia;
- if the substantial claim arose in Russia;
- if the claim relates to the voyage during which the arrest was imposed;
- if the claim arose from a collision or from other damages caused by one vessel to another vessel,
or to people or goods on board of such a vessel;
- if the claim arose from salvage;
- if the claim is based on mortgage of the arrested vessel.
Alternatively, Russian courts may accept jurisdiction over the substantive claim on one of the ge-
neral grounds which the procedural legislation provides for Russian courts to consider matters
with foreign element. They include, i.a.:
- defendant having a place of residence, place of business or property located in Russia;

- the dispute arising from the contract which was intended to be fulfilled on the territory of Russia;
- the dispute arose out of damage to property, if such damage was caused or arose on the territory
of Russia.

Release from arrest is allowed only in case if sufficient security is provided (or the maritime claim in
question is satisfied for good) and is effected on the basis of a ruling of a tribunal which ordered
the arrest. In case if the bailiffs have been involved in the arrest, they also need to be notified of
the tribunal’s ruling and must terminate their execution proceedings.

Type and value of security may be determined by the agreement of the parties concerned. In case
if the parties fail to reach such agreement, these issues may be determined by the tribunal which
handles arrest proceedings. In the latter case, value of security may not exceed the value of the
ship arrested but if the value of a ship is higher that the extent of the underlying claim, security in
amount of the claim (including also the reasonable costs and interest) will in most cases be suffi-
cient. Acceptable form is either to be agreed on by the parties or by the competent tribunal and
may be provided in the form of deposit on the account of the court, pledge of other property or
guarantee/surety from the third party (banks, insurers including P&I clubs).
Yes, security, unless it would exceed the value of the ship, would need to cover also interest and
costs accrued by the respective time (i.e. date of application for release).
20. Are P&I LOUs accepted as sufficient to lift arrest?

P&I LOUs are starting to be accepted as forms of security.
261
Release of a ship would, in practice, require at least two-three days: the courts are obliged to consi-
der pleas for termination of security measures not later than the next day after filing of such pleas
(provided that the defendant also submitted proof of providing the counter-security) and in case
if arrest has been effected by the bailiffs, the latter would need to be notified and take respective
action as well.
Arrest (as any other security measure imposed by the tribunal), in addition to being lifted in case
of provision of security, may be contested by filing a respective plea to the tribunal is case if the
arrest is unfounded (for example, when the vessel does not have the relation to the debtor which
allows it to be arrested).
23. Which period of time will be granted by the Courts in order for the claimant to take legal
If arrest will be treated as a preliminary security measure for the purposes of commencing the
main suit in the Russian court, than such period will be determined by the court in its ruling by
which arrest will be granted. But in any event, it should not exceed 15 days.

Russian courts have a right to refuse application of arrest. When the judge considers the applica-
tion, he/she refuses or satisfies it on the basis of its internal conviction. Also, as mentioned above,
it is possible for the court to order the applicant to provide counter-security against any damages
which may be caused by the arrest, including wrongful arrest and to determine the extent of
applicant’s liability in such case.
It may be said that at present, Russian courts dealing with maritime claims will not be likely to
pierce/lift the corporate veil, but at the same time, in one of the acts of the Supreme Arbitration
[Commercial] Court (in a case completely unrelated to shipping), the doctrine of piercing the
corporate veil was expressly acknowledged, so it is quite possible that this doctrine will gain wider
application in Russia in the near future.
No.
*Since 2003, Alexander Mednikov is a partner in “Jurinflot International law office”, a Russian law firm which specializes in maritime law. His
primary professional interests include ship finance and vessel mortgage, as well as joint-ventures and M&A in shipping and other spheres.
Alexander graduated with honours from the law faculty of the Russian Peoples’ Friendship University and speaks English and French.
262
SHIP ARREST IN SAUDI ARABIA
By Omar N. Omar*
o.omar@tamimi.com
www.tamimi.com
2nd floor, Sky Tower (South Tower S.2.A), King Fahad Road,
Al Olaia Area, PO Box 300400, 11372, Riyadh
Tel: +96893332341

KSA laws and regulations do not regulate ship arrest in specific. Therefore, the general legal
principles of precautionary attachment procedure stipulated for in the KSA Enforcement Re-
gulations will apply to the arrest of ships in KSA. According to these Regulations, a creditor will
have the right to attach the assets of his debtor if he succeeds in proving that he has a credible
claim against the defendant and has a legitimate fear that the defendant might dissipate his
assets. The arrest application is normally submitted to the Court of First Instance. The court will
consider the application on a prima facie basis and the arrest order will be issued in chambers
on an ex-parte basis.

KSA is neither a party to the International Convention on the Arrest of Seagoing Ships of 1952
nor to the International Convention on the International Convention on the Arrest of Ships of
1999.

Ships may be arrested in KSA in reliance to the Enforcement Regulations which contain general
provisions in relation to conservatory attachment of assets (please see above question no. 1).

No. The saisie conservatoire procedure will apply to the arrest of ships in KSA.

In general, a ship can be arrested for any claim which the claimant has against the owner of the
ship or the ship, provided the claim is proven, on the face of things, to be serious and grounded.

Yes. A ship anchored within the territorial waters of KSA can be arrested irrespective of the flag
she is flying.

In general, a ship can be arrested for any claim which the claimant has against her current
owner provided that the claim is proven, on the face of things, to be serious and grounded.
However, in certain circumstances especially where the claim is secured by a maritime lien,
it could be argued in court that the creditor has a recourse against the ship regardless of the
owner’s identity.
According to KSA regulations, there is no legal provision which gives the creditor the right to
arrest a ship unless its owner is responsible for the maritime debt. The arrest of a sister ship
might be possible (without being guaranteed) providing that they are both owned by the same
party who is a debtor of the arresting party.
The arrest of associated ships is not possible in KSA.
263
The arrest of a ship for a charterer’s might be possible if it is proved that the creditor has a ma-
ritime lien (see question no. 7).

Yes.
In practice there is no difference between the arrest of a ship for any debt and the arrest of ship
for a maritime lien.
KSA did not accede to any of the International Conventions relating to Maritime Liens.
The Commercial Court Regulations which regulates maritime transport in KSA and article 154 of
the Regulations enumerates the following maritime lines:
a) The costs of a court action and other costs involved in the sale of the ship and the distribution
of the sale proceeds.
b) The pilotage fees, tonnage dues and any other general charges made by ports, harbours and
docks, also all compensation payable for damage caused to the technical installations of ports,
harbours and docks.
c) The costs of guarding and maintaining the security of the ship from the time that the ship
enters port preceding its sale until such time as the sale is concluded.
d) The cost of rental for the warehouse in which the tools and equipment of the ship are deposited.
e) The maintenance costs of the ship and its machinery and other equipment during its last
voyage and from the time it enters and moors in port.
f) The wages of the master and crew who were employed on the vessel for its last voyage.
g) Money borrowed by the master during the vessel’s last voyage and the price of the goods
sold out of the cargo for the vessel’s necessaries.
h) The balance remaining as a debt to the vendor of the ship before it left for the voyage, also
loans, and the wages of employees engaged on the construction of the ship, sums paid out
for the necessaries and repair of the ship before sailing, and , in general, all monetary amounts
expended on the ship before departure.
i) Maritime loams taken out on the vessel and its appurtenances before sailing for the purpose
of provisioning the ship and purchasing necessary stress as well as preparing it for the voyage.
j) The insurance premiums for the ship and its appurtenances during the last voyage.
k) The ship’s share in general average loss which includes compensation to be paid to the ship-
pers as a result of the loss and damage of goods and items shipped, also the loss and damage
of cargo on account of some default on the part of the master and crew.
your law firm?
in KSA, the ship can be arrested within 48 to 72 hours.
A POA duly notarised and legalised up to the KSA Embassy must be submitted to the competent
Court of First Instance with the arrest application. In addition, we need to attach to the arrest
application all the documentation supporting the claim against the ship. In this context it must
be noted that the official language in KSA is Arabic which means that all documents in foreign
language must be translated into Arabic by a sworn translator in KSA prior to submission.
The arrest application must be submitted manually to the competent Court of First Instance as
electronic filing is not available. The documentation supporting the claim must be attached to
the application and if this documentation is in foreign language it must to be translated into
Arabic language. Only official documents must be legalised up to the KSA Embassy at the place
of issuance and then legalised by the Ministry of Foreign Affairs in KSA.
264
No they will not.

the coast guard.

The only type of security acceptable by the court is bank guarantee issued by a local bank.


P&I LOUs are unacceptable by KSA Courts.


The defendant to the arrest application may file an appeal before the Court of Appeal. Upon
hearing the appeal, the Court may make an order lifting the arrest order and such judgment
shall be enforceable through the normal channels.
The applicant must, within ten days starting from the issue of the arrest order, file substantive
proceedings before the competent court to sustain the arrest order, failing which the arrest
order will be void ab initio.

from the arrest.
This concept is not recognised in KSA.
In principle, it is not possible unless we succeed in proving to the Court that the ship is under the
risk of a quick deterioration and in a situation that endangers third parties.
265
SHIP ARREST IN SCOTLAND (Questions 1 to 9)
By Bruce Craig*
Pinsent Masons LLP
Bruce.Craig@pinsetmasons.com
www.pinsetmasons.com
13 Queen´s Road, Aberdeen AB15 4YL
Scotland, UK
Tel: +44 1224 377900
Fax: +44 1224 377901

The right to arrest a ship in Scotland derives from Part V of the Administration of Justice Act 1956.
This part is headed “Admiralty Jurisdiction and Arrestment of Ships in Scotland”. This has been
amended over the years, most recently by the Bankruptcy and Diligence etc (Scotland) Act 2007
which is an Act of the Scottish Parliament.
For the ship to be capable of being arrested in Scotland in security of a claim it must be the very
ship with which the dispute is concerned and the defender must either own at least one share in
the ship or be the bareboat charterer. Alternatively, a ship can be arrested where the defender
owns all the shares even if it is not the ship with which the dispute is concerned.
If the Scottish courts would not otherwise have jurisdiction, the ship can be arrested in a Scottish
Port “to found jurisdiction”. Arresting in this way however merely gives the court jurisdiction, but
does not create any security over the ship itself.
A Claimant (Pursuer/Plaintiff) can often obtain a significant advantage by being able to arrest a
ship at the outset of a court action for payment. This is one of the few instances in Scots Law whe-
re it is feasible for a Claimant to obtain security pre judgement. It is necessary to go to the court
(either the Court of Session in Edinburgh or the local Sheriff Court) to seek the permission of the
Judge to arrest the ship if the case can be brought within one of the many categories listed in the
1956 Act. If the Judge grants the permission then the ship can be arrested by Court Officers even
without the alleged debtor (or anyone else associated with the ship) necessarily being aware up
to that point that an arrest is being contemplated, far less that it is imminent. The court papers
then require to be served on the Defender (Defendant) albeit that the papers can be served on
the ship itself if what is raised is an action in rem in respect of a maritime lien such collision, salvage
or for crew wages. The Defender then has an opportunity to challenge the arrest with the Pursuer
being liable in damages if it is found to be an unlawful arrest.

The United Kingdom (of which Scotland forms part) is a signatory to the International Convention
Relating to the Arrest of Seagoing Ships 1952. This was brought into UK domestic law by the
1956 Act. Jurisdiction is governed by the Brussels Convention 1968 and the Lugano Convention
1988. These were introduced into UK Law by the Civil Jurisdiction and Judgements Act 1982 as
amended.

Port Authorities in Scotland have the right to detain a ship for non-payment of harbour dues in
terms of the Harbours, Docks and Piers Clauses Act 1847. Detention under the 1847 Act is the
equivalent of arrestment. It is also possible to arrest a ship in a Scottish port in implementation
of an order of a foreign court. Such an arrestment must comply with the Civil Jurisdiction and
Judgements Act 1982. In certain circumstances, arbitration judgements can also result in ship
arrest in Scotland.
4. Are there alternatives, for example saisie conservatoire or freezing orders?

Scots Law does not provide any alternatives beyond arrestment under the 1956 Act, detention by
a Port Authority and in respect of a foreign action, all as referred to above.

A ship can be arrested in a Scottish port in implementation of a Court or Arbitration Judgement.
266
More common, however, is an attempt to arrest on the dependence of an on-going court action.
Where the entrance requirements set out at number 1 above apply, 47 (2) of the 1956 Act lists
various circumstances in which arrestment on the dependence is permissible. These categories
include damage done or received by any ship, loss of life or personal injury relating to the ship,
salvage, any agreement relating to the use or hire of any ship, loss of or damage to goods carried
in any ship, towage, pilotage, liability for dock charges or dues and Master’s disbursements.
The question of flag is irrelevant to arrest in Scotland except that UK ships owned by the Crown
and ships which themselves are owned by foreign states cannot be arrested unless they have
been contracted for commercial purposes.

Scots Law recognises the exercise of a right in rem in certain specific circumstances, for example
in relation to collision damage and salvage. Where there is a right in rem a court action can be
raised directly against the ship with the court papers served on the ship itself. This can create a
significant advantage for a Claimant since it obviates the need which would otherwise exist to
serve the court papers on the owner which of course might be abroad in a remote jurisdiction.
As set out above, it is possible to arrest sister ships and ships in associated ownership so long as
all the shares in the ship being arrested are owned by the Defender in the court action. Common
ownership is however now relatively unusual.
9. What is the position as regards bareboat and time-chartered ships?

Bareboat chartered ships can be arrested in Scotland where the alleged debtor is the bareboat
charterer. Ships under time charter can however only be arrested in respect of an action in rem.
*Bruce Craig is a Partner in Mackinnons, a Scottish Law Firm. He deals primarily with marine claims and litigation including ship arrest.
He is highly experienced in offshore and shipboard accident and casualty investigation. He regularly acts for shipowners, charterers,
offshore drilling contractors, P & I Clubs and marine insurers. He regularly presents in the UK and abroad at conferences on Charterparties.
267
SHIP ARREST IN SCOTLAND (Questions 10 to 26)
By Tim Edward*
MACLAY MURRAY & SPENS LLP
tim.edward@mms.co.uk
www.mms.co.uk
Quartermile One, 15 Place Lauriston
Edinburgh EH3 9EP, Scotland, UK
Tel: 0330 222 0050
Fax: 0330 222 0052

No, counter-security is not required
A ship may be arrested to satisfy a maritime lien or it may be arrested to secure a debt pending the
outcome of a court action. A maritime lien gives rise to a real right: a right which is good against the
world and not just an individual. Where the pursuer has a real right by virtue of a maritime lien, an
action is brought to arrest the vessel in rem. This means the action is brought against the ship itself
i.e. the ship is named as defender in the action. Therefore an action to enforce a maritime lien can
be brought against the relevant ship, regardless of any change of ownership that has taken place.
By contrast, where an action is raised against the owner of a ship, and the vessel arrested as security
against the debt litigated upon, this is an arrestment in personam. The right to arrest a ship in a mari-
time claim based on a personal right will not survive a change of ownership. An action can be raised
both in rem and in personam where the pursuer has rights against the owner and the vessel.
Yes, Scotland recognises maritime liens. Liens can arise from things such as collisions, where a lien is
created over the vessel at fault, from the contractual claims of seamen for their wages, or from salvage
where a maritime lien is created in favour of the salvor.
law firm?
The time required will depend on the complexity of the facts. If the papers are available and in order,
it might be possible to obtain a warrant from the court and have the arrestment formally executed
in a matter of hours.
No. Power of Attorney is not required, however the Court would expect to see evidence of ownership
of the vessel to be arrested and proof of the debt alleged to be owed.
The documents required will depend on the facts of the case. Generally, copy (not original) docu-
ments are lodged with the court. Documents cannot currently be filed electronically.
The general answer to this is yes, however there are numerous complexities and advice would need
to be taken with regard to the specific circumstances of each case. Scotland is subject to Council Re-
gulation (EC) 44/2001 as well as the 1968 Brussels and the Lugano Conventions. These instruments
would be applied by the court in deciding whether to accept jurisdiction over the underlying dispute.
The existence of any exclusive jurisdiction clause or arbitration clause in an agreement between the
parties would also be a relevant factor.

The procedure for release of a ship from arrest in Scotland is by way of motion to the Court in which
268
the warrant for arrest was granted for recall of arrestment either on the basis that the arrestment is
incompetent or otherwise not lawful or is not a reasonable use of diligence having regard to all the
circumstances (including the strength of the arrestor’s prima facie case and the debtor’s financial
standing) or else on the basis of sufficient alternative security being provided.

The normal form of alternative security for release of a ship from arrest is a letter of undertaking from
owners’ P&I Club or other reputable insurer to settle any award or agreed settlement sum in respect
of the arrestor’s claim in full. However, cash consigned in Court or a bank guarantee or bond from a
reputable insurer are also potentially acceptable forms of security.

Security requires to cover interest and costs. Judicial rate interest in Scotland is 8% (although in some
situations this may be subject to challenge as out of line with commercial interest rates) and expenses
are recoverable on a scale which tends to allow for recovery of roughly 60% of actual costs incurred.
The figure for security in respect of interest and costs will be an estimated figure.

P&I Club Letters of undertaking are usually accepted as sufficient security for release of an arrestment
provided it is a reputable Club and the terms of the letter are adequate.

Release of the arrestment can be immediate. A hearing can be fixed at short notice outside normal
Court hours if necessary and if the arrestment is deemed to be invalid or if suitable alternative security
is provided the Court will grant recall and on provision of the Court’s order or agreement from the
arrestor to release to the Harbour Master the arrestment will be released with immediate effect.

When the arrestment order is granted a hearing will be fixed shortly afterwards at which the ship
owner is entitled to attend and contest the arrestment. If there is urgency, it is possible for the ship
owner to apply for recall immediately at any point from the time of arrestment and such an applica-
tion can be heard within hours.
on the merits?
The action is deemed to have commenced at the point at which the summons or writ is served on
the defender, after having been approved by the court. Defenders within the EEA are given 21 days’
notice and defenders domiciled outwith the EEA are given 42 days’ notice before the case then calls
in court.

Yes, wrongful arrest is a delict (tort). Care should be taken in deciding whether to arrest a ship as
wrongful arrest can result in significant damages being awarded against the arresting party.
Yes, however piercing of the corporate veil will only occur in exceptional circumstances, generally
where it can be shown that the corporate structure has been used to defraud or evade liabilities.
This is not possible in Scotland.
*Tim Edward is shipping litigation partner with Maclay Murray & Spens. He has been with the firm since 1990 and a partner in the Dispute
Resolution Department since 1996. He has dealt with a wide variety of shipping disputes over that period, including arrestment of vessels
in Scottish waters, personal injury claims arising from accidents at sea, pollution and salvage claims and claims arising from collisions
and cargo loss and damage. He has acted for owners, cargo interests and Clubs and notable clients have been North of England P&I,
Steamship Mutual P&I, Transocean, Schlumberger and most of the major London shipping law firms.
269
SHIP ARREST IN SENEGAL
By Philippe Pruvot
3A AFRIQUE DAKAR
legal@group3a.com
Route de l’aéroport Leopold Sedar Senghor, Foire Ouest
BP 25897 Dakar Fann
Tel: +221 8 2546 0770

The procedure of arrest enables a natural or legal person who has a maritime claim relating to a
ship to detain her it when there is not any enforcement title and obtain a Bank guarantee. This
Bank guarantee enables the creditors to recover their debt after having obtained an enforcea-
ble decision against the ship/her Master/her Owner or after having obtained an enforceable
decision to sell the ship.
The arrest order issued by the President of the Court is notified to the ship, to the Port Harbour
Master and to some other Competent Port Authorities.

Senegal did not ratify the Brussels International Convention dated 10th May 1952 but accepted
to apply it after having accessed independence.

The answer is no. There is however a difference between “saisie conservatoire” and “saisie exé-
cutoire de navire”.

These alternatives are “saisie conservatoire” which means “arrest” and not freezing orders.

In such procedure, when the Brussels Convention applies, the arrest must be justified by a ma-
ritime claim as defined by the article 1 § 1 of the Brussels Convention. Usually, the Courts easily
issue easily an arrest order when the claim appears to be justified.

The answer is yes because, as per the Article 8 § 2 of the Brussels Convention “A ship flying the
flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in
respect of any of the maritime claims enumerated in Article 1 or of any other claim for which the
law of the Contracting State permits arrest”.

The debtor is usually either the owner or the charterer of the ship. The quality of the debtor is
however not so important given that the debt is “in rem”.
The article 3 §2 of the Brussels Convention provides that “Ships shall be deemed to be in the
same ownership when all the shares therein are owned by the same person or persons”. Conse-
quently, the ship which is directly linked with the maritime claim or which is owned by the same
owner or associated owner can be arrested by the creditor.

The article 3 §4 of the Brussels Convention provides that “When in the case of a charter by de-
mise of a ship the charterer and not the registered owner is liable in respect of a maritime claim
relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the
270
charterer by demise, subject to the provisions of this Convention, but no other ship in the ow-
nership of the registered owner shall be liable to arrest in respect of such maritime claims. The
provisions of this paragraph shall apply to any case in which a person other than the registered
owner of a ship is liable in respect of a maritime claim relating to that ship”.
The international Convention points out the cause of the debt, i.e. a maritime claim relating to
the ship.

The answer is no. It is sufficient to evidence that the claim is a maritime claim and relates to the
ship.
The procedure is exactly the same, i.e. obtain an arrest order from the Court by evidencing the
reality of the maritime claim relating to the ship.
Senegal recognizes Maritime Liens and Mortgages but does not apply any International Con-
vention but local Laws.
your law firm?
If the file is complete, the arrest could be obtained within the same day of reception of the file.
The commercial invoices, the Bills of Lading, the preliminary survey report if any would be requi-
red. However, there is no need to submit any power of attorney.
It is usually better to submit original documents. If it is impossible however, copies of the do-
cuments sustaining the claim can be transmitted by e-mail or fax. The Documents in English
Language must be translated into French.
In principle, once the vessel is arrested in Senegal, the Courts accept jurisdiction.

If the claim is not denied, the best procedure is to negotiate with claimants so that they accept
a security. If the claim is denied, then it is possible to proceed under short notice before a judge
who would be able to examine the request and order the release when arguments to do so
are consistent.

The best security would be to offer a bank guarantee so as to obtain the ship release.

It could be required by claimants that the security covers interest and costs.

Yes, P&I LOUs are accepted sometimes, but no one can force a claimant to do so. When it comes
to procedure to lift the arrest before the judge, the LOU can only prevail when claimants agree
to accept it.

The procedure to get a Court order can take two to three days. But once there is an agreement
between parties, the release is effective the same day.

Yes. Such a procedure exists under Senegalese law.
271
Once the vessel is arrested, the claimant must take legal action on the merits within one (1)
month.

Senegal recognizes wrongful arrest if evidence show that an arrest is abusive and the claimant
can be condemned to pay damages. However, this situation is rare because when the Judge
considers that the claim is not justified, he rejects the motion for the arrest.
The answer is yes.
It is not possible to sell a ship pendente lite.
A ship can be sold by Court decision to do so and supposes that the debtor has kept low profile
during the procedure.
272
SHIP ARREST IN SERBIA
By Milošević Radomir*
Law Office Milošević
r.milosevic@lawmilos.rs
lawoffice@lawmilos.rs
Prote Mateje 24, 11000 Belgrade
Republic of Serbia
Tel: +381 11 3441161
Fax: + 381 11 3448548

Overview is contained in answers given hereinbelow.
International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-
Going Ships 1952 (Brussels Convention) is applicable in Serbia and consequently the Marine
and Inland Navigation Act (MINA, 1998) is mostly set out in line with the said Convention.
Serbia has made reservation to apply domestic rules for disputes as to the title to or owner-
ship of any ship (Article1, paragraph (1)(o)). Sea-going ship is defined as a vessel intended
for sea-going navigation, exceeding 12 meters in length and with GT greater than15, or
authorized to carry more than 12 passengers.
The ship may be arrested only under the authority of the court for claim with the purpose
of security of the claim but other Authority can order detention of the ship such as Harbor
Master Office exercising Port State Control. The Customs Office authorities and the Criminal
Court may order temporary detention of a ship for the purpose of their proceedings and
under restricted terms provided in other laws or other international conventions applicable.
It is not the arrest in the sense of the Brussels Convention and MINA.
The prohibition of alienation and disposal as a specific measure or alternative to ship’s arrest
exists in Serbian law as a security measure related to claim with the court order to make such
entry in the Ship Register in Serbia. Hence, possible alienation of the ship by the Defendant
against such prohibition has no legal effect whatsoever.
Claims as provided by Article 1 of the Brussels Convention1952 but when Convention is
not applicable for all other claims notwithstanding to the nature if there is no reciprocity
between Serbia and the state of the flag. Because of the urgent nature of the ship arrest
procedure, examination of the existence of reciprocity by Serbian Court is rarely done, and
as a consequence thereof the court usually allows arrest for such ship practically for any type
of claim.
Yes.
Yes.
The concept of sister-ship arrest applies in Serbia in the spirit of the Brussels Convention and
the same is provided for in MINA, 1998 that the applicant may arrest any ship owned by the
person against whom the claim is directed but no other ship than the particular ship
273
in respect of which the claim arose may be arrested in relation to the claim regarding the
ownership, mortgage, hypothecs or other like charges attached to a ship.
There is no restriction to arrest the vessel as regards Bareboat and Time-Chartered vessel. In
this regard MINA, 1998 does not depart from the Convention.
There is a certain ambiguity in regard to Time-Chartered vessel for the bunker supplied to
the chartered vessel not paid by the charterer to the supplier. There is no sufficient case law
established so far in Serbia to give judge guidelines and the court could be strayed and led
to the conclusion that such claim is against the owner of the vessel.
This matter is not regulated by MINA, 1998 but such possibility does exist in other laws and
in our experience the Court has never required a counter-security as a precondition for ship’s
interest in order to arrest a ship or for maintenance of already ordered arrest. Further, the
claimant would have to prove in any case the existence of the claim.
No, there is no difference from the procedural point of view.
Serbia has ratified International Convention on Maritime Liens and Mortgages of 06 May
1993 relating to maritime liens.
to your law firm?
That depends on the contents of the file and supporting documents all of which must be
officially translated.
If the claimants have traced the vessel movement and prepared the documents as instructed
before vessel’s arrival in Serbian territorial waters, at least two days is required to sort docu-
mentation and prepare the application, but the official translation of the relevant documents
may turn to be time consuming. However, the applicant must put forward a claim meeting
the standard of lower level of proof of its existence and be well-grounded (fumus boni juris)
and that should be observed as the best guidelines in preparing supporting documentation.
Yes. No special form is required to grant a POA to our law firm which authorizes our Law Offi-
ce to handle the case. The POA is required to be signed by a duly authorized company officer.
Apart from POA all documents and evidence supporting the claim against the debtor are
also required by the Court including agreements, vouchers, invoices and survey or inspec-
tion report by a surveyor or inspector in relation to the damage, and nature of the claim, etc.
If the arrest is based on a mortgage, the mortgage document and the appropriate petition
for foreclosure, it is prudent to provide the latest excerpt from the Ship’s Register.
Application for arrest must be in original/hard copy because electronic filings with the Court
are not possible for the time being. It is recommended that the original of POA be submitted
and while pending receipt of the original the POA may be transmitted by facsimile or scan-
ned POA via e-mail will suffice to lodge application for arrest.
No other documents are required in original but the court may order presentation of origi-
nal if in doubt or on explicit demand of the debtor.
That is subject to the nature of the claim and some other factors, but the court shall have
jurisdiction to determine the case upon its merits in any of the cases specified in detail in the
Brussels Convention,1952, under Article 7, paragraph(1).
274
It is very simple and expeditious procedure. The shipowner may deposit the amount of mo-
ney or other valuables with the court as ordered by the court in which case the vessel will
be set free by the judge without application of the parties in dispute by issuing release order
for the ship. The release order can be served to the master through Harbor Master Office to
whom the power is presented to act for and on behalf of the court and the release order
may be sent by facsimile transmission in order to speed up the release of the vessel.
There is a peculiarity in Serbian law in regard of security needed for the release. The court
may order the deposit only in the amount for which the applicant had made probable the
main claim and according to the standard of lower level of proof of claim but without costs
and interest thereon, which is very difficult to assess in the early stage of proceedings. That
means the court shall not determine the nature and amount of other security met in practice
in other jurisdictions but this peculiarity can be easily overcome in practice with one advan-
tage that the claimant cannot be exposed to the risk to be sued for excessive security sought
and its consequences.
It is worthwhile to note that deposit with the court as ordered by the court pursuant to
provision provided in MINA, 1998 is without doubt a top quality security, but may turn out
to be a heavy burden for the owner and is rarely done in practice which is reflected in the
practice of Serbian Courts.
The court shall play an active role and determine the nature and amount of the claim only
in case regarding the default in discharging the agreement between the Parties when the
ship has been arrested in respect of any claim enumerated in Article 1(1)(o) and (p) allowing
vessel to continue trading.
Restriction imposed on the court as described under point 18. above cannot prevent the
applicant and shipowner to negotiate the acceptability or otherwise of any form of guaran-
tee less burdensome for the debtor and if they reach an agreement the applicant must notify
the judge in writing and request the judge to release the ship from arrest and that shall be
accepted by the judge and considered as good security. Naturally, such security if offered
and accepted shall cover the amount of claim plus interest and costs.
When the interest of Serbian persons is involved they will usually accept foreign bank gua-
rantees for the amount of claim plus cost and interest as agreed between the Parties if confir-
med by Serbian bank because if not confirmed by the Serbian bank, may cause difficulties in
enforcement as the Serbian court has no jurisdiction over the foreign bank, and recognition
of a Serbian judgment may have to be obtained.
The court cannot force the applicant to accept P&I Letter of undertaking or Letter of guaran-
tee or in combination with P&I Club’s bank but irrespective of that we have always instructed
our clients without exerting pressure to consider acceptability of first class P&I Clubs of the
Group who have always honored their obligation and their Letter of undertaking, which
is the advantage in most circumstances to release the vessel or preventing arrest and in its
wording total liability is composed of such sum or sums as may be adjudged, inclusive of
interest and costs.
Local insurance companies are not prone to issue back to back guarantee when a P&I gua-
rantee had been issued by foreign P&I Club and another disadvantage is that P&I Club
cannot post security for an un-insured claim.
The ship can be released from the arrest by order of the same judge that granted the arrest
upon the occurrence of one of the causes that permit an discharge of an arrest order under
Serbian law described hereinabove, and the release time usually takes no more than few
hours on the same date of application for release subject to official hours of the Court.
Yes. The time for appealing an order for arrest to the Court of Appeal is 8 days from its no-
tification to her master, who is considered to be the legal representative of the shipowner.
275
After the arrest the claimant must start proceeding on the merits within 15 days if the Ser-
bian Court has jurisdiction for hearing the entire action on the merits, but if the parties have
agreed to submit the dispute to the jurisdiction of particular Court or Arbitration tribunal
other than that within whose jurisdiction the arrest was made the single judge in his discre-
tion may grant a period of 30 up to 60 days to the claimant to start proceeding thereafter
and if the action or proceedings are not brought within the time so fixed the defendant may
apply for the release of the ship or of the bail or other security provided.
Yes, although that matter is not regulated with MINA, 1998. The claim for indemnity can be
instituted pursuant to The Law on Obligations and Torts against the applicant inflicting loss
who wrongfully arrested the ship. The claim for indemnity should be placed in the separate
proceeding. There is not sufficient case law so far whether the complaint for damages for
wrongful arrest can be placed in the same arrest proceeding as known in other jurisdictions.
25. Do the Courts of your country acknowledge the piercing and lifting of the corporate vail?
The Court will not acknowledge the piercing and lifting of the corporate veil. Such institute
does exist in corporate law but is not applicable for maritime claims because pursuant to
the provision of MINA, 1998 the court will acknowledge the Owner/Operator/Charterer/
Manager as the key person who is liable for obligation arising from navigation and use of
the vessel for intended purpose.
This matter is not regulated by MINA, 1998 pursuant to which the compulsory sale of the
vessel must be performed at public auction in rather lengthy court proceeding which must
be properly advertised inviting all known creditors. Therefore the Security and Forced Exe-
cution Act being a subsidiary source of law which provides pendente lite sale of other assets
in certain circumstances is not applicable in the case of arrested ship or seized in execution
or satisfaction of the judgment.
*Attorney Radomir Milošević graduated magna cum laude from Belgrade University School of Law in 1977. He took his Master’s
degree from Belgrade University School of law in 1983. (Master thesis: Carriage of passengers by ship) and in 2012 earned his PhD
degree (PhD thesis: Shipbuilding contracts).
Mr. Milosevic spent a year practicing at Ingledew Botterell law firm, The North of England P&I club in England and Lloyd’s insurance
Market in 1989, specialization in international maritime law. He started his law practice in 1978 and has worked as an in-house attorney
for several Belgrade-based shipping companies prior to launching his career as a practicing lawyer in 1991.
He is managing partner at Law Office Milosevic. As a lawyer he has concentrated on international commercial matters, including
shipping and insurance law, both Serbian and international.
276
SHIP ARREST IN SINGAPORE
By Dato Jude P Benny, Senior Partner*
JOSEPH TAN JUDE BENNY LLP
judebenny@jtjb.com
www.jtjb.com
6 Shenton Way, #23-08, OUE Downtown 2
068809 SINGAPORE
Tel: 65-62209388
Fax: 65-62257827

Ship arrests are frequently carried out in Singapore due to various factors, including Singapore’s
being one of the world’s busiest ports, being a key bunkering port, and having an efficient
Court system with specialist Admiralty judges to promptly handle arrest matters and the adjudi-
cation of the substantive disputes.
As a key maritime port, Singapore has a few specialised maritime law firms, including JTJB, that
handle arrest cases on a regular basis, and that are therefore very familiar with the processes,
as well as the procedural laws and requirements. Recent developments in Admiralty law in the
past few years have imposed greater obligations of disclosure on the part of the arresting party
in the application for a warrant of arrest, however that has not significantly dampened the rate
of arrest, given the popularity of Singapore as a key port of call for many vessels.

Singapore is a signatory to the Convention on Limitation of Liability for Maritime Claims, 1976,
which has been given effect and incorporated into Singapore’s Merchant Shipping Act.

No.

It may be possible to seek to detain a vessel as part of a Mareva Injunction taken out against the
shipowners, but practically it may be costly, may impose more difficult threshold hurdles and be
time consuming. It is therefore not attempted.

Section 3 of the High Court (Admiralty Jurisdiction) Act [HC(AJ)A] sets out a closed list of claims
for which the Court may exercise its Admiralty Jurisdiction to arrest a vessel. This list is similar to
section 20(2) of the U.K. Supreme Court Act.

Yes.

Yes.
It is possible to arrest sister ships but not ships in associated ownership.

The HC(AJ)A states that where a claim arises in connection with a ship, a warrant of arrest may
be issued against that ship, if at the time the writ is issued, that ship is bareboat chartered to the
person who would be liable to the Plaintiff for the claim. It is not possible to arrest a vessel that
is under time charter to the person liable for the claim.
277
No. However, the Sheriff is entitled to request that the arresting party place security to cover the
Sheriff’s expenses in maintaining the vessel while under arrest, as the arresting party is obliged
to maintain the vessel during the period of arrest. This can be requested at the outset of the
arrest, and from time to time, when the Sheriff deems necessary. If funds are not provided to
maintain the vessel, the Court may release the vessel from arrest.
Yes, maritime claims are divided into maritime liens and statutory claims (non maritime lien
claims listed in the HC(AJ)A). Maritime liens will survive a change of ownership such that it is still
possible to arrest for claims incurred by the ex-owners, notwithstanding a change of ownership.
For statutory claims, the right of arrest will be extinguished if ownership of the vessel changes
before a writ is issued for the claim. It is possible, but difficult, to challenge the change of owner-
ship, on the basis that it is a sham transaction designed to avoid liability.
Yes, in respect of claims for salvage; crew wages; damage done by a vessel; Master’s wages and
disbursements; and bottomry and respondentia. This is recognised as a matter of common law,
and not by Convention or statute.
your law firm?
Due to the strict requirements of disclosure of all relevant documents and information that may
have an impact on the Court’s decision to grant a warrant of arrest, we will usually request for
at least 48 hours to review the supporting documents and correspondence, more if the matter
appears complicated and/or if the documents are voluminous. However, once the documents
are prepared and ready for an arrest, the Court hearing for the issuance of the warrant of arrest
can be very quickly arranged within a few hours, and once the warrant of arrest is issued, a
vessel can be arrested within a matter of a few hours, depending on the location of the vessel.
A POA is not required for the arrest. It is necessary for the arresting party to file a writ that brie-
fly describes the claim, and to prepare an affidavit which is in support of the application for a
warrant of arrest for the vessel.
Original documents are usually not required to effect an arrest, though the Plaintiff must re-
tain the originals of the documents, and to make these available for inspection, if and when
necessary / ordered by the Court. Copies of all relevant documents must be exhibited in the
supporting affidavit, including those that may be detrimental to the claim. All Court documents
for the arrest are filed electronically to the Court’s system. Only the affidavit in support needs
to be signed before a Commissioner of Oaths (if in Singapore), or a Notary Public (if affidavit is
executed overseas).
The Court generally assumes jurisdiction over the substantive claim, following an arrest. Howe-
ver, it is possible to arrest to obtain security for a foreign arbitration proceedings (ongoing or
anticipated), and it is the obligation of the arresting party to indicate that fact in the supporting
affidavit, as otherwise there might be complications when applying for a stay of proceedings.
Following provision of adequate security, the vessel can be released, and the action stayed in
favour of the foreign arbitration.

An application will have to be put into court for the release of the ship, and certain documents
(as set out in Order 70 of the Singapore Rules of Court) will have to be filed. The arresting
Plaintiff’s counsel will also have to attend in court to have the application heard. Once the court
approves the release, notification of the release and copies of the release papers may be given
to the ship’s agents and/or counsel for the arrested party. There is no need to serve the release
papers on the vessel.
278
Usually, a first class guarantee from a Singapore bank, a bail bond, payment into court, or a let-
ter of undertaking from a reputable and internationally recognised P&I club / H&M underwriter
will be sufficient.

It can, even though it does not have to. Security is usually sought for the arresting Plaintiff’s
reasonably arguable best case, together with interest and costs.

Yes if the P&I club is a reputable and internationally recognised one.

Assuming there are no complications, this may be done within a day.

Yes. A Defendant who wishes to challenge the arrest may enter appearance and put in an appli-
cation to court to set aside the writ and/or service of the writ.
As stated above, a writ is filed at the time the application is made for the warrant of arrest. The
writ has to be served on board the vessel, together with the warrant of arrest. Upon the issuan-
ce of the writ, the Singapore proceedings are deemed to have commenced, and the procedural
timelines for the progress of the substantive claim will start to run once service of the writ is
effected.

Yes. However, in order to be entitled to damages for wrongful arrest, the Defendant will have
to show that the arrest was carried out in bad faith or with gross negligence.
While the Courts have allowed the piercing/lifting of the corporate veil, it is a power done only
in exceptional cases, as the Courts do generally give effect and recognise the principle of sepa-
rate legal entities, with each company having its own legal rights and liabilities. One exception,
as mentioned above, is where the vessel is sold to a separate legal entity for the purposes of
evading the claim.
It is possible to do so. The application for sale of the vessel can be done fairly quickly once the
arresting party can show that the vessel has been arrested for some time but no security is for-
thcoming, and in the meantime the vessel is a wasting asset and continues to incur costs. After
the order has been granted for the vessel to be sold pendent lite, the question as to how long
it will take it actually sell the vessel will depend on the commercial circumstances, i.e. the prevai-
ling market conditions and demand for that type of vessel. The vessel will usually be put up for
public auction and the potential purchasers will have to meet the reserve price put up by the
Sheriff. In bad market conditions, it may take several auctions to sell the vessel. It may be possible
to sell the vessel by way of a private treaty if that will result in a better return for the vessel, as
opposed to a public auction. The sale by private treaty will have to be sanctioned by the Court.
*Jude P. Benny is a Senior Partner at Joseph Tan Jude Benny LLP (JTJB). He commenced practice in 1983, after completing his legal
education at Queen Mary College, University of London, and being admitted as a Barrister at Middle Temple. In 1988, he set up the firm
of JTJB. Jude has an extensive maritime practice, in both the wet and dry side, including ship financing and sale and purchase. In addi-
tion, he is an accredited arbitrator with the Singapore International Arbitration Centre (SIAC), Singapore Chamber of Maritime Arbitration
(SCMA), Singapore Trade Development Board (Timber), Korean Commercial Arbitration Board (KCAB), Badan Arbitrase Nasional Indo-
nesia (BANI), Kuala Lumpur Regional Centre for Arbitration (KLRCA). He is the Editor of Halsbury’s Laws of Singapore, Shipping Volumes
and also sits on the Board of the Maritime and Port Authority of Singapore.
279
SHIP ARREST IN SLOVENIA
By Patrick Vlacic*
patrick.vlacic@fpp.uni-lj.si
patrick@lex-move.com
Ulica XXX. divizije 16, 6320,
Portoroz – Portorose, Slovenia
Tel: +38641718474

There is exclusive jurisdiction of the District Court of Koper for all maritime cases. The eventual ap-
peal should be field before the Court of Appeal of Koper. Under certain circumstances it is possible
to file extraordinary appeal before the Supreme Court of the Republic of Slovenia.
It is essential for both parties to retain local lawyers as all the documents must be filed in Slovenian
and the proceedings before the court are in Slovenian. The POA could be a fax or scanned docu-
ment but during the procedure (before the court decision) the original has to be presented. For the
defendant attorney the vessel’s master signature of POA would suffice.
Article 8 of Constitution of the Republic of Slovenia provides: Laws and regulations must comply
with generally accepted principles of international law and with treaties that are binding on Slove-
nia. Ratified and published treaties shall be applied directly.
There are two situations for the non-contracting states of International Convention for the Unifica-
tion of Certain Rules Relating to the Arrest of Seagoing Ships, 1952 (the 1952 arrest convention).
The first situation would be when there is reciprocity between the state whose flag the ship flies
that could potentially be arrested in Slovenia. If a vessel flying a Slovenian flag could be arrested in
that state only as a security for maritime claims also a ship flying the flag of that state could be arres-
ted in Slovenia only for maritime claims as provided in Maritime Code 2001. The second situation is
when there is no reciprocity. In that case the ship could be arrested in Slovenia for any kind of claim.
In order to achieve the arrest of ship the claimant should submit the following documents:
-An application (usually filed by a local attorney) and POA,
-A description of the claim, the amount and eventual claim for interest and costs,
-Documents that support the claim (translation in Slovenian by sworn in translators).
Usually the court would issue the arrest order without hearing. In some cases a hearing could be
possible (e.g. oral evidence is needed).

Slovenia is a party of the 1952 arrest convention since 1967 (at the time still as a part of ex Yugo-
slavia) and has adopted the 1952 arrest convention also after 1991 as a sovereign state, on 13
October 1993.

In cases when the 1952 arrest convention is not applicable the Maritime Code 2001 would apply. In
these cases Maritime Code 2001 is a lex specialis governing the type of claims, other maritime mat-
ters and procedure whereas the Enforcement and Security Act 1998 applies in all civil proceedings
and is lex generalis for enforcement in Slovenia.

In certain circumstances (see the answer to question 1) there are some alternatives for arrest of ship
through temporary injunctions under Enforcement and Security Act 1998.

For the parties (i.e. ships flying a flag of contracting state) of the 1952 arrest convention the types
of claims are the ones from the original text - exclusively maritime claims listed in article 1 of the
1952 arrest convention. For non-contracting states of the 1952 arrest convention the list of claims
from Maritime Code 2001 applies. Clams in Maritime Code 2001 are broader than the ones listed
280
in article 1 of the 1952 arrest convention and are almost identical to the claims of International
Convention on Arrest of Ships, 1999 (the 1999 arrest convention).

Yes, taking into account the differences mentioned above.

The Article 948 of the Maritime Code 2001 provides:
Any ship may be arrested which is owned by the same personal debtors, or which is for the claim
for which arrest is sought, encumbered by maritime lien of hypothec for another right of pledge ba-
sed on the foreign law, and or another claims listed in Maritime Code 2001, which relate to the ship.
If the debtor is the bareboat or demise charterer of the ship or a charterer, who according to the
law applicable to the contractual relation between him and the shipowner or ship operator is alo-
ne liable to the third persons - this ship may be arrested or any other ship which is owned by the
debtor.
The provisions of the previous paragraph shall also apply in all other cases where an operator or
employer who is a personal debtor, and who is not the owner of the ship is himself liable for the
claims for which the arrest of the ship is sought.
In respect of a claim that relates to the ownership, co-ownership or a hypothec on the ship, only the
ship to which this claim relates may be arrested.
Slovenian law does not allow “actio in rem” therefore the personal liability is relevant.
The claimant must prove that at the time of arrest the sister ship(s) are in the ownership of the
debtor.

The ship can be arrested for claims against the Bareboat and Time-Chartered vessels.

Usually not but it might happen that the court demands the necessary funds for maintenance of
the ship and of the crew and necessary funds for the watching of the ship. This happens when a
ship owner or a carrier fails to perform his obligation to maintain the ship and the crew.
There is no difference.
Yes, it does recognize the maritime liens. The provisions governing the maritime liens are in Ma-
ritime Code 2001 and are more or less the same as the one in International Convention for the
Unification of Certain Rules Relating to Maritime Liens and Mortgages. Slovenia is not party of any
international convention governing maritime liens, though.
law firm?
The arrest of ship would be usually obtained the same day when it is applied or the following day.
The original POA is required but in the first phase the copy (e.g. fax or scan of original POA) would
suffice.
The proof of the claim is required (probability of existence of claim) and the claimant has also proof
the danger that without the arrest there is a risk that the debtor will alienate the ship, conceal, take
away the ship or in any other way prevent or make difficult enforcement of the claim.
Copies of documents suffice at the stage of petition for arrest. Sworn translators should translate
the documents that are not in the Slovenian language.
281
the documents that are not in the Slovenian language.
The court in Slovenia will grant an arrest even if the contract contains a jurisdiction or arbitration
clause. Anyway, any arrest has to be justified by commencement of proceedings of the merits. If the
parties do not agree on the jurisdiction or arbitration clause the court will in most cases also decide
the case on the merits.

There is no special procedure. When debtor presents an adequate security the temporary in-
junction is removed and the arrested ship is immediately released.

Debtor has to provide an adequate security. If there is agreement between creditor and debtor on
type of security the court will accept it. Usually if debtor would present the bank guaranty of reputa-
ble bank the court of law would accept it as suitable security. There is on going debate on this topic.

Yes.

Yes, if debtor and creditor agree with that kind of security.

The proceedings are fast as the decision is issued within duty judge of the court of law that has
exclusive jurisdiction in maritime cases.

Debtor has a right to file objection against the temporary injunction by which a ship is arrested.
Once the court receives the debtor’s objection against the decision of arrest it shall without delay
convene a hearing. At this hearing the court weigh the facts and evidence upon which the tempo-
rary injunction for arrest was issued.
on the merits?
The claimant has to start the legal action on the merits within 15 days.

Courts in Slovenia do acknowledge a wrongful arrest. The claimant is liable to pay damages to the
debtor if the arrest subsequently turns out as not justified. There is no need for “mala fide” in order
to prove a wrongful arrest. Damages are assessed in special proceedings on classic civil law ground
(e.g. ordinary damages and loss of profit).
There are provisions regarding the piercing and lifting of the corporate veil but in practice there
have not been decisions like that in past in connection to arrest of ship.
It is possible but in practice it does not happen. Procedures for a sale of ship are anyway quite long.
*Patrick Vlacic got his bachelorship from Faculty of Law in University of Ljubljana, Slovenia, masters from Faculty of Law in University of
Split, Croatia and Ph. D. form Faculty of Law in University of Ljubljana, Slovenia. Worked for two years as judicial trainee (1995¬1997)
and passed bar exam (1998). From 1998 to present time he was lecturing Maritime Law, Transport Law, Commercial Law, Civil Law and
Air Law at University of Ljubljana, Faculty for Maritime Studies and Transport and Faculty of Mechanical Engineering. In between he was
CEO of Airport of Portoroz (2002-2004) and Minister of Transport of Republic of Slovenia (2008-2012). At present time besides lecturing
also practicing law.
282
SHIP ARREST IN SOUTH AFRICA
By Shane Dwyer*
SHEPSTONE & WYLIE
dwyer@wylie.co.za
www.wylie.co.za
Durban Office, PO Box 305
La Lucia 4153, South Africa
Tel: +27 31 575 7000
Fax: +27 31 575 7300

There are essentially three ways in which one can arrest or attach a ship in South Africa:
(i) An arrest in rem-
A maritime claim may be enforced by an action in rem:
- if the claimant has a maritime lien over the property to be arrested; or
- if the owner of the property to be arrested would be liable to the claimant in an action in per-
sonam – where he/she would be personally liable in a direct action against them.
(ii) An arrest in personam
A maritime claim may be enforced by an action in personam when the Defendant is a:
- person resident or carrying on business at any place in South Africa;
- person whose property within the Court’s area of Jurisdiction has been attached by the clai-
mant to found or confirm jurisdiction;
- person who has consented or submitted to the jurisdiction of the Court;
- company, if the company has a registered office in South Africa.
Note that it is only where the defendant is a foreigner and therefore it is necessary to found ju-
risdiction that their property has to be attached to establish that jurisdiction. An “attachment” is
the term used for this proceeding, borrowed from Roman Dutch law, as distinct from an “arrest”
which is the procedure to commence an action in rem, based on the English in rem Admiralty
procedure.
(iii) A security arrest; A court may order the arrest of any property for the purpose of providing
security for a claim which is or may be the subject of arbitration or any proceedings contempla-
ted, pending or proceeding, either in the Republic of South Africa or elsewhere, and whether
or not it is subject to the law of South Africa.
The Court will have jurisdiction over all matters pertaining to the arrest itself and any security
furnished in relation thereto. The claimant, however, does not submit to South African jurisdic-
tion for the merits of the claim in respect of which security is sought.

South Africa has not acceded to any International Convention related to the arrest of ships. The
law and practice in respect of the arrest of ships in South Africa is regulated by the Admiralty
Jurisdiction Regulation Act of 1983 as amended with effect from 1 July 1992 (“the Act”). In the
drafting of the Act, certain aspects of the Arrest Convention 1953 were taken into account and
incorporated into the legislation, such as the provision for the arrest of “associated ships”, which
is a wider concept than “sister ships”. The Act provides the formula to determine what law
applies to the substantive merits of a maritime claim, but the arrest procedures are determined
by the provisions of the Act itself.

Apart from the procedure to “attach” a ship in personam there is no other procedure to detain
a ship for a maritime claim. The Act is specific in its requirements for the arrest or attachment of
a ship, where the claim is a maritime claim as defined in Section 1 of the Act. If the claim is not
a maritime claim as defined and the claimant has a claim enforceable in personam against its
owner, then subject to certain restrictions such as that the claimant must be domiciled locally
and the defendant must be a foreigner, the ship could be attached by order of the High Court
283
in exercise of its parochial (non-admiralty) jurisdiction to found jurisdiction to sue in common
(Roman Dutch) law.

See above. They might have certain similarities, but they are not identical.
The definition of a maritime claim in the Act effectively covers all causes of action in relation to
ships, the carriage of cargo and matters maritime. The definitions are also wide enough to cover
matters which are ancillary to “shipping” matters. A comprehensive list of maritime claims can
be found in Section 1 of the Act.

Yes, a vessel can be arrested within our jurisdiction irrespective of the flag she is sailing under.

No - the claim must be enforceable in personam against the owner or demise charterer (who
is deemed to be the owner for this purpose). However a vessel can also be arrested on an as-
sociated ship basis, meaning that where the maritime claim arises in respect of one ship, it is
possible to bring an action in rem, or a security arrest, by arresting an “associated ship” instead
of the ship in respect of which the maritime claim arose. The ship will be an “associated” one,
effectively where the respective companies which own the “guilty” ship and the “associated”
ship, are controlled directly or indirectly by the same person or persons.
A sister ship as well as an associated ship can be arrested (in fact the former falls within the defi-
nition of the latter) for liabilities of the owner or bareboat charterer of what is termed the “ship
concerned” or “guilty ship”. An associated ship is one (in simple terms) which is owned by a
company which is controlled directly or indirectly by the same person who controlled the com-
pany which owned the “guilty ship” (the ship concerned) at the time the cause of action arose.

Bareboat charterers (or “demise charterers”) are deemed to have been and to be, the owner of
a vessel for purposes of an arrest in rem. As such, if the liability sought to be enforced, is that of
the bareboat charterer, the ship can be arrested in rem for the liabilities of the bareboat char-
terer. The same does not however apply to a time chartered vessel. Nevertheless, for purposes
of an associated ship arrest, the charterer (whether bareboat, time or voyage) is deemed to
have been the owner of the ship concerned (the “guilty ship”) for purposes of the arrest of an
associated ship (i.e. one owned by a company which is controlled by a person who controlled
the company which was the charterer and therefore the deemed owner of the guilty ship, at
the time the cause of action arose)

No, South African courts do not require counter-security as a pre-condition for ordering the
arrest of a ship. However, the owner of the ship arrested can seek an order for counter security
to be put up, if they can make out a case that the arrest has prima facie been obtained without
reasonable and probable cause, or the security demanded to obtain its release, is excessive.
Yes. The concept of a maritime lien is different to a maritime claim. A ship can always be arres-
ted in rem for the claims recognised by South African law as maritime liens (but not for claims
giving rise to a maritime lien in a foreign jurisdiction), even if the ship has been sold. It is a claim
which properly lies in rem against the ship, notwithstanding in personam liability of its owner.
In addition a vessel can be arrested for enforcement of a maritime claim, as defined in the Act,
even if not a maritime lien, where the owner is liable in personam.
Yes, but only those restricted maritime liens recognised in terms of our common law as being
so classified, which are in effect those claims recognised by English law. These are those that
were recognised by the Colonial Courts of Admiralty in 1890, i.e. claims for bottomry, salvage,
seamen’s wages, master’s wages, disbursements and liabilities, and any claims for damage cau
284
sed by a vessel. No International Convention applies and no claim classified as a maritime lien
by a foreign law, will be enforced as such.
your law firm?
In the case of an in rem arrest, an arrest can generally be effected as soon as the papers are dra-
fted and issued at Court. This can be achieved within a few hours after instructions are received.
In the case of a security arrest however, an Affidavit is required to be deposed to and as soon
as a Judge is available to hear the application, an order can be granted and the arrest effected.
Although a more substantive application therefore, a security arrest can still be effected within
a few hours of the receipt of the instruction, subject to the availability of a Judge to hear the
matter, but this should be capable of being arranged the same day, including over weekends
and after hours.
No power of attorney has to be filed at the time of seeking an arrest order. All that is needed
initially in order to place a vessel under arrest is ¬-
(i) the issuing and service of a Summons that includes a statement of the facts upon which the
claim is based, as well as the issuing and service of a Warrant of Arrest; and
(ii) a Certificate in terms of Rule 4(3) of the Act, deposed to by the attorney representing the
claimant, or by the claimant itself, in support of the Summons and the Warrant, which sets out
the necessary averments as required by the Act and confirms the accuracy thereof.
If a security arrest is sought however, an affidavit must be filed and this must have the relevant
documents in support of the cause of action (if any) attached to it. The owner of the ship can
after the arrest is granted, challenge the authority of the attorney who obtained the arrest, in
which case a power of attorney must be filed.
For an arrest no original or notarised or authenticated documents are required. It is permissible
to file electronically transmitted documents, whether faxed or scanned and emailed. If however
a matter proceeds to trial and documents are required to be submitted in proof of the claim, it
may be necessary to produce the original document or a copy thereof, which would then have
to be authenticated by notarisation and apostille.
If an action is commenced before this court in rem or following an attachment to found juris-
diction, in personam then it is the court seized of the matter notwithstanding where the cause
of action arose, or where the claimant or the defendant are domiciled and the court will as a
matter of domestic law have inherent and statutory jurisdiction. The defendant can however
seek an order that the court thereafter decline to continue to exercise jurisdiction, or stay the
action on the merits, on the basis of forum non conveniens where e.g. there is a choice of forum
clause in a contract or where it is more appropriate that the matter be heard in the jurisdiction
where e.g. a collision occurred. The test of when the court should consider deferring jurisdiction
in favour of another court or forum, is determined by the common law of South Africa, which
however follows the test applied by the English courts.

Once a ship has been arrested by service through the Court Sheriff of an arrest order or warrant,
served on the ship and the harbour master, it can only be released again by service by the She-
riff of a warrant of release issued by the High Court (Admiralty) Registrar, again service being
effected on the ship and the harbour master.
The party who arrested the ship must apply to the Registrar for the issue of the warrant of relea-
se, either because the claim has been settled, or because security for payment of the claim has
been provided, or because the claimant abandons the arrest for any reason.
If the arrest is challenged and the Court upholds the challenge and sets aside the arrest, the re-
lease will be ordered by the court and that order will be served on the ship and harbour master.
If agreement on the form of security or the amount thereof cannot be agreed by negotiation
between the parties, then again application can be made to the Registrar or the Court for a
ruling on what amount or form would be acceptable and if it is provided in that amount and
285
form, either to the claimants lawyers or to the Registrar, the Registrar will issue a release warrant
without the arresting party’s express agreement.

Security has to be provided by cash paid into court (which is unusual), a Bank Guarantee from
a South African bank, an Insurance Company or an acceptable P&I Club, Letter of Undertaking.
In the case of an arrest in rem, the amount is either for the amount of the claim plus interest and
costs, or for the value of the ship or other asset arrested, whichever is the lesser.
With an attachment to found jurisdiction in personam however, the full value of the claim has
to be secured, whatever the value of the asset attached.

Yes. For purposes of calculating the amount to be secured in respect of the interest portion,
apart from interest already accrued, customarily interest for three or four further years is calcula-
ted and provided for, on the basis that this is how long it could take for the action on the merits
to be disposed of, if the action is being pursued here. The amount to be allowed for possible
costs is a matter for negotiation, or the Registrar can be requested to set a figure.

Yes, if the P&I Club providing the LOU is a member of the International Group. For non-IG Club’s
or insurers, it is a matter for negotiation, or an application to court could be required, with the
Club or other P&I insurer’s financial statements being required to be disclosed to persuade the
Court that they will be able to pay any judgment rendered in due course.

If the ship is in port and security is provided in normal working hours when the Court Registrar’s
office is open to arrange the issue of the Release Warrant, the release can be effected within an
hour or two.
Over weekends, or after normal office hours, it can take longer and if the Sheriff has to then
proceed off shore to the anchorage by launch to serve the Release Warrant on the ship, that will
obviously delay matters still further.

Yes. Generally the ship owner who wishes to contest the right of the claimant to have arrested
the ship on some technical basis (such as that the cited defendant does not own the ship, or
that the ship is not an “associated ship” as defined in the Act) will have to make application to
court to set aside the arrest, filing affidavits to support the argument that the ship should not be
susceptible to the arrest.
The court will however not entertain such an application to set aside simply because the owner
disputes that the underlying debt is due on the merits and as long as a prima facie case was
made out for the claim at the stage of arrest, the owner needs to provide security to release the
ship and then defend the merits of the substantive action (or arbitration).
The arrest procedure in rem is itself the commencement of the substantive proceedings on
the merits and is not merely a conservatory procedure, as a summons is served simultaneously
with the warrant of arrest which has to be answered with a defence on the merits. With an
attachment to found jurisdiction in personam the court will normally authorize and direct that
particulars of claim be served within one month of the attachment.

Yes. It is however termed an arrest “without reasonable and probable cause”, which is a na-
rrower concept to one of “wrongful arrest”.
Yes, but strictly speaking only when circumstances of fraud have been proven. The associated
ship arrest provisions also allow a measure of piercing the corporate veil, but only where the
strict issues of common control of owning companies is proven.
286
Yes. From the time of the order the ship can be sold within 6 weeks but the time period can be
longer if the owner or another creditor opposes the sale or the terms for sale stipulated by the
Court.
*Born 5th April 1946, Shane Dwyer served with the South African Navy before attending Stellenbosch University and obtaining the BA &
LL.B degrees. After serving as a State Prosecutor, he joined Shepstone & Wylie in 1972 and became a partner in 1975. Shepstone & Wylie,
although a general service law firm, have been the legal representative of most International Group P&I Clubs for many years. The firm
now has some 75 lawyers, with specialist maritime offices in Durban, Cape Town, Richards Bay and Johannesburg.
He has specialized in Maritime Law since he joined the firm and has been involved in most, if not all, of the many major shipping casualties
along the Southern African coast in the last 40 years. He is recognized as one of the leading international transport lawyers in South Africa
and has been published widely on both maritime and air law in numerous international publications.
287
SHIP ARREST IN SPAIN
By Dr. Felipe Arizon*
ARIZON ABOGADOS SLP
felipearizon@arizon.es
www.arizon.es
Paseo de Reding 43, groundfloor
29016, Malaga, Spain
Tel: +34 952 211774
Fax: +34 952 226676

Arresting a ship in Spain is a good tool to enforce claims against ship owners and other operators.
The recent implementation of specialized mercantile Courts in Spain has improved the swiftness
of the procedure and reaction of the Court where an arrest application is presented. Likewise, the
perception of a ship arrest as a tool to obtain security rather than as a way to proceed to the ship’s
auction has increased. A ship arrest can be carried out in 3 or 4 hours from the client’s first call. A
power of attorney is required in order to aver the representation of the plaintiff. A lawyer and a
bailiff need to be employed before the Court. Registration of a lawyer before any Spanish province
entitles him to act before all Spanish ports for a ship arrest, including the Canaries and Balearics
islands, Ceuta and Melilla. After the entry into force of the 2014 Navigation Act, the application of
the arrest can be presented before the ship arrives to the port. Moreover, ships can be arrested un-
der the 1999 Convention up to the date a judgment or an arbitration award is issued or obtained.

On the 25 of September 2014 a new Navigation Act has entered in force into Spain, changing
some aspects of the law related to arrest of ships. Nevertheless the 1999 Geneva Arrest Convention
remains the main law that applies when arresting a ship in Spain.

Ships flying a 1999 Arrest Convention State flag can be arrested in Spain for the claims listed in
the 1999 Arrest Convention only. Ships flying the Spanish flag can be arrested for any other claim
in addition to those set out within Art. 1 of the 1999 Arrest Convention provided the creditor has
its usual residence in Spain, its principal place of business in Spain, or has obtained the credit via
subrogation, or assignment. Ships not flying a flag of a 1999 Convention signatory State, the great
majority, can be arrested in Spain for maritime claims as well as for any other claims.

No, they are not. In practice the stoppage of a ship can only made by an arrest of the ship. A diffe-
rent scenario may come up where the ship is detained by her involvement in a criminal matter, or
for having breach Administrative Laws.

It depends on the flag of the ship, see response to question number 3 above.
Under the 1999 Brussels Convention you may arrest a ship for the following claims:
1. “Maritime Claim” means a claim arising out of one or more of the following:
(a) loss or damage caused by the operation of the ship;
(b) loss of life or personal injury occurring, whether on land or on water, in direct connection with
the operation of the ship;
(c) salvage operations or any salvage agreement, including, if applicable, special compensation
to the environment;
(d) damage or threat of damage caused by the ship to the environment, coastline or related inter-
ests; measures taken to prevent, minimize, or remove such damage; compensation for such dama-
ge; costs of reasonable measures of reinstatement of the environment actually undertaken or to be
undertaken; loss incurred or likely to be incurred by third parties in connection with such damage;
and damage, costs, or loss of a similar nature to those identified in this subparagraph (d);
288
(e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering har-
mless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has
been on board such ship, and costs or expenses relating to the preservation of an abandoned ship
and maintenance of its crew;
(f) any agreement relating to the use or hire of the ship, whether contained in a charter party or
otherwise;
(g) any agreement relating to the carriage of goods or passengers on board the ship, whether
(h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;
(i) general average;
(j) towage;
(k) pilotage;
(l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services ren-
dered to the ship for its operation, management, preservation or maintenance;
(m) construction, reconstruction, repair, converting or equipping of the ship;
(n) port, canal, dock, harbour and other waterway dues and charges;
(o) 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, including costs of repatriation and social insurance,
(p) disbursements incurred on behalf of the ship or its owners;
(q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on
behalf of the shipowner or demise charterer;
(r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the
shipowner or demise charterer;
(s) any dispute as to ownership or possession of the ship;
(t) any dispute between co-owners of the ship as to the employment or earnings of the ship;
(u) a mortgage or a “hypothèque” or a charge of the same nature on the ship;
(v) any dispute arising out of a contract for the sale of the ship.

In Spain the 1999 Arrest Convention applies irrespectively of the ship’s flag but the list of claims is
restricted where the ship flies a 1999 Arrest Convention flag. Otherwise the ship can be arrested
for any claim.

Not in all cases, but in some, depends on the facts of the case. This question needs to be paid care-
ful attention. The response is to be positive where the claim is based upon a maritime lien. Equally,
the same result can be reached by application of the new article 149 of the Spanish Navigation
Act which states “Responsibility of the armatour: The armatour is responsible before third parties
for the acts and omissions of the Masters, the crew, and the obligations assumed by the Master in
accordance to Art. 185”.
Moreover, the new article 316 of the Spanish Navigation Act further states: “In its relationships with
third parties the Manager shall manifest his condition as agent, identifying the armatour and his
domicile in the contracts. Should the manager fail to do so, he shall be liable with the armatour of
the obligations assume on behalf of him.”
Where the ship is under a time charter or a voyage charter, or operated under the management
of a third Company the 1999 Geneva Convention establishes the possibility of arresting a ship for
those cases in which a person different to the owners shall respond of the maritime claim, for such
cases see the 1999 Convention text.
Sister ships can be arrested in accordance to the provisions of the 1999 Arrest Convention. For
cases of associated ownership see below “lift of the corporate veil”.

There is no case law setting out the position on these cases. However, as far as bareboat chartered
ships are concerned, the 1999 Arrest Convention sets it clear that the ship can be arrested. Time
and voyage charterers ships can also be arrested if the claim amounts to a maritime lien, or where
the ship owner is legally liable for the claim.
289
Yes, the amount varies according to the criterion of the Judge. A certain practice has been accep-
ted whereby Courts admitted as sufficient counter-security an amount of circa 10% of the claimed
amount. However, the 2014 Spanish Shipping Act sets out that security shall be fixed in a minimum
of 15% of the amount of the alleged maritime claim.
The International Convention on Maritime Liens and Mortgages 1993 that has recently entered
into force in Spain sets out the regime of maritime liens applicable in Spain. Other liens recognized
under Spanish or foreign laws will rank after the list provided by this international Convention.
your law firm?
Provided all the necessary items are fulfilled, namely a copy of the POA is advanced by fax, and
supporting documents are likewise delivered, the arrest can be carried out in less than 3 or 4 hours.
The concrete timing will depend on the reaction of the Court’s officials and Judges towards the writ.
A POA is indeed needed, a faxed copy may suffice, but originals duly legalized shall follow. In
some recent arrest applications some Commercial Court Magistrate are requesting original POAs
to proceed with the arrest. Moreover, while the documents of the claim are not necessary in the
arrest application it is very advisable to provide the Court with some of them enabling the Judge to
foresee a good claim, which also may play a role in the Magistrate agreement to fix a low amount
of countersecurity.
Initially most commercial Courts will accept copies of any documents. The only document which
production is mandatory is the power of attorney. Other documents related to the claim should
be provided to the Court in order to ensure the best understanding of the case by the Magistrate,
which in turn may assist in getting his agreement to a low countersecurity.
Under the 1999 Convention, article 5 sets out the following:
Article 7. Jurisdiction on the merits of the case:
1. The Courts of the State in which an arrest has been effected or security provided to obtain the
release of the ship shall have jurisdiction to determine the case upon its merits, unless the parties
validly agree or have validly agreed to submit the dispute to a Court of another State which accepts
jurisdiction, or to arbitration.
2. Notwithstanding the provisions of paragraph 1 of this article, the Courts of the State in which an
arrest has been effected, or security provided to obtain the release of the ship, may refuse to exer-
cise that jurisdiction where that refusal is permitted by the law of that State and a Court of another
State accepts jurisdiction.
3. In cases where a Court of the State where an arrest has been effected or security provided to
obtain the release of the ship:
(a) does not have jurisdiction to determine the case upon its merits; or
(b) has refused to exercise jurisdiction in accordance with the provisions of paragraph 2 of this
article, such Court may, and upon request shall, order a period of time within which the claimant
shall bring proceedings before a competent Court or arbitral tribunal .(…). In accordance to article
479 of the 2014 Spanish Shipping Act the Court, for those cases where Spain is not competent will
fixed a time period from 30 to 90 days for the claimants to commence proceedings on the merits.

It is necessary to appear before the Court and place the security requested by the arrest order. In
the alternative, the arrest can be challenged, following the presentation of the challenge writ, the
Court will fix a hearing to hear both parties, and this will be followed by a new judgment on the arrest.
290
A Bank guarantee or cash is most common.

It depends on what the Court has ruled in the arrest order.

If the claimant agrees, yes. If no agreement is reached, the position has been that they are not.

The time to appear before the Court (few hours), normally with the Master of the ship, and put the
security.

Yes, within a period of 20 days from service of the arrest order the arrest can be challenged.
23. Which period of time will be granted by the Courts in order for the claimants to take lega-
laction on the merits?
Normally, the Court grants between 30 to 90 days for presentation of the action on the merits if the
case the Spanish Courts are competent.

Yes. Where the claimant fails in his action on the merits or in the arrest procedure per se, the Court
will normally hold the plaintiff to pay for the legal costs of the defendants and the damages flowing
from the arrest.
Yes, in fact it is an up-rising tendency. Spanish jurisprudence accepts both, the lifting and the pier-
cing of the veil. The former aimed at discovering the reality behind the corporation, while the latter
goes a step further, by unmaking the illegality sought under the corporation. In Spain, for it to be
able to pierce the corporate veil, the claimant needs to establish the following; enough evidence
to prove the unity of assets, interest, management, and actions between the Companies; the exis-
tence of an aim to defraud or prevent the application of the law, damaging the creditors rights; no
other possibility to obtain satisfaction of his credit.
A ship’s auction will normally take place as an enforcement of an action, hence at the end of the
proceedings. Unless all parties agree to have the ship sold at an earlier stage, the action will take
place at the very end of the process. Alternatively, in some cases the parties have reached an agree-
ment to bring the ship to Gibraltar for an urgent auction.
*Felipe Arizon is the managing partner of Arizon Abogados S.L.P. He holds a Ph.D in English Law from Newcastle University, a LL.M
from Southampton University, and has been a “Visiting Scholar” at the University of Tulane-New Orleans. Dr. Arizon acts before many
international and domestic arbitration forums including ICC, Gafta, Fosfa, CAP and RSA. He is a well-known barrister before Spanish
Courts, including High Courts, Appeal Courts, and Supreme Courts. Felipe is an author of the world leading maritime law book series, The
Lloyd’s Shipping Law Library (co-author of the volume Maritime Letters of Indemnity). He is regular contributor to international and Spanish
publications in commercial law, carriage of goods, insurance and arrest of ships and is The founder of www.shiparrested.com. Felipe is
lecturer at the Spanish State Institute for International Trade and has lectured widely in Spain and abroad, including: England (Newcastle
University; Lloyd’s Maritime Academy), Russia, Ukraine, Netherlands, France, and Turkey. Felipe is supporting member of the LMAA.
291
SHIP ARREST IN SRI LANKA
By Asoka Somaratne*
C. MATHEW & CO. (a Partner of Palitha Mathew & Company)
contact@cmathew.com
www.cmathew.com
172 Hufltsdorp Street, Colombo 12, Sri Lanka
Tel: 0094 11 3135440
Fax: 0094 11 2471255

A ship can be arrested under the Admiralty Jurisdiction Act No. 40 of 1983 for claims arising
under Section 2 of the Act. In an Action in rem filed in the Admiralty High Court of Sri Lanka,
a ship can be served with a Writ of Arrest for claims arising on matters as set out in Section
2(1)(e) to (q) in the Admiralty Jurisdiction Act No. 40 of 1983.
In the first instance application to arrest a ship is made ex-parte by filing an affidavit by the
plaintiff, setting out his full claim with all the supporting documents and supported by way
of a motion with a draft copy of the warrant of arrest to be issued by the judge of the High
Court to the Marshal commanding him to arrest the vessel and until further orders are given
by court. As a matter of practice , copy of a draft of a writ of summons in rem, a copy of the
warrant of arrest to be signed by the registrar, copy of a certificate of service of the warrant
of arrest by the Marshal of the High Court to be filed in court after the arrest are also filed
along with the affidavit of the plaintiff.
2. Which international Convention applies to arrest of ships in Sri Lanka?
Sri Lanka is a signatory to the 1952, Brussels Convention on the arrest of sea going ships. Sri
Lanka was in the committee which drafted the “INTERNATIONAL CONVENTION ON ARREST
OF SHIPS, 1999” under the auspices of the UN. If the provisions of this convention are not in
conflict with any other legislation of Sri Lanka, the provisions of these two conventions will
also apply to matters relating to the arrest of ships in Sri Lanka.
3. Is there any other way to arrest a ship in the Sri Lankan jurisdiction?
Other than under the provisions of the Admiralty Jurisdiction Act No. 40 of 1983, there are
no other ways to arrest a ship within the Sri Lankan jurisdiction.
4. Are these alternatives e. g. saisie conservatoire or freezing order?
These legal concepts are not applicable under the Sri Lankan law.
Admiralty Jurisdiction Act No. 40 of 1983 sets out the following types of claims under Section
2(1)(e) to (q) for which a ship can be arrested.
“2. (1) (e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of
(i) any defect in a ship or in her apparel or equipment; or
(ii) the wrongful act, neglect or default of the owners, charterers or persons in possession or
control of a ship or of the master or crew thereof or of any other person for whose wrongful
acts, neglect or defaults the owners, charterers or persons in possession or control of a ship
are responsible, being an act, neglect or default in the navigation or management of the
ship, in the loading, carriage or discharge of good on, in or from the ship or in the
embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to
the use or, hire of a ship;
(i) any claim in the nature of salvage;
(j) any claim in the nature of towage in respect of a ship;
(k) any claim in the nature of pilotage in respect of a ship;
292
(l) any claim in respect of
(i) goods or materials supplied, or
(ii) services rendered, to a ship for her operation or maintenance ;
(m) any claim in respect of the construction, repair or equipment of a ship or dock charges or
dues;
(n) any claim by a master or member of the crew of a ship for wages and any claim by or in
respect of a master or member of the crew of a ship for any money or property which under
any law in force for the time being is recoverable as wages ; (n) any claim by a master or
member of the crew of a ship for wages and any claim by or in respect of a master or
member of the crew of a ship for any money or property which under any law in force for
the
time being is recoverable as wages ;
(o) any claim by a master, shipper, charterer or agent in respect of disbursements made on
account of a ship;
(p) any claim arising out of an act which is or is claimed to be a general average act;
(q) any claim arising out of bottomry;”
Yes. Irrespective of the flag of the vessel anyone can file papers to arrest a vessel, if you have
a claim arising under Section 2(1)(e) to (q) under the Admiralty Jurisdiction Act No. 40 of
1983.
Yes. Arresting of a ship is with respect to any of the claims for damages under Section 2(1)(e)
to (q) of Admiralty Jurisdiction Act No. 40 of 1983. Therefore immaterial of the debtor, if
there is a prima facie claim for damages a ship can be arrested.
If the owner of a ship or ships is liable to a maritime claim, then not only the ship in respect
of which the maritime claim arose may be arrested but also all other ships in the same
ownership, when all the shares of those ships are owned by the same person or persons.
However, Admiralty Jurisdiction Act is silent, on sister ships and associated ownership.
If the registered owner of the ship is not liable for a maritime claim, then an arrest of a
vessel under the bareboat or time charter is not possible. Only where the owner is found to
be the debtor of the maritime claim an arrest is possible. Arrest of the vessel is not possible,
if the time charterer or bareboat charterer is solely liable for the claim.
A vessel can be arrested for a maritime lien, even if the vessel is on a bareboat or time
charter. However if the claim is in respect of the property itself such as relating to the supply
of bunkers to the vessel or unpaid repair bills which has enhanced the value of the property,
the ship may be arrested even if it is under the bareboat or the time charter.
No. It is the debtor who has to provide security to have the arrested vessel released.
Maritime claims for which a ship can be arrested are mentioned under the Sri Lankan law
under Section 2(1)(e) to (q) in the Admiralty Jurisdiction Act No. 40 of 1983. On the basis of
these claims, a ship can be arrested provided the owner is the same at the time, the cause of
action arose and is still the owner at the time of the arrest of the vessel. However maritime
liens can be enforced irrespective of the ownership of the vessel. Maritime lien can be
enforced even if the ownership has changed. The procedure for arrest of a ship is the same
whether it be for a maritime claim or arising out of a maritime lien.
Yes. In fact Sri Lanka is a signatory to the International Convention on Maritime Liens and
Mortgages 1993, held in Geneva. Maritime liens under the law of Sri Lanka are set out in
Section 83 of the Merchant Shipping Act No. 52 of 1971 as follows:
“83. Maritime liens of a ship shall arise out of-
(a) wages and other sums due to the master, officers and other members of the ship’s
293
complement, in respect of their employment on the ship;
(b) port, canal and other waterway dues and pilot age dues;
(c) claims against the owner (which term shall for the purposes of this section also include
the charterer, manager or operator of the ship) in respect of loss of life or personal injury
occurring, whether on land or water, in direct connection with the operation of the ship;
(d) claims against the owner, based on a wrongful act 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;
(e) claims for salvage, wreck removal and contribution in general average.”
Further priority of liens it is set out in the Merchant Shipping Act, Section 84 as follows:
“84. The maritime liens set out in section 83 shall take priority over mortgages and
preferential rights registered under Chapter 4, or arising under the Crown Debtors Ordinance
or the Insolvency Ordinance, and no other claim shall take priority over them, except as is
provided in section 86.”
to your law firm?
An application to court can be made almost immediately, if all the documents to support the
maritime claim or lien is ready with the affidavit of the plaintiff on an urgent basis once filed
can be supported even after normal hours in the chambers of the judge.
No Power of Attorney is required to arrest a ship. Normal proxy form has to be signed by the
plaintiff, authorizing the instructing attorney appearing for the plaintiff to file papers.
Thereafter an affidavit of the plaintiff fully setting out the maritime claim with all the
supporting documents should be prepared and filed in court to proceed to arrest a vessel.
15. What original documents are required, what documents can be filed electronically,
what documents require notarization and/or apostille, and when are they needed?
Under the Sri Lankan legal system filing of documents electronically is not yet in practice. All
documents filed in courts can be certified as true copies by the instructing attorney of the
plaintiff. When the case proceed to hear on merits, the original documents need to be
produced in court.
Once the Admiralty Court orders the arrest of a ship, it retains jurisdiction to adjudicate the
substantive claim of the plaintiff, unless there is exclusive agreement between the relevant
parties to litigate in another jurisdiction or to submit their dispute to arbitration. In such a
situation the arrest of the ship may not be maintainable.
17. Which period of time will be granted by the Courts in order for the Claimants to take
legal action on the merits?
Once the ship is arrested on the ex-parte application of the plaintiff, court will grant time to
file objections to the arrest. If no objections are filed to the arrest of the vessel, court acting
under rules framed under the Admiralty Jurisdiction Act, will grant time to the plaintiff to file
by way of a petition all matters to be adjudicated by court on the merits of the case.
Yes. The plaintiff is liable in damages for any wrongful arrest. These damages will arise
irrespective of the fact that the plaintiff did not act in bad faith or negligently, when
enforcing the arrest of the vessel.
If a vessel is sold to a separate legal entity for the purpose of evading a claim the court can
examine the circumstances of the sale and in exceptional situations will allow the piercing of
the corporate veil on grounds of fraud.
Pendente lite is a Latin term meaning “awaiting litigation” or “pending litigation”. A vessel
can be sold, if the party who made the application for the sale of the vessel can show that
the vessel had been arrested for some time and the ship is losing its value by deterioration.
294
Therefore court can sanction the sale of the vessel by public auction and deposit auction
money in a court account to settle claims arising in respect of the vessel.
It is specifically provided under Section 7(3) of the Admiralty Jurisdiction Act No. 40 of 1983
that if the property arrested is “subject to speedy decay the court may on an application
made in that behalf by the marshal direct that such property be sold and the proceeds
deposited in courts, pending the determination of the action”.
* Mr. Somaratne was admitted to the Bar in the Year 1973. He is a Senior Partner at the CMathew & Co. Law Office in Sri Lanka. He
along with the other partners assists in all Shipping & Admiralty maters in Sri Lanka besides all the other services offered by the C.
Mathew & Co. Law Firm.
Mr. Somaratne has more than 40 years of professional experience. His key practice areas are Admiralty and Maritime Law and other
related areas not limited to Maritime Commercial Law, Customs Law, Ship Registration. etc. He is a member of the Bar Association
and the Organization of Professionals Association. Among his many achievements, he is the Author of ‘Shipping Laws & Regulations
of Sri Lanka’. He is also the former advisor to the Ministry of Ports and Shipping and a former member of parliament.
295
SHIP ARREST IN TAIWAN
By Vincent W. Liu*
Liu & Co.
liuncotw@ms31.hinet.net
www.liunco.com
7th Floor, 73, Fu-Sing North Road
Taipei 10552, Taiwan.
Tel.: +886 2 2773 1133
Fax: +886 2 8773 0880

An arrest of ship in Taiwan shall be subject to either the Chapter on Precautionary Proceedings
under the Civil Procedure Code, promulgated on 1st February, 1935, effective from 1st July,
1935, and last amended on 8th May, 2013 (the ”CPC”), the Compulsory Execution/Enforcement
Act, promulgated on 19th January, 1940, effective from 21st January, 1940, and last amended
on 4th June, 2014(the “CEA”), and the Maritime Act, promulgated on 30th December, 1929,
effective form 1st January, 1931, and last amended on 8th July, 2009 ( the “MC”). In addition
to the foreclosure of ship mortgage and the enforcement of a final and irrevocable Court Judg-
ment or Arbitration Award in favour of the claimant/creditor against the registered shipowner
as the debtor; wherein, any ship of the same shipowner shell be at stake under the CEA, the
competent Court may grant a Civil Ruling to provisionally seize/attach or dispose the ship in
question, upon an application therefor submitted by the creditor/claimant. The criteria thereof,
however, are stringent, and the procedures involved are cumbersome.

Taiwan is not the signatory country to the International Convention for the Unification of Cer-
tain Rules Relating to the Arrest of Sea-Going Ships, 1952. Ship arrest is governed by the CPC,
CEA and/or MC as mentioned under Question1.

No, there is no other way to arrest a ship, in terms of securing the creditor’s/claimant’s alleged
claim.

Under certain circumstances, the ship could be subject to freezing order or saisie conservative,
if she violates specific Taiwan administrative laws and/or regulations.

Arrest ship is available for general claims, no matter maritime or not, under the lex causae, vis-à-
vis the registered shipowner of ship to be arrested, and for maritime liens according to the law
of ship’s flag, albeit the debtor in this context may be different from the registered shipowner
of her.
MC provides, inter alia, that:
The claims listed hereunder may be secured by maritime liens and are entitled to a preferential
right of compensation:
(1.) Claims of the shipmaster, seafarer or other members of the ship’s complement which have
arisen from their contracts of employment;
(2.) Claims against the shipowner, in respect of loss of life or personal injury directly arising from
the operation of the vessel;
(3.) Claims for salvage rewards, expenses for wreck removal or ships’ contribution on general ave-
rage;
(4.) Claims against the shipowner, based on tort in respect of damage to or loss of property oc-
curring, whether on land or on water, in direct connection with the operation of the vessel; and
(5.) Harbour charges, canal or other waterway dues or pilotage dues.
296
Yes.

Yes, as long as the debtor/opponent is the registered shipowner, or whom the maritime lien
claim is against.
It is possible to arrest sister ships owned, at the time when arrest is effectuated, by the identical
registered shipowner who is liable for the general claims mentioned hereinabove. The “ships in
associated ownership” has not been defined under Taiwanese laws, including the MA.

Unless the alleged claim constitutes a maritime lien against the subject ship, the ship may not be
arrested for any claims vis-à-vis her bareboat charterer, or time charterer.

With the exception of an arrest based upon the final and irrevocable Court Judgment, Arbi-
tration Award, or Civil Ruling granting the foreclosure of ship mortgage, the Court would only
grant, without adjudicating the validity of claimant’s application or claims on the merits of the
case, such an arrest, seizure/attachment against a counter-security in the form of cash, the
amount of which is subject to the Court’s discretion, normally one-half (1/2) or more of the
alleged claim amount. In addition, the claimant should pay around decimal eight percent (0.8%
or 8/1,000) of its claim amount to the Court for the provisional seizure execution/enforcement
fees when submitting the subject application, which shall be deductible when the compulsory
enforcement/execution of the final and irrevocable Court Judgment is eventually lodged.
Subject to the law of ship’s flag, an arrest for a maritime lien can be done irrespective of ship’s
ownership, who may be not identical to the registered shipowner. The application for arrest in
this context should be thoroughly elaborated upon since generally speaking, the Court adjud-
ges such an application prudently and strictly, as there is no concept of “action in rem” under
Taiwanese legal system.
Yes, but it is subject to the law of ship’s flag. As to the maritime liens under Taiwanese law,
please refer to above-mentioned 5. Taiwan is not a signatory country to any International Con-
ventions on maritime liens.
your law firm?
Provided the required information, documents and counter-security, if necessary, are well-pre-
pared, an arrest may be completed within three (3) to five (5) days, should no complications
arise.
Yes, notarized and legalized Powers of Attorney (the “POA”) as well as the following docu-
ments/information are required:
(1) The full style of claimants, including their full name, registered address of headquarters and
the name of their legal/statutory representative, i.e., the chairman of board of directors, the ma-
naging director, the president or the general manager who is the legal/statutory representative
for the claimants under the law of the country/state where the claimants are duly incorporated;
(2) The information set forth in the preceding Item (1) of the debtors/opponents and if neces-
sary, the proof in this context;
(3) The proof as to the ownership of the vessel to be arrested, i.e., a Certificate issued by the
competent authorities of the state/country of her flag, which could sufficiently certify that she is
currently owned by and registered under the name of debtors, or a similar statement on search
therefor issued by the lawyer practising in the state/country of her flag;
(4) The description of claimants’ claims vis-à-vis the debtors;
297
(5) Copies of all the relevant documents regarding the claimants’ claims; and
(6) ETA and ETD of the vessel.
Certain numbers of type-written originals each of POA duly and separately executed by the
chairman of directors board, the managing director, the president, or the general manager,
who is deemed to be the legal/statutory representative therefor under the laws of the country
where the claimants have been incorporated, of the claimants, before a notary public (notariza-
tion) and legalized/authenticated by the Taiwanese consulate or de facto consulate stationed
in the country where POAs shall have to be issued and then sent to us by e-mail, facsimile and
post. For the purpose of arresting ship, other documents could be submitted in copies thereof at
the outset. Nevertheless, all the respective originals thereof shall be required to present before
the court of trial, if any, at a later stage.
ted?
Unless the claim arising from a contract contains an exclusive foreign jurisdiction clause, or an
arbitration in foreign forum clause, the Taiwanese Court accepts jurisdiction over the substanti-
ve claim once the vessel has been arrested.

In the case of an arrest based upon the final and irrevocable Court Judgment, Arbitration
Award, or Civil Ruling granting the foreclosure of ship mortgage, the debtor, registered shi-
powner, or the interested part may apply, relying upon CEA, etc., to the Court for releasing the
arrested ship against the lodgement of security in the amount of the alleged claim amount as
well as the execution fees as court costs; or an equivalency of the ship’s value; or an appropriate
assets. As to the provisional seizure/attachment or disposal proceedings, the Court, when gran-
ting a Civil Ruling to provisionally seize/attach or dispose the ship in question, mentioned under
Question 1, would normally allow the debtor/opponent or registered shipower to revoke the
provisional seizure/attachment or disposal proceedings, resulting in the release of arrested ship,
against the ledgement of security, the amount of which is normally tantamount to the creditor’s
alleged claimed amount or more.

The security could be in form of: (1) cash; (2) the interest bearing term deposit/certificate issued
by a local bank, (3) an appropriate assets; or (4) a letter of guaranty issued by local underwiter/
insurer, or local bank running insurance business, which should explicitly undertake, inter alia,
that the issuer shall be responsible for recouping the alleged debt and/or compensating the
creditor for a certain sum in the event that the debtor, or registered shipowner does not fulfil its
obligation. Items (2) to (4) shall be subject to Court’s discretional approval.

The security need to cover the alleged claim amount and the court costs, or execution fees.

P&I LOUs would not be accepted, unless it is a local underwriter/insurer.

It would take around ten (10) business working days, should no complications arise.

There are several approaches to contest the arrest under CEL and CPC.
The shipowner of arrested ship, or the named debtor may apply with the Court for a Ruling
ordering the claimant to take legal action on the merits within normally seven (7) days, failing
which the arrest may be left. Such a Ruling shall be rendered within two (2) to three (3) weeks
upon an application.
298
Yes, but the substantiation of damages and/or loss shall be subject to another lawsuit.
Very rarely.
It is very impossible.
*Vincent W. Liu, LL. B., 1978, Faculty of Law, Fu-Jen Catholic University; LL. M., 1985, The London School of Economics and Political
Science, University of London, admitted in Taiwan as an attorney–at-law, patent attorney & licensed conveyancer, as well as arbitrator
(registered in panel), who helms Liu & Co. has been nominated and selected since December, 1999 as one of three leading international
trade and maritime lawyers in Taiwan by Euromoney Legal Media Group in its “Guide to the World’s Leading Shipping & Maritime Lawyers”
and “Guide to the World’s Leading International Trade and Shipping Lawyers”.
299
SHIP ARREST IN THAILAND
By Philippe Pruvot
3A BANGKOK CO., LTD.
legal@group3a.com
Eastern Tower - Condominium 39/16 - Jermjomphol Road
20110, Chonburi, Sriracha, Thailand
Tel: +221 8 2546 0770

In Thailand, the ship arrest procedure is subject to The Arrest of the Ships Act, B.E. 2534. The
vessel subject to a potential procedure of arrest must be a seagoing ship used in the interna-
tional carriage of goods or passengers. The arrest must be made by way of petition before the
Court which has jurisdiction. If the creditor provides evidence before the Court that his claim is
a maritime claim as stated by the section 3 of the aforementioned Act, the Court would order
the arrest of the ship concerned.
Under the provision of the Arrest of the Ships Act, B.E. 2534, the arrest procedure must be
urgent. For instance, upon acceptance of a petition for ship arrest, the Court would hold an ex
parte inquiry without delay.
However, the creditor who would like to apply for a petition to arrest a ship must be domiciled
in Thailand. If not, the Court would not allow the arrest of the ship.

Thailand does not apply any International Convention. However, the Arrest of the Ships Act,
B.E. 2534 is based on the content of the International Convention Relating to the Arrest of Sea-
going Ship, signed at Brussels, on May 10th, 1952.

No.

No.

The maritime claims which could base an arrest procedure in accordance with the Arrest of the
Ships Act, B.E. 2534, are the following:
-Loss of life or personal injury caused by any ship or which occurs in connection with the ope-
ration of the ship;
-Salvage;
-Agreement relating to the use, hire, hire-purchase or loan of any ship, provision of transport
service, or any other similar agreement;
-General average act where the ship owners, the carriers and the owners of such goods as
carried in a ship are bound to compensate the owners of a particular property in consequence
of an international act which is necessarily incurred for the common benefit of all the parties
concerned or for the common safety of the ship and goods carried therein, provided that there
exists a specific law or mutual agreement governing liability in this regard;
-Loss or damage to properties carried in any ship;
-Towage;
-Pilotage;
-Goods or materials wherever supplied to a ship for its operation or maintenance;
-Construction, repair or equipment of any ship or dock charges and dues;
300
-Port facilities or port charges or dues;
-Stevedoring charges;
-Wages of ship masters or personnel;
-Master’s disbursements, including disbursements made by the charterers, the agents, or the
shippers on behalf of the owner or controller of a ship;
-Disputes between co-owners of a ship as to its possession, employment on earning;
-Mortgage of a ship.

The answer is yes. Basing on a maritime claim as mentioned in item 5, if the vessel is a sea-going
ship in accordance with the definition stipulated in Section 3 of the Arrest of the Ship Act, B.E.
2534, the creditor can file a motion regarding the application of an arrest of a ship regardless
of the flag of the ship.

The creditor who is domiciled in Thailand can apply before the Court for obtaining an order to
arrest a ship owned by a debtor or which is in his possession, i.e. time chartered vessel etc; thus,
the arrest of the ship’s procedure as regards sister ship is possible in Thailand.
With regards to the arrest of sister ships, please refer to point 7.
With regards to the arrest of the ships in associated ownerships, a ship owned by the associa-
ted ownership cannot be arrested due to it is not owned by the debtor or in possession of the
debtor.

Please refer to our comment point 7.

Before ordering the arrest, in practice, the Court would direct the creditor to furnish such secu-
rity as it thinks fit to cover any damage arising out of the arrest.
There is no difference.
In Thailand, there is the specific Law regarding the maritime lien, namely, the Ship Mortgage
and Maritime Lien Act, B.E. 2537.
your law firm?
In case the information and all documents are complete, the arrest and release procedure can
be completed within 1-2 business day.
A POA is not required in case of arrest of a ship. However, in case of release of a ship owned
possessed by a debtor who is not domiciled in Thailand, a POA or LOA (Letter of Appointment)
would be required.
The electronic submission of the documents has not yet been available before Thai Courts’
procedure, but in ex parte inquiry, the creditor may adduce the copy document certified by the
creditor to support the claim before the Court.
In principle, once the vessel is arrested in Thailand, the Courts accept jurisdiction.
301
The debtor or any person who has sustained damage by reason of ship arrest is entitled to apply
to the Central Intellectual Property and International Trade Court for release of the ship. Once
the application being filed, the Court would set up the trial and order the release on being sa-
tisfied that the security furnished by the applicant is valued or worth no less than the amount
stipulated in the arrest order.
Normally, cash or bank guarantee. Letter of Undertaking issued by P&I Club is unacceptable for
the Court.

No (see our answer to question no. 17 above)

No (see our answer to question no. 18 above)

Normally, one day.

No. The application for ship arrest is ex parte, and the Court order for arrest is final. Howe-
ver, the debtor is entitled to initiate an action to recover damage arising from wrongful arrest
against the creditor.
Once a ship has been arrested, the creditor has to initiate an action based on his maritime claim
within 30 days after a warrant of arrest has been posted on the vessel. If not, the Court shall
have the power to order the release of the ship.

Thailand recognizes wrongful arrest. The debtor can make a counter claim to recover damages
in respect of the arrest applied for the creditor.
This concept is not yet acknowledged by the Courts.
In Thailand, there is not any apparent statute prohibiting the selling of the vessel pendent lite.
302
SHIP ARREST IN TUNISIA
By Dr. Brahim*
LATRECH Law Firm
contact@cabinetavocat-bl.com
www.cabinetavocat-bl.com
57 Avenue de la Liberté - Lafayette 1002
Tunis – Tunisia
Tel: 0021624292700- 002167183414
Fax: 002167183414

Through five trade ports, Tunisia is one of the best forums in the world for vessel arrests with
simple and fast procedure. Not only can you sue the vessel here but you can also have it arres-
ted and held under arrest until claim is settled. Tunisian Maritime Trade Law N° 13 /1962 and
the Civil Procedure Code is the cornerstone of ship arrest and they remain the major source in
Tunisia.

Tunisia has not ratified any of the International Conventions related to Ship Arrests but the Tuni-
sian legislator was inspired by the International Convention Relating to the Arrest of Sea-Going
Ships Brussels, May 10, 1952.

There are some others ways to arrest ship in Tunisian ports:
-Under procedures of execution
-Administrative arrest by Harbour Master
-Under Criminal matter
-Arrest in accordance with court or arbitration awards

These measures are similar to saisie conservatoire or freezing order.

The types of claims which can lead to an ship arrest are covered by Tunisian Maritime Trade
Law n° 13 /1962 identified in Article 101 CCM: disputes relating to ownership, damage to goods
carried on a vessel, the costs of goods or materials supplied to a vessel, construction or repair
of a vessel, and claims arising out of charter agreements. wages of Masters, Officers, or crew,
towage, pilotage, construction, repair or equipment of any ship or dock charges and due,…

In Tunisia the presence of any vessel at Tunisian waters gives the court jurisdiction in rem over
the vessel and in personam over the owners, operators and charterers. Tunisia does not recog-
nize governmental immunity for state owned commercial trading vessels. Any vessel capable of
being used in navigation can be arrested therefore pleasure vessels can be arrested.

In Tunisia, the claims subject to Tunisian Law permit the arrest of a vessel, regardless of whether
the underlying debt is incurred by owner, disponent owner, operator or charterer.
Under Tunisian Law anyone with authority binds the vessel in rem (in rem” actions, meaning
that the action is against a thing, rather than against a person). The ship can be arrested even if
the ship owner’s is not the debtor of the maritime claim. In order to have his ship released from
arrest, the ship owner’s have to pay the claim or to give a Bank guarantee issued by a Tunisian
bank or else a cash deposit at the General Treasure Department of Tunisia .The ship owner’s
will have to guarantee the payment of the claim, even if a third person charterer, issuer of the
Bill of Lading is the debtor toward the arresting party. Generally, the vessel, itself, is responsible
303
owner encumbers a vessel with a First Preferred Ship’s Mortgage, it is the vessel that guarantees
payment, rather than the owner. However, the owner may be personally liable if they signed a
personal promise or guaranty to pay.
In the context of a legal claim against a particular ship, and in certain circumstances, Tunisian
Maritime Trade Law allows the arrest of another ship belonging to the same owner.

A vessel that is in the ownership of the charterer can be arrested for a maritime claim against a
time charterer.

Tunisian law practice does not impose on the claimant the deposit of a counter-security to cover
costs, charges, damages, fees or other expenses deriving from a potential wrongful arrest But
under the Tunisian Maritime Trade Law n° 13 /1962 Article 104 the seizure may be subject to
the condition that a bond or guarantee is validated from Applicant.
There is no substantial difference between arresting a ship for a maritime claim or a maritime
lien.
Tunisia recognizes maritime liens under the Tunisian Maritime Trade Law n° 13 /1962 , not
under any Convention but the Tunisian legislator was inspired by the International Convention
Relating to the Arrest of Sea-Going Ships Brussels, May 10, 1952.
your law firm?
Usually two working days is enough for our law office to arrest a ship.
No power of Attorney is requested.
According to Tunisian Law, the arrest of a vessel is made through an order on request. For this
purpose, all documents proving the debt and the expenses are required (please note here that
all the documents to be presented to the judge must be translated into Arabic language). Do-
cuments filed electronically are accepted.

There are two types of releases:
- By the Defendant: It is necessary to make an emergency action called “référé” before the com-
petent court.
- By the Claimant: There is no need for the claimant to go to the court. The only requirement
is a notification of the release by a bailiff following the payment of the claim by the Defendant
or an agreement between the latter and the Claimant involving payment or the issuance of an
acceptable bank guarantee or a cash deposit.

A bank guarantee issued by a Tunisian bank or else a cash deposit at the General Treasure
Department of Tunisia.

In some cases, but it always depends on the judge’s ordinance.

No, Club LOUs are not accepted in Tunisia.
304
Between 4 and 10 hours.

An emergency action called “référé” to be presented within 8 days from the date of notification
of the arrest.
We must introduce a case validation within a period of one month if the arrest is lifted once this
period surpassed.

In an only case if the claimant knew it had no maritime lien or right of arrest and nonethe-
less proceeded with the arrestand with the intention to cause damage to the defendant. The
burden of proof in relation to these matters rests on the Defendant who claims damages for
wrongful arrest.
The Tunisian courts are not generally inclined to lift the veil of corporate personality.
*Brahim Latrech, born in 1965, has a Master Degree in Law from the University of Perpignan (France) and holds the title of Docteur d’Etat
en Droit . In 2002 he set up the Brahim Latrech Law Firm, specialised in maritime law.
Brahim Latrech is member of the Association Française du Droit Maritime, of the Association Tunisienne du Droit Maritime and founder of
the Revue du Droit Maritime Tunisien.
305
SHIP ARREST IN TURKEY (Questions 1 to 9)
By Zeynep Özkan*
ÖZKAN LAW OFFICE
zeynep@ozkan.av.tr
www.ozkan.av.tr
Husrev Gerede Cad. Omer Rustu Pasa Sok. No:12
34357 Tesvikiye / Istanbul
Tel: +(90 212) 327 69 40
Fax: +(90 212) 327 69 43

As a part of preparations for EU membership, Turkey is in the process of amending or promul-
gation its primary and secondary legislation. Within this framework, the long pending Turkish
Commercial Code, a key element for the accession negotiations, was promulgated on 14 Fe-
bruary 2011 and entered into force on 1 July 2012 (“New TCC”). New TCC regulates the ma-
ritime matters as well as other areas of commercial transactions and radically amended many
aspects of Turkish maritime law, including arrest of ships. Until the enactment of the New TCC,
there were no specific rules on ship arrest. The arrest of a ship was in general terms no different
than any other conservatory measure or conservatory attachment of any other assets of a de-
btor. The New TCC, however, has specific provisions on the arrest of vessels and aims to bring
a full and unified set of rules dealing with all aspects of arrest of ships and to tackle the special
needs of the different parties in maritime transport.

Turkey is not a party to any of the international conventions on the arrest of ships.
During the preparatory stage, the committee that has prepared the New TCC looked the arrest
rules of various states such as England, Germany, US, South Africa as well as international arrest
conventions. The arrest provisions of the New TCC mainly reflect the provisions of the Interna-
tional Convention on the Arrest of Ships 1999 even though Turkey is not a party to the aforesaid
convention. In addition, relevant provisions of the International Convention on Maritime Liens
and Mortgages 1993 are also reflected in the New TCC.

The New TCC regulates the arrest of ships specifically and prohibits any other ways to arrest a ship.

From the procedural point of view, conservatory attachment leading to the arrest of the vessel
is the only conservatory measure permitted under the New TCC. Other conservatory measures
such as a freezing order or similar shall not be applicable with respect to a maritime claim.

Before the enactment of the New TCC, in principle, arrest of a ship in Turkey can take place for
all types of claims regardless of whether the claim has a maritime character or is connected
with the ship to be arrested or not. The New TCC, however, adopts the definition of “maritime
claim” provided in the International Convention on Arrest of Ships, 1999 and restricts the arrest
of ships for maritime claims enumerated in the New TCC.

A ship can be arrested in Turkey irrespective of her flag.

Except for arrests in order to enforce a maritime lien, only the vessels owned by the debtor can
be arrested.
306
8. What is position as regards sister ships and ships in associated ownership?
The New TCC specifically deals with the issue and permits the arrest of any other ship of the
debtor provided that they are owned by the debtor liable for the maritime claim.
9. What is the position as regards Bareboat and Time-chartered vessels?

Except for arrests based on a maritime lien, only the vessels owned by the debtor can be arres-
ted. The arrest of a ship due to the debt of a charterer is not possible if such debt does not grant
a maritime lien.
* Zeynep Özkan Özeren has a degree in both law and international relations and a post graduate degree in shipping law from University
of Southampton. After working with various international consultancy firms specialized in transportation law and a local law firm in Istanbul,
she founded Özkan Law Office in 2005. Her practice mainly focuses on shipping law and international trade law.
Zeynep Özkan Özeren is as a lecturer of international trade law at the Bogaziçi University, Istanbul. She is a member of Istanbul Bar
Association and International Bar Association.
307
SHIP ARREST IN TURKEY (Questions 10 to 26)
By Sinan Güzel*
TCG FORA Law Office
s.guzel@foralaw.com
www.foralaw.com
Altunizade Mahallesi, Mahir Iz Caddesi,
Kütük Is Merkezi, Kat 2, 34662 Üsküdar, Istanbul
Tel: +902166512322
Fax: +902166514580

Under Article 1363 of the new Turkish Commercial Code (TCC), the applicants are required to
deposit lumpsum SDR (Special Drawing Rights) 10,000.00 counter security irrespective of the
claim amount. The counter-security can be by way of cash deposit or Turkish Bank Guaran-
tee. Provision of the counter-security is a pre condition for the arrest application and the court
will not even review the application if the counter-security is not deposited. The respondent
(Owners) may apply to the court requesting the counter-security to be increased. If the court
accepts such application to increase the amount of the counter-security, it will set a deadline for
the arresting party to supplement the counter-security. If the additional security is not provided
within such deadline, the arrest order will automatically become null and void. In the same sen-
se, the arresting party may also request the court to decrease the counter-security.
Arrest applications for crew wages are exempted from providing counter-security. No objection
in this regard can be listened by the court.
If the claim grants a right of maritime lien under Turkish Law, the theory that the maritime lien
attaches upon the vessel applies and the vessel can be arrested even if the Ownership has been
changed. There is no difference with regard to the applicable procedure.
The primary sources of the TCC as to the arrest regime and the maritime liens are two significant
conventions which are International Convention on Maritime Liens and Mortgages (Geneva 6
May 1993) and International Convention on Arrest of Ships (Geneva 12 March 1999). Relevant
Part of Article 1320 of TCC which is very identical to Article 4 of the Geneva 1993 Convention
is as follows:
“Each of the following claims against the owner, demise charterer, manager or operator of the
vessel grants a right of maritime lien to its claimant on the vessel:
(a) Claims for wages and other sums due to the crew members in respect of their employment
on the vessel, including costs of repatriation and social insurance contributions payable on their
behalf;
(b) Claims in respect of loss of life or personal injury occurring, whether on land or on water, in
(c) Claims for reward for the salvage of the vessel;
(d) Claims for port, canal, and other waterway dues and pilotage dues;
(e) Claims based on tort arising out of physical loss or damage caused by the operation of the
vessel other than loss of or damage to cargo, containers and passengers’ effects carried on the
vessel.
(f) The general average contribution credit claims’’
your law firm?
The court will attend the arrest application as a matter of priority. Once the application is filed
with all the supporting documents properly translated, it is possible to obtain the arrest order
within the same (even within a couple of hours) or latest the next working day of the application.
308
We need to provide a valid POA to the court. The POA has to be notarised and apostilled (or
attested by the Turkish Consulate). In practice, the courts generally find it sufficient that the
executed POA is sent electronically in the first instance. The original POA has to be provided at
a later stage. The documents in support of the claim also have to be provided.
It is possible to obtain the arrest order with fax or electronic copies of the documents in support
of the claim. Only the POA requires notarisation and apostille. However, should the counter
party files an objection against the arrest order, there may be a requirement for submission of
the originals of the major supporting documents depending on the nature of the objection. All
the documents are required prior to filing the application.
Under Article 1359 of TCC, the Turkish Court granting the arrest order has jurisdiction over the
substantive claim provided that there is no jurisdiction agreement between the Arresting Party
and the Respondents.

A ship can be released from arrest either;
17.1. By provision of security,
17.2. Or if the objection against the arrest order is accepted and the arrest order is set aside by
the Court
17.3. Or if a final Judgement dismissing the maritime claim is rendered.
The court should send a written notice to the Enforcement Office which has executed the
arrest order that the arrest has been lifted and that Enforcement Office should send orders to
the relevant authorities such as the Harbor Master, Coast Guard and the Customs Authorities.
Upon receipt of the release order such authorities have to complete the formalities for releasing
the ship promptly.

The Owners should provide sufficient security covering the claim, interest and costs thereof for
the release. In practice, the security is provided in the form of Turkish Bank Guarantee. However,
other forms of security by means of cash deposit, mortgage on real estate may also be accepted.
The parties are also free to agree for the production of a P&I Letter of Undertaking as security.
Otherwise, the court will decide the form of the security which will be either a Turkish Bank
Guarantee or Cash Deposit. Beyond the Owner, the time charterer, manager or the mortgagee
is also allowed to provide security for releasing the vessel. If so, the court will ensure that the
final title issued against the person liable is also enforceable against the security provided. If
the maritime claim exceeds the value of the ship, security covering the value of the ship will be
sufficient for the release.

Yes. The security must cover interest and costs.

P&I LOUs can only be accepted as sufficient to lift the arrest if the parties agree. Otherwise, the
court will not accept a P&I LOU for lifting the arrest.

If acceptable security is provided or the arrest order is set aside by the court upon an objection
against the arrest order or by a final judgement dismissing the maritime claim, the ship can be
released within a couple of hours.

The Owners may challenge the arrest order immediately upon execution of the arrest and in
any event within 7 days after learning the arrest order. This period commences on the date
when the objecting party receives the information about the arrest. The time will in any event
309
start from the day of execution of the arrest. The Owner and all other parties like mortgagee,
charterer may also file objections against the arrest order. If the claimant has filed its substantive
claims, before the competent court, objections have to be filed before such court; otherwise the
objection has to be filed before the court which has granted the arrest order. The objection has
to be filed in writing and can be against the jurisdiction as to place, the security and the cause
of the arrest. The objecting parties must enclose all evidence they rely on for their objections.
The court must open a hearing and invite the arresting and the objecting parties. The court
generally makes its decision during such hearing. The court is limited with the reasons set out
by the objecting party. Based on the validity of the objections, the court may uphold, set aside
or modify the arrest order.
Under Article 1376 of TCC, the legal action on the merits has to be taken within one month after
obtaining the arrest order by filing a case before the Competent Court or by initiating enforce-
ment proceedings before the Enforcement Offices. Otherwise, the arrest order will become null
and void.

Under Turkish Law no particular provisions have been set out in respect of the wrongful arrest
of the ships. The Respondents may at any stage claim that the arrest is wrongful and unjustified.
If the arrest is found wrongful, the applicant is liable against the Respondents and the third
parties for any and all damages arising from or in connection with the arrest. The mere dismissal
of the substantive proceedings (proceedings on merits) is sufficient to invoke liability against
the arresting party for a wrongful arrest. Thus, it simply has to be established that the claim, for
which the arrest was granted, is rejected in full. However, if the claim was partly upheld, the
liability would not arise.
The court granting the arrest order has the jurisdiction for the claims arising out of wrongful
arrests.
The losses and damages arising out the wrongful arrest may be satisfied from the counter-secu-
rity deposited by the Arresting Party if the amount of the same is sufficient (if not, enforcement
proceedings have to be initiated against the Arresting Party)
The task of piercing the corporate veil under Turkish law is extremely difficult. Before the corpo-
rate veil can be lifted the following facts must exist:
(a) The persons vested with authority to represent and bind both companies are the same;
(b) Both companies have the same shareholders and board of directors/managers;
(c) Transfer of the shares of the relevant company to a third party with the intention of escaping
its liabilities i.e. bad faith.
Under Article 1386 of TCC, it is possible to have a ship sold pendent lite if:
The value of the ship reduces substantially and cost of maintaining the ship is excessive, the ship
or her cargo causes danger for the safeties of human being, properties and environment. There
is no certainty regarding the time for this issue.
*Sinan Güzel is graduated from Ankara University, Faculty of Law, in 1999. During his education he worked in various Law Firms to familia-
rize with general practice of Turkish Law. After his graduation, he joined a foreign Marine Consultancy firm in Istanbul and started to work
with a British Solicitor. He was qualified as a Turkish Lawyer and admitted to Istanbul Bar in 2000. After his qualification, he continued to
work with the foreign marine consultancy firm for 8 years where he was actively involved in all kinds of Maritime Law related matters locally
and internationally and has built up extensive experience. He has set up Fora Law Office with his colleagues in September 2008, which
became one of the leading Maritime Law Offices in Turkey within a short period. Beyond ship arrest, Sinan has considerable experience
in maritime related litigations, and Marine Casualties. He is fluent in English.
310
SHIP ARREST IN UAE (Questions 1 to 9)
By Bashir Ahmed & Chatura Randeniya*
AFRIDI & ANGELL
bahmed@afridi-angell.com
www.afridi-angell.com
P.O. Box 9371 Dubai, UAE
Tel: +971-4-330-3900
Fax: +971-4-330-3800

Under the UAE Federal Maritime Law (Law No. 26 of 1981) (“FML”) a right of arrest as provisional relief may
be exercised in respect of a maritime debt. Claims constituting “maritime debts” are listed in Article 115 of
the FML (see question 5).
An ex parte application is made to the Civil Court having jurisdiction over the port where the vessel is and the
grant of any relief is entirely discretionary. A Plaintiff must provide prima facie evidence that it has a maritime
debt against the Defendant, and that unless an arrest order is made, the Defendant is likely either to leave
the Emirates permanently or to act in a manner which is likely to prejudice the Plaintiff’s rights.
The court will after examination of the application and the supporting documents filed arrive at a decision
- often without hearing Counsel. The Court may require counter security from the Plaintiff in the form of a
bank guarantee (see question 10). If an arrest order is granted a substantive suit has to be filed within 8 days
of the grant of the arrest order. The court will also require the following from the Plaintiff:
(a) An undertaking to pay all official fees and expenses relating to the towing or moving of the vessel or in
any way connected with the arrest of the vessel including any amounts due to the crew;
(b) An undertaking to compensate the owners of the vessel against any delay or damage that may arise from
the arrest of the vessel if the arrest is held to be wrongful by a judgment of the court.
(c) The Dubai courts have in the past been known to require confirmation from the port that the defendant
is the owner of the vessel and that the vessel is within port limits.
The FML (Article 122) provides that the civil court in whose area of jurisdiction the arrest took place shall be
competent to decide on the subject matter of the claim in certain circumstances even if the vessel does not
fly the UAE flag (see question 16).
The FML (Article 325) contains certain provisions as to the jurisdiction of the courts in cases involving collisions.
The UAE Civil Procedure Code of 1992 as amended by Federal Laws No. 30 of 2005 and 10 of 2014 (“CPC”)
appears to confer jurisdiction upon the UAE courts to hear a case against a foreign defendant who has no
domicile or residence in the UAE and also to order provisional relief (such as the arrest of a vessel) even when
the courts do not have jurisdiction to adjudicate upon the substantive merits of the matter.
The UAE courts have granted arrest applications as security for arbitration proceedings in another jurisdic-
tion. In addition to the powers of arrest conferred by the Maritime Law, the Port Authorities of each Emirate
also have certain powers of arrest and detention.
The UAE courts do not award legal costs other than in a token amount. Accordingly, the costs relating to the
arrest and substantive suit will not be recoverable.

The UAE is not a party to any International Convention relating to arrest of ships. The arrest will be under the FML.

See questions 1 and 2 above. The arrest is under the FML.
311
The arrest is under the FML.

Claims which constitute “maritime debts” as listed in Article 115 of the FML. These are:
(a) damage caused by a vessel as a result of a collision or other accident;
(b) loss of life or personal injury occasioned by the vessel and arising out of the use thereof;
(c) assistance and salvage;
(d) contracts relating to the use or exploitation of the vessel under a charter party or otherwise;
(e) contracts relating to the carriage of goods under a charter party, bill of lading, or other documents;
(f) loss of or damage to goods or chattels transported by a vessel;
(g) general average;
(h) towage or pilotage of a vessel;
(i) supplies of products or equipment necessary for the use or maintenance of the vessel, in whichever place
the supply is made;
(j) building, repairing or supplying a vessel and dock dues;
(k) sums expended by the master, shippers, charterers or agents on account of the vessel or on account of
the owner thereof;
(l) wages of the master, officers and crew, and other persons working on board the vessel under a contract
of maritime employment;
(m) disputes over the vessel’s ownership;
(n) a dispute in connection with the co-ownership of the vessel, or with the possession or use thereof, or with
the right to the profits arising out of the use thereof;
(o) a maritime mortgage.

Yes.

Yes, assuming that it is not a sovereign asset enjoying immunity in law.
The Plaintiff may arrest not only the vessel to which the claim relates, but also any vessel owned by the
Defendant provided it was owned by him at the time the claim arose. The courts are not generally inclined
to lift the veil of corporate personality. There is no right to arrest other vessels owned by a Defendant in the
following circumstances (Article 116.2 and 117 of the FML):
a) in a dispute regarding the ownership of the vessel;
b) in a dispute relating to the co-ownership of the vessel, or the possession or use thereof, or the right to
profits arising out of the use thereof;
c) in a claim arising from a maritime mortgage;
d) where the vessel was chartered by demise.
In relation to a claim against a vessel not owned by the owner but by the demised charterer, the Plaintiff may
arrest either the vessel in respect of which the claim arose or any other vessel owned by the demisecharterer.
The Plaintiff may not arrest other vessels owned by the owner of the vessel in respect of which the claim arose.

See question 8.
*Bashir Ahmed joined Afridi & Angell in 1988. He advises clients on cross-border, maritime, general corporate and commercial, private equity,
and banking matters. His maritime practice involves advising ship owners and P&I Clubs, dry docks and a number of ship repair companies
on shipbuilding contracts, arrest of vessels, cargo claims, as well as advising on disputes. He represents a number of banks on ship financing
transactions.
Bashir has considerable experience advising international and domestic banks on a wide range of matters including loan and credit facilities, syn-
dications and regulatory matters and has advised on a number of mining and refinery projects as well as infrastructure projects. He was secon-
ded to the regional office of an international bank for a period of 18 months, and acted as counsel for the Middle East and South Asia operations.
*Chatura Randeniya joined Afridi & Angell in 2008. His practice consists primarily of dispute resolution, ranging from pre-litigation strategy to
representation in substantive litigation and arbitration. He advises and represents clients in arbitration, and has represented clients in DIAC,
ADCCAC, and ICC arbitrations. He also works with local advocates on matters before the UAE Federal Courts, including the Federal Supreme
Court in matters of national security, as well as the Courts of Dubai and Ras Al Khaimah.
Mr Randeniya advises on maritime and shipping disputes, real estate and construction disputes, and disputes relating to commercial transac-
tions. He has advised ship owners, P&I clubs, and drydocks on a wide range of disputes including arrest of vessels and cargo claims. Prior
to joining Afridi & Angell Mr Randeniya was in the private bar of Sri Lanka practicing in the Law Chambers of Dr Harsha Cabral, President’s
Counsel. He was also a visiting lecturer in law at the faculties of Law and Management at the University of Colombo.
312
SHIP ARREST IN UAE (Questions 10 to 26)
By Jasamin Fichte & Alessandro Tricoli*
FICHTE & CO Legal Consultancy
info@fichtelegal.com
www.fichtelegal.com
Sheikh Zayed Road Business Bay,
Prism Tower 19th floor, PO Box 116637 Dubai-UAE
Tel: +971 4 43 57 577
Fax: +971 4 43 57 578

There are no provisions in the UAE Federal Law No. 26 of 1981 (the Maritime Code) setting out the arresting
party’s obligation to provide counter-security and this is dealt with at the discretion of the judge. This is a
difficult aspect of the process because the claimant does not know with certainty whether or not he will be
required to put up counter-security and, if so, how much. The UAE Court will not accept P&I letters of un-
dertaking as forms of security, so counter-security normally takes the form of cash or a local bank guarantee.
Recently UAE Courts have been more and more consistent in requesting for counter-security, however there
is no possibility to anticipate the quantum of such counter security required.
The Maritime Code does not make differences between a maritime claim and a maritime lien. Accordingly,
an arrest application by the court would only be accepted if the claim falls within the purview of a “mariti-
me debt” as listed in Art. 115 of the Maritime Code (similar to the “maritime claim” under the 1952 Arrest
Convention).
The concept of maritime liens does not exist with regards to arrest of vessels, however, the Maritime Code
refers to “maritime debts” which are somehow analogous to maritime liens.
If the arrest is urgent, the Urgent Matters Judge can be approached for the issuance of an arrest order within
the same day (or maximum the day after) provided the documents listed in point 15 below are presented
to the Courts. In practice however, the time frame will depend on the availability of (i) an original power of
attorney, and (ii) translation of the supporting documents.
To arrest any vessel in the UAE, the claimant shall provide a POA to lawyers having right of audience before
the UAE courts. Please also note the POA shall be presented in original and no copies will be accepted by
the Courts. The UAE are not a party to the 1952 so if the POA is executed abroad, it shall be notarised in the
foreign country and then attested by the relevant Ministry of Foreign Affairs of the country of execution and
by the UAE Embassy in that country. The POA so legalised will then need further attestation in the UAE by
the Ministry of Foreign Affairs and Ministry of Justice, along with translation into Arabic by a certified legal
translator. This could be a lengthy process and in case of urgency, these procedures are often an impedi-
ment to complete the arrest process.
313
As an absolute minimum, to file an arrest application in the UAE, the Court must be provided with the fo-
llowing documents as evidence of the prima facie claim
(a) a notarised and legalised POA;
(b) all the relevant documents indicating the debt together with Arabic translations by a certified legal trans-
lator;
(c) evidence that the ship is owned by the debtor or is a sister vessel, if applicable; and
(d) payment of the appropriate Court fees, levied as a percentage of the claim (3.75%) but capped at a total
of AED 15,000.
No other documents are necessary, although it may be good practice to also provide evidence that the
vessel is in territorial waters, and only the POA is required to be notarised/legalised. It has to be stressed
however that all documents need to be translated into Arabic by a certified legal translator.
There are no provision for filing electronically, thus documents have to be physically presented to the court.
Further, apart from the POA, copies of the documents can be filed, subject however to the possibility for the
respondents to request the claimant to provide the originals.
Once the arrest order is granted, the claimant shall mandatorily file substantive proceedings (i.e. proceedings
on merits) within eight days of an order, failing which the arrest will lapse. Jurisdiction over the substantive
claim is regulated by Article 122 of the Maritime Code, which – in addition to the circumstances set out in
the procedural laws of the UAE – provides for jurisdiction of the civil court granting the arrest on the subject
matter of the claim, regardless of whether the vessel flies the UAE flag, if:
(a) the claimant’s usual address or main office is in the UAE;
(b) the maritime claim originated in the UAE;
(c) the maritime claim arose during the voyage upon which the vessel was arrested;
(d) the maritime claim arose out of a collision or assistance over which the court has jurisdiction; and
(e) the claim is secured by a maritime mortgage over the arrested vessel.
Once the arrest is granted the aspect of jurisdiction can be argued at the scheduled court hearing and a
decision and interpretation of the law rests with the court alone, however the UAE Courts tends to have
an exorbitant jurisdiction and is thus unlikely they will decline jurisdiction on the merits making the arrest
order lapse.

Article 118(2) of the Maritime Code stipulates that the Court shall cancel the arrest upon the presentation
of a guarantee or other security sufficient to satisfy the debt. Please note in this respect that the provision
of security under UAE law does not amount to an admission of liability nor does it deny the shipowner his
right to limit liability.
If security cannot be provided then the shipowner’s only other recourse will be to successfully resist the claim
and obtain release of the ship but this will obviously result in a longer period of non-use of the arrested ship.
It should be noted that the ship will not automatically be released, regardless of provision of security, if the
arrest relates to a disputeregarding the ownership of a ship or the possession, use or rights to profits arising
from it. In such an instance, the Court has the discretion to order that, upon provision of security, a third
party management company take control of the ship so that the owner can make commercial use of the ship
but she will legally remain under arrest and under the control of a neutral third party.
Once the Court has issued its order to release the vessel (which is normally in the form of a letter), copies
must be made and served as soon as possible on the concerned authorities, which normally are the Harbour
Master, the Coast Guard and the relevant maritime authority.

There are three types of security which are commonly accepted by the Courts for a maritime debt, namely
cash or a managers cheque deposited into Court ora bank guarantee from a UAE domiciled bank. A party
may also offer alternative assets as security in lieu of the vessel.
Although the Maritime Code states that security for a maritime debt will be “reasonable”, the Courts in prac-
tice only accept security equivalent to the full value of the claim, which is not always a reasonably calculated
claim.

No.
314
Although the wording of Article 118(2) is broad, a Club letter of undertaking (Club LOU) is not recognized
in the UAE despite Club LOUs being considered good security in many jurisdictions. This position (similarly
to a bank guarantee which needs to be issued by a bank domiciled in the UAE) is based on the fact that the
P&I Clubs are not domiciled in the UAE,and therefore Courts are reluctant to accept security which has no
value beyond the reputation of a P&I Club domiciled in a foreign jurisdiction.
It is however obviously possible for the parties to agree on acceptance of a Club LOU, in which case the
Courts will not be involved and the Claimants will need to approach the Court to withdraw the arrest upon
receipt of the LOU.

It is usual for the ship to be released the same day or the next working day from issuance of the Court’s order,
although much does depend on the timing of receipt of the release order. In our experience we have seen
delay where the release order has been granted in the afternoon or too close to the weekend.

Once the party whose vessel has been arrested has been informed and notified of the arrest they will be
able to register a grievance/objection to the arrest. This process is treated entirely separately from the main
proceedings and is dealt with under the Civil Procedure Code. The grievance will seek to challenge the
correctness of the procedure and/or facts of the arrest pursuant to the Maritime Code.
23. Which period of time will be granted by the Courts in order for the claimants to take legal action on the
merits?
As mentioned above the claimants have eight days to file the substantive suit after the arrest is granted.

There is no provision within the law claiming for a wrongful arrest. The wronged party may not claim dama-
ges unless he can show that the application for arrest was (i) malicious, in bad faith and with the intention
to cause damages, or (ii) insignificant in comparison with the damage caused to the owner of the vessel,
conditions which are extremely difficult to prove. So far there is no history of any claim for a wrongful arrest
in the UAE.
There is no provision in this sense in the UAE legal system, and the UAE Courts are not generally inclined to
do so, hence it may prove very difficult to pierce or lift the corporate veil.
A pendente lite injunction is not possible if a vessel is arrested and proceedings are ongoing, unless the
respondents consent to such sale. If however the claimants are unsuccessful in making good their damages
pursuant to their claim from the defendants and have a favourable judgement from the court, then the
Maritime Code contains provision for the judicial sale of the vessel.
*Jasamin Fichte started her career as a maritime lawyer in international law firms in Hamburg and London. Prior to founding Fichte & Co
she also worked at the leading Lloyd’s of London insurance brokerage firm as legal counsel for Middle East, establishing an excellent
network within the maritime and trading community and handling huge amounts of marine insurance claims, from salvage, collisions, wreck
removal to cargo claims and personal injury. This gained her the reputation as one of the most experienced marine experts in the region
and she is a regular speaker at conferences and contributes regularly to legal magazines. By opening Fichte & Co in 2005 Jasamin had
the opportunity to look outside the legal box: if a lawyer understands the business side of a transaction it is her and it is for a reason that
she has been counted amongst the 20 top lawyers in the Gulf. Jasamin is fluent in English and German.
*Alessandro Tricoli specializes in ship finance, ship sale & purchase, construction and conversion and has acted for owners, yards and
banks alike in contentious and non-contentious matters relating to ship building and ship finance contracts.
Alessandro’s broad practice further encompasses many areas of the firm’s contentious work, with a particular emphasis on charterparty
and cargo disputes in which he advises a number of the firm’s shipping clients and P&I Clubs, allowing him to deal with local counsel in
different jurisdictions as well as drafting counter expert reports for the UAE Courts.
Before joining Fichte & Co Alessandro practiced in Italy with a top-tier insurance law firm, during which time he also assisted the Chair
of Maritime Law at the University of Bologna. He then moved to the UK to enhance his knowledge of Maritime Law at the University of
Southampton and gained international work experience in London. Alessandro is fluent in English and Italian.
315
SHIP ARREST IN UKRAINE (Questions 1 to 9)
By Arthur Nitsevych & Oleksandr Chebotarenko*
INTERLEGAL Law firm
nitsevych@interlegal.com.ua
www.interlegal.com.ua
24B, Genuezskaya str,
Odessa, 65009
Tel/Fax: +38 (0482) 337528 / 29

Ship arrest in Ukraine is not simple though relatively inexpensive. The practice of ship arrest
is rather wide, especially in the ports of Big Odessa (Odessa, Ilyichevsk, and Yuzhny). On the
7-th of September 2011 Ukraine joined the International Convention for the Unification of
Certain Rules Relating to the Arrest of Sea-Going Ships, 1952. On the 16-th of May 2012 the
Convention took effect for Ukraine.
Previously, the matters of ship arrest were governed almost exclusively by the Merchant Ship-
ping Code, which stipulated the possibility of the arrest, but did not set out the procedural
rules. Thus the procedure for arresting a ship was governed by the common regulations of
national procedural law. Arrests of ships were usually realized by the attachment of bunker
fuel as security for the commercial suit or as a precautionary measure (pre-trial attachment),
in which case the petition on arrest had to be followed by the filing of a lawsuit on the merits
with the same court which imposed the arrest.
In order to implement the Convention into national law, Ukraine adopted amendments to
the Commercial Procedural Code and the Civil Procedural Code. Now, matters involving ship
arrest are subject to the competence of the relevant local commercial court or the court of
general jurisdiction at the port of registration of the ship or the port of ship’s call. However,
Ukrainian commercial procedure exists only in the form of adversarial proceedings, meaning
that a person with a maritime claim must initiate an action in a Ukrainian court and then
apply for the arrest within the framework of such proceedings.
Brussels convention covers the situations where the arrest is being imposed by one court
and the case on the merits is being heard by another court. This concept is not peculiar to
Ukrainian legislation; therefore, in most cases the arrest of the ship must be followed by an
action on the merits in a Ukrainian court.
The legislation provides that the Ukrainian courts may hear a case on the merits if the de-
fendant has movable or immovable property in the territory of Ukraine. A ship calling at a
Ukrainian port may act as such property, but in practice it may be difficult to arrest the ship
under the Convention since the Ukrainian court may declare a lack of jurisdiction, particu-
larly where the contract giving rise to a maritime claim explicitly provides for commercial
arbitration outside Ukraine. Court practice is not uniform, and generally the courts tend to
avoid disputes involving complicated issues of jurisdiction. Under such conditions, the prac-
tice remains rather controversial.
The International Convention for the Unification of Certain Rules Relating to the Arrest of
316
Sea-Going Ships (Brussels, May 10, 1952) is the basic Convention. Also Ukraine adhered
to the International Convention on Maritime Liens and Mortgages 1993 on 22 November
2002.
There are many ways to arrest a ship in a Ukrainian port. As a rule vessels are arrested in
Ukraine by means of:
a) preliminary arrest in security of a maritime claim pursuant to the order of the Court/ Com-
mercial court;
b) arrest within the frame of enforcement of Court or arbitration award in accordance with
national legislation;
c) arrest of a ship under a criminal matter.
Commercial courts and courts of general jurisdiction are the state courts which exercise
jurisdiction over maritime disputes. The Maritime Arbitration Commission at the Chamber of
Commerce and Industry of Ukraine is a domestic arbitral institution with a panel of arbitra-
tors specializing in maritime arbitration.
These measures are similar to saisie conservatoire or freezing order.
In Ukraine the ship, being the debtor’s property, can be arrested regardless whether claims
are maritime or not. Nevertheless, according to the maritime law of Ukraine the vessel may
be arrested only upon at least one of the following conditions:
(i) a claim referred to the category of privileged claims, particularly:
•claims arising out of labour relations, claims for recovering damage inflicted by injury, other
impairment of health or death;
•claims arising out of nuclear damage and maritime environment pollution as well as elimi-
nation of said pollution consequences;
•claims regarding port and channel dues;
•claims regarding salvage and payment of general average contribution;
•claims for reimbursement of losses resulting from collision of vessels or from other sea ca-
sualty, or from damage to port facilities and other property located in the port as well as to
navigational aids;
•claims for reimbursement of losses related to cargo or baggage;
(ii) a claim based upon the vessel’s registered mortgage;
(iii) claim referring to the rights of ownership or possession of a vessel;
(iv) a claim not indicated hereinabove and referring to the person that is the vessel owner by
the moment of origination of the said claim and is responsible for this claim by the moment
of starting a procedure connected with vessel’s arrest;
(v) charterer of the vessel on bareboat charter is liable for the said claim and is the vessel’s
bareboat charterer or her owner by the moment of starting a procedure connected with
vessel’s arrest.
It is possible to arrest a ship irrespectively of her flag in Ukraine.
Ukrainian legislation recognizes jurisdiction in personam and does not support the action in
rem, therefore it is impossible to bring a suit in rem against the vessel to satisfy debts arising
from the operation or use of the vessel, by the person other than the owner.
Associated vessels can be arrested if by the moment of initiating the arrest procedure they
were property of a person liable for the maritime claim and who was the proprietor/owner
of the vessel to which the said claim has arisen.
317
Associated vessels can be arrested if by the moment of initiating the arrest procedure they
were property of a person liable for the maritime claim and who was the charterer of her on
bareboat, time or voyage charter basis. The exceptions to this rule are claims with regard to
ownership or possession of vessels.
*Arthur Nitsevych is a Partner of “Interlegal” law firm. Membership: LMAA (London Maritime Arbitrators Association); IBA (International Bar
Association); SCMA (Singapore Chamber of Maritime Arbitration);The Nautical Institute of the United Kingdom; EMLO (European Maritime
Law Organization). Chairman of the Nautical Institute of Ukraine, Member of the Board Lawyers of Ukraine in Odessa Region, solicitor
of the Odessa City Bar Association.Mr. Arthur Nitsevych is practicing law since 1992 specializing in Shipping, Transport and Logistics,
Transactions and Investments. Arthur Nitsevych is the Head of organization Committee of the Annual International conference “Practice of
Maritime business: sharing experience” (2005-2011) and Maritime Days in Odessa 2012-2014, the President of Nautical Institute, Ukraine.
He conducted numerous seminars and legal trainings at national law schools and international conferences remaining the author of more
than 90 articles.
“Interlegal”, celebrating 20 years of practice, is a top listed Ukrainian law firm focused on Transport, Shipping and Trade. The company
employs 20 lawyers headquartered in Odessa, Ukraine with its offices in Turkey and Georgia.
*Mr. Oleksandr Chebotarenko is a Senior Lawyer in “Interlegal” Law firm, a lecturer, member of the Ukrainian Bar Association;
Transport,Shipping & International trade Law Expert. He focuses on business improvement and corporate development of the maritime
and transport industry mostly. He has 20 years experience as transport & forwarding companies’ legal advisor regarding business planning
of maritime and transport systems including multimodal, ports and terminals all over Ukraine. Amongst his clients there are also P&I Clubs,
foreign law firms and commercial banks. Mr. Chebotarenko is a certified attorney-at-law (since 1997). He is Member of the Bar Council of
the Odessa region, Honorary Member of the “Ukrainian Container Lines Association”, and Associated member of the Nautical Institute of
Ukraine. Mr. Oleksandr is the author of numerous articles in Ukrainian & international professional publications.
318
SHIP ARREST IN UKRAINE (Questions 10 to 26)
By Vagif Mallayev*, Senior Partner
LEXCELLENCE
v.mallayev@lexcellence.com.ua
www.lexcellence.com.ua
Business Center Morskoy-2, 11
Polskiy spusk, 9-th Floor, office #5, 65026 Odessa
Tel : +38 048 737 7931
Fax: +38 048 737 7932

The Courts may require counter-security as a prerequisite for arrest of a ship, but in practice it happens
rarely. The better evidences are arranged and presented with the claim to the court the more chances
to avoid the payment of counter-security.
There is no procedural difference in respect to arresting a ship for maritime claim and a maritime lien.
Yes, Ukraine ratified the International Convention on Maritime Liens and Mortgages (Geneva, 1993)
on 22.11.2002.
law firm?
Two-three business days will be required in order to arrest a ship.
No, we do not need a POA, Ukrainian advocates may represent claimant’s interests in a court and
the State Enforcement Service of Ukraine (bailiff service) on basis of an Advocate’s Warrant being
submitted along with extract from the Legal Agreement certified by the advocate and by his Client.
We need all documents relating to the claim, which are in possession of the claimant, - the presence
of the written evidences may help to avoid a payment of counter-security to the Court.
The Court may require an original or its notarized and legalized copy of any document the plaintiff
referred to in his claim.
It is worth noting that Courts very formalize the issue of acceptance of evidences. Written evidences
are welcomed.
We recommend preparing most important written evidences (contracts, BLs, charter parties, survey
reports etc.) in original or its notarized and legalized (apostilled) copies. Other copies can be certified
by the claimant’s corporate seal and by signature of authorized officer. In case your Ukrainian advoca-
te received a document in original he may hold the original in his office and the certified copy that is
arranged by him will be served to the court. Documents cannot be filled electronically.
Yes. Unless a forum had been chosen by parties to consider the substantive claim in a foreign juris-
diction, the case may proceed on its merits in Ukraine as per the Art 7 of the Ship Arrest Convention
(1952), and in some cases when domestic law otherwise gives the local Court jurisdiction, e.g.: (a) any
claims if one of defendants is domiciled in Ukraine; (b) proprietary claims relating to the possession of
a ship, title to or ownership of a ship or a share in a ship; (c) claims arising out of employment contract
with ship’s crew if a claimant is domiciled in Ukraine; (d)claims arising out of loss of life or personal
injury to a person who is domiciled in Ukraine or in case the accident took place in Ukraine; (e) claims
arising out of damage caused in Ukraine to property of private persons or legal entities during the
operation of a ship; (f) claims arising out of any contract which specified a place of its execution or has
319
to be executed in Ukraine only.

There are two options: (i) a court, which arrested a ship may lift the arrest itself; (ii) a court of appeals
may dismiss an order of arrest that was issued by a court of first instance.

Best security that would be accepted by Ukrainian courts is a bank guarantee issued by a Ukrainian
bank. It is also possible to propose to a court a deposit arranged with a Ukrainian bank or real estate
property that is situated on the territory of Ukraine.

Ukrainian courts require that a security covers all amount demanded by claimant in his statement of
claim submitted to the court.

No Ukrainian courts do not accept LOU of P&I Clubs.

In case of option (i) mentioned in para 17 above: 3-4 days.
In case of option (ii) mentioned in para 17 above: 20-30 days.

Yes, you may write a reasoned petition to judge who arrested a vessel, or you may appeal his decision
to court of appeals within 5 days.
on the merits?
Civil proceedings: the Code does not provide a certain time – subject to a Court’s decision.
Commercial proceedings: there is no special reference to the ship arrest procedure, but generally, pur-
suant to the Art. 43-3 (3) of the Commercial Procedure Code of Ukraine a claimant must commence
legal actions on the merits within 5 (five) days from the day of obtaining the arrest order.

Yes, Ukrainian Courts on request of defendant acknowledge a wrongful arrest in case of:
(a) The arrest is cancelled by decision of a Court.
(b) The claimant fails to commence proceedings on the merits within the given time.
(c) The claimant recalled his claim.
(d) The claimant fails in his legal action on the merits. In case a wrongful arrest is acknowledged de-
fendant may claim to an initiator of arrest to cover all losses and damages incurred.
No, Ukrainian Courts do not acknowledge the pierce and lift of the corporate veil. The basic principle
of civil law is that a shareholder or director/officers of a legal entity could not be held liable for any
debts or liabilities of the corporation.
No. A vessel’s auction will take place only after the end of Court proceeding as an enforcement of the
final Court judgment entered into force.
*Vagif is a Head of the firm’s Shipping, International Trade and Insurance arm. Vagif has been involved in a wide range of both dry and
wet shipping disputes on the side of P&I Clubs and Owners. His broad experience in dry shipping includes charterparty, Bill of Lading, ship
building, and he also has experience of handling claims in the wet side: collision, general average, personal injury/loss of life and pollution.
Vagif is attorney at law, member of Odessa Bar Association, Ukrainian National Bar Association and International Bar Association. Before
practice of law his career includes 7 years in insurance sector starting from executive officer to chairman of the Board of Ostra Insurance
company. He graduated the faculty of law (LLB) of Mechnikov’s Odessa National University in Odessa, Ukraine; the faculty of psychology
(LLM) of the International Academy for Psychology in Sant-Petersburg, Russia.
320
SHIP ARREST IN USA
By George M. Chalos*
CHALOS & CO, P.C. – INTERNATIONAL LAW FIRM
gmc@chaloslaw.com
www.chaloslaw.com
55 Hamilton Avenue, Oyster Bay, New York 11771
Tel: +1 516 714 4300
Fax: +1 516 750 9051
7210 Tickner Street, Houston, TX, 77055
Tel: + 1 713 574 9582
Fax: + 1 866 702 4577
2030 Douglas Road, Suite 117, Coral Gables, Florida 33134
Tel: + 1 305 377 3700
Fax: + 1 866 702 4577

The Federal Rules of Civil Procedure (F.R.C.P.)’s Supplemental Rules for Certain Admiralty and
Maritime Claims (hereinafter “the Supplemental Rules”) govern the procedure for arresting
or attaching a vessel in the United States. The Supplemental Rules apply to all admiralty and
maritime claims within the meaning of F.R.C.P. 9(h). Rule C of the Supplemental Rules (herei-
nafter “Rule C”) is the procedural mechanism used to arrest property (i.e. – a vessel) that is
subject to a maritime lien or other U.S. statute that creates an in rem cause of action. Once
the arresting party has obtained a warrant of arrest from the Court, the U.S. Marshal Service
will serve the Court’s warrant on the vessel to affect the arrest. Rule C(3)(b) provides that
only the marshal may serve the warrant to seize the vessel.
None.
No.
Supplemental Rule B (hereinafter “Rule B”) provides for the pre-judgment attachment of a
defendant’s property (including a vessel) if the claimant has an in personam maritime claim
against the owner of the vessel, provided that the defendant/owner cannot be “found” in
the district where the attachment is sought.
Under the applicable U.S. law, a vessel may either be arrested (under Rule C) or attached (un-
der Rule B).
• Rule C arrest: Procedural mechanism used to arrest property subject to maritime lien or
where U.S. statute provides for maritime action in rem
o Property arrested must be related to the Plaintiff’s claim
o Maritime lien claims include: ship repairs; ship supplies; towage; use of dry dock
or maritime railway or other necessities to any ship; crew wages; tort claims arising
from a collision; personal injury claims (excluding Jones Act claims against emplo-
yer); wharfage; stevedoring; cargo damage/loss; certain maritime contracts (e.g.
– breach of charter party); preferred ship mortgages; salvage; claims for maritime
pollution.
• Rule B attachment: Allows a party to obtain quasi in rem jurisdiction over a defendant’s
property for any debt arising out of a maritime claim, when the defendant “cannot be found
within the district.”
o The property attached may be unrelated to the events giving rise to the claim,
321
and the Plaintiff need not have a maritime lien on the vessel.
o Maritime claims include maritime torts and any claim arising from breach of a
“maritime contract” such as a charter party or bill of lading. Under U.S. law, “mariti-
me contracts” generally do not include shipbuilding contracts; vessel sale and pur-
chase contracts; brokerage or other preliminary service contracts; or commodities
sale and purchase contracts.
Yes.
Yes, except that you cannot arrest a vessel owned by a government or other foreign sove-
reign, as per the Foreign Sovereign Immunities Act.
Arrest of sister ships/associated ships is not possible, unless you can show an alter-ego rela-
tionship or other common ownership of assets.
A Rule C arrest can only be made for an in rem claim, as an arrest is made against the ship,
not its owner or charterer.
However, a Rule B attachment can only be sustained where there is a valid prima facie claim
against a party in personam (including the bareboat or time charterer).
U.S. Courts do not require countersecurity in order to arrest or attach a ship.
However, Rule E(7) provides that when a Defendant who has posted security for damages
in an action asserts a counterclaim arising from the same transaction, a Plaintiff must post
countersecurity in the amount of damages demanded in the counterclaim (unless the Court,
for good cause shown, directs otherwise).
Additionally, Rule E(2)(b) allows the Court to require any party to post security, in an amount
directed by the Court, to pay all costs and expenses that shall be awarded against the party
by any interlocutory order, final judgment, or on appeal.
Under the applicable U.S. law, a vessel may either be arrested under Rule C (which requires
a maritime lien) or attached under Rule B (which simply requires a maritime claim).
• Rule C: Procedural mechanism used to arrest property subject to maritime lien or where
U.S. statute provides for maritime action in rem
o The property arrested must be related to the Plaintiff’s claim
o The U.S. Marshal must be engaged to arrest the property
• Rule B: Allows a party to obtain quasi in rem jurisdiction over a defendant’s property for
any debt arising out of a maritime claim, when the defendant “cannot be found within the
district.”
o Property attached may be unrelated to the events giving rise to the claim, and the
Plaintiff need not have a maritime lien on the vessel
o A special process server may be appointed by order of the Court) to attach the
property, instead of a U.S. Marshal
Yes.
to your law firm?
Ordinarily, an attachment and/or arrest order can be obtained within a few hours, when
filing an emergent motion. Rule C(3)(a)(ii) and Rule B(1)(c) require the Clerk to issue the
summons and warrant for arrest of the vessel or process of attachment and garnishment,
respectively, where the Claimant’s attorney certifies that exigent circumstances exist that
make court review impracticable. The Claimant has the burden of demonstrating at a post-
322
arrest/post-attachment hearing that exigent circumstances existed.
A POA is not required to arrest or attach a vessel. The documents to be submitted to U.S.
Courts vary depending on the type of proceeding commenced and the U.S. jurisdiction in
which the arrest or attachment is sought.
1. For Both Rule C arrests and Rule B attachments:
• Verified Complaint asserting that the Claimant’s underlying claim is an admiralty/maritime
claim within the meaning of Rule 9(H) of the Federal Rules of Civil Procedure, accompanied
by supporting claim documentation
• Summons
• Agreement of Indemnity, agreeing to hold the Marshal harmless for damages if the arrest/
attachment is later found to have been wrongful
• Form USM-285/U.S. Marshal Service Process Receipt and Return
• A bank or certified check (for an amount which varies by jurisdiction) as a deposit to cover
insurance, guard services, and other costs related to arresting/maintaining the vessel
• Motion for appointment of substitute custodian , with supporting declaration of proposed
substitute custodian and proposed order (not mandatory in some U.S. jurisdictions) – may
reduces the costs that must be deposited with the Marshal
2. For Rule C Arrests: To commence a Rule C proceeding, the following additional docu-
ments are required:
• Affidavit containing the grounds for arrest
• Motion for Issuance of Warrant for Arrest
• Proposed Order for Issuance of Warrant Arrest – authorizing Clerk of the Court to issue a
Warrant of Arrest providing the U.S. Marshal with authority to arrest the vessel
• Motion to Permit Vessel to Continue Cargo Operations and to Shift Berths (not mandatory)
– requests authorization for the vessel to continue cargo operations during the period of
arrest and to move within the district
• Proposed Order Allowing Vessel to Shift Between Berths – allows the Marshal or substitute
custodian to move the vessel without petitioning the Court
• Warrant of Arrest
• Notice of Arrest – accompanies Complaint and Warrant of Arrest when the Marshal phy-
sically arrests the vessel
3. For Rule B Attachments: To commence a Rule B proceeding, the following additional do-
cuments are required:
• Affidavit certifying that the defendant cannot be found within the district
• Application for Order issuing writ of maritime attachment
• Proposed Order authorizing writ of maritime attachment
• Writ of maritime attachment, which is issued to the Marshal and provides authority to
attach the defendant’s property located in the district
• Notice of Attachment (to accompany writ of maritime attachment)
The Complaint must be verified by the Claimant, but if the Claimant resides outside the dis-
trict where the arrest application is filed, the Complaint may be verified by the Claimants’
attorneys. This verification must be notarized.
The original documents required by each Court and the documents which may be electro-
nically filed vary by jurisdiction. Most Courts require an original signature on all initiating
documents, but require electronic filing of subsequent documents. Other Courts permit a
claimant to commence an action by filing the Complaint and all related documents electro-
nically.
Yes. Once a vessel has been attached/arrested, U.S. courts will assume quasi in rem or in rem
jurisdiction, respectively, up to the amount of the claim. Accordingly, the courts will have
jurisdiction over the substantive claim, unless a forum selection clause requires that the claim
be brought in a foreign jurisdiction.
323
A ship may be released voluntarily by the Plaintiff, if a settlement is reached and/or if the ves-
sel interests post substitute security in place of the vessel. In such cases, depending on the
terms of the Order authorising the arrest, the vessel may be released without a further Court
Order upon the Plaintiff’s counsel providing notice in writing to the U.S. Marshal, the subs-
titute custodian (if one has been appointed), and the Court that the vessel may be released
from arrest. Additionally, the Vessel may be released by Court Order if, after conducting a
post-seizure hearing pursuant to Rule E(4)(f) of the Supplemental Admiralty Rules, the Court
determines that the arrest was improper and should be vacated.
Rule E(5) of the Supplemental Admiralty Rules permits the owner of a vessel to secure the
release of the vessel by posting a bond or stipulating to another form of security, such as
cash security or a Club Letter of Undertaking. In the event that the parties cannot reach an
agreement as to the form or quantum of the substitute security, Rule E(5)(a) provides that
the Court may order the posting of a bond and fix the principal sum of the bond. Although
other forms of security can be agreed between the plaintiff and the vessel interests, the
Court may only require the plaintiff to accept a bond a substitute security.
Yes. Rule E(5) allows a vessel to be released upon the posting of substitute security at an
amount sufficient to cover the amount of the plaintiff’s claim, fairly stated with accrued inter-
est (at six (6) cents per annum) and costs; provided that the quantum of the bond does not
exceed (i) twice the amount of the plaintiff’s claim; or (ii) the value of the property on due
appraisement, whichever is smaller. Rule E(5)(a) provides that interest should be set at that
rate of six percent (6%) per annum.
Although an arresting plaintiff may agree to accept a P&I LOU as substitute security to lift
an arrest, the Court cannot require the plaintiff to accept this form of security in lieu of the
arrest of the Vessel.
21.How long does it take to release the ship?
The vessel will typically be released from arrest and permitted to continue on her voyage
within hours of Plaintiff’s counsel providing notice to the U.S. Marshal and/or substitute cus-
todian that the ship may be released.
Rule E(4)(f) of the Supplemental Admiralty Rules provides that any person claiming an inter-
est in arrested or attached property is entitled to a prompt post-seizure hearing, where the
plaintiff will be required to show cause why the arrest or attachment should not be vacated.
While the time frame in which this hearing must be held varies pursuant to the Local Rules of
the jurisdiction in which the vessel is arrested, most Courts will hold the “Rule E(4)(f)” hearing
within seven (7) days following the arrest and the challenge to same.
Although there is no set period of time in which a Claimant that has caused a vessel to be
attached/arrested must commence substantive proceedings, the answer to this question will
depend largely on the judge assigned to the case. Many judges require that such procee-
dings be commenced as soon as possible.
Yes; however, an arrest will only be set aside as wrongful in exceptional circumstances (i.e. –
if the Defendant shows that the claimant acted with bad faith, malice or gross negligence).
Yes. In arresting a vessel under Rule C, a Plaintiff need not pierce the corporate veil because
the action is in rem against the vessel. However, in a Rule B attachment action, the corpora-
te veil may be pierced. Although there are no mandatory requirements, the U.S. Courts con
324
sider ten (10) factors in determining whether the corporate veil may be pierced, including:
disregard of corporate formalities; inadequate capitalization; intermingling of funds; overlap
in ownership, officers, directors, and personnel; common office space, address & telephone
numbers of corporate entities; the degree of discretion shown by the allegedly domina-
ted corporation; whether the dealings between the entities are at arms length; whether
the corporations are treated as independent profit centers; payment or guarantee of the
corporation’s debt by the dominating entity; and intermingling of property between entities.
Rule E(9) authorizes a Court to Order the marshal to conduct an interlocutory sale of a vessel
if the property is perishable or subject to deterioration, decay, or injury by being detained in
custody pending the action; the expense of keeping the property is excessive or dispropor-
tionate; or there is an unreasonable delay in securing the release of the property. The time
frame for conducting the interlocutory sale of a vessel varies by jurisdiction/judge.
*George M. Chalos is the founding member of Chalos & Co, P.C.-International Law Firm and is experienced in all facets of maritime civil
and criminal litigation. Mr. Chalos regularly acts as lead counsel in high profile Federal and State court matters throughout the United
States, and has assisted in presenting claims before the London High Court of Justice. Additionally, Mr. Chalos is recognized as a leading
attorney with respect to Marpol and other environmental pollution matters, including and particularly the defense of criminal pollution cases,
as well as the complex third-party litigation arising from a pollution incident. Mr. Chalos is a published author with respect to the United
States’ vessel initiative program targeting suspected Marpol violators for criminal prosecution, as well as the presentation of claims to the
Oil Spill Liability Trust Fund. For more information about vessel arrests or other questions of U.S. law, please feel free to contact Mr. Chalos.
325
SHIP ARREST IN VENEZUELA
By Jose Alfredo Sabatino Pizzolante*
SABATINO PIZZOLANTE Maritime & Commercial Attorneys
jose.sabatino@sabatinop.com
www.sabatinop.com
CC Inversiones Pareca, Piso 2, Ofc. 208/209
Av. Salom, Urb. Cumboto Sur, 2050 Puerto Cabello
Tel: +58 242 3641026
Fax: +58 242 3640998

Rules related to the arrest of ships in Venezuela have significantly improved with the enactment
of the Law on Maritime Commerce (LMC) published in the Official Gazette No.38,351 dated 5th
January 2006. To some extent the notion of an action in rem has been included in the LMC, in
the sense that actions can be exercised against the ship and her Master, without being neces-
sary to make mention of the owners (art. 15 LMC), whereas the writ can be served by handing
it over to anyone onboard the ship, and even by fixing one cartel in the ship in the presence of
two (2) witnesses, if there is no anybody onboard (art.110 LMC). The arrest or the prohibition
from sailing will be carried out by notification effected by the court to the Port Captaincy where
the vessel is found. In urgent cases, the legislation allows to inform prohibition from sailing by
electronic means, as prescribed by article 104 of the LMC.

Arrest of ships under Venezuelan law is governed by the provisions contained within the LMC,
incorporating very much the 1999 International Convention of Arrest of Ships.

Together with the exercise of the arrest of a ship in the terms allowed by law or “preventive
embargo”, art. 103 of the LMC includes another mechanism for guarantee of a maritime claim
according to which the holder of a maritime claim in respect of a ship may request from the
competent court a “precautionary measure of prohibition from sailing”, in order to guarantee
the existing maritime claim. The court shall agree on the petition without mayor formality, pro-
vided antecedents are submitted from which it can be inferred presumption of the right that
is claimed. If these antecedents are not sufficient, the court may request a guarantee to decree
this precautionary measure.

Following a ruling by the Supreme Court of Justice in 2004 it has been held that the arrest or
preventive embargo does only proceed in the event of maritime claims as listed by the law. In
case of credits different than those regarded as maritime claims then the prohibition from sai-
ling is available pursuant the rules of the Civil Procedure Code.

Article 93 of the LMC contains the list of maritime claims giving rise to an arrest (embargo
preventivo) of ship: a.- Loss or damage caused by the operation of the ship; b.- Loss of life or
personal injury occurring, whether on land or on water, in direct connection with the ope-
ration of the ship; c.¬Salvage operations or any salvage agreement, including, if applicable,
special compensation relating to salvage operations in respect of a ship which by itself or its
cargo threatened damage to the environment; d.- Damage or threat of damage caused by the
ship to the environment, coastline or related interests; measures taken to prevent, minimize, or
remove such damage; compensation for such damage; costs for reasonable measures of reins-
tatement of the environment actually undertaken or to be undertaken; loss incurred or likely to
be incurred by third parties in connection with such damage; and damage, costs, or loss of a
similar nature; e.- Costs or expenses relating to the raising, removal, recovery, destruction or the
rendering armless of a ship which is sunk, wrecked, stranded or abandoned, including anything
that is or has been on board such ship, and costs or expenses relating to the preservation of
an abandoned ship and maintenance of its crew; f.- Any agreement relating to the use or hire
326
of the ship, whether contained in a charter party or otherwise; g.- Any agreement relating to
the carriage of goods or passengers on board the ship, whether contained in a charter party
or otherwise; h.- Loss of or damage to or in connection with goods (including luggage) carried
on board the ship; i.- General average; j.- Towage; k.- Boating (Lanchaje); l.- Pilotage; m.- Goods,
materials, provisions, bunkers, equipment (including containers) supplied or services rendered
to the ship for its operation, management, preservation or maintenance; n.- Construction, re-
construction, repair, converting or equipping of the ship; o.- Port, canal, dock, harbor and other
waterway dues and charges; p.- 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, including costs
of repatriation and social insurance contributions payable on their behalf; q.- Disbursements
incurred on behalf of the ship or its owners; r.- Insurance premiums (including mutual insuran-
ce calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer;
s.- Any commissions, brokerages or agency fees payable in respect of the ship by or on behalf
of the shipowner or demise charterer; t.- Any dispute as to ownership or possession of the ship;
u.- Any dispute between co¬owners of the ship as to the employment or earnings of the ship;
and, v.- A mortgage or a “hypothèque” or a charge of the same nature on the ship.

Yes. As per art. 13 of the LMC domestic maritime courts are competent to know of proceedings
involving a foreign flag ship in cases where according to domestic legislation it can be arrested,
unless there is an arbitration agreement or attributing competence to another jurisdiction, in
which case the arrest will be granted for the purposes of obtaining a guarantee to execute the
eventual arbitration award or judicial decision.

Yes, it is possible to arrest a ship irrespective of the debtor being national or foreign.
The provisions set by the LMC allows the arrest of the ship in respect of which the maritime
claim arose, as well as the arrest of a sister ship, but not one in associated ownership.

As per art. 95 of the LMC the arrest of the bareboat ship is possible if the bareboat charterer
by the time the maritime claim arose is obliged by virtue of the relevant credit. Time-Chartered
ships, however, may be subject to a preventive measure of prohibition from sailing.

Art. 97 of the LMC states that the court as a condition to grant the arrest of the ship may request
to the claimant, the submission of a guarantee in the amount and subject to the conditions
determined by the former, for the claimant to answer for the damages that may cause as a
consequence of the arrest. Usually this guarantee may take the shape of a bond equivalent to
30% of the claim amount as a maximum legal costs, plus the double of the said claim amount.
As per art. 98 of the LMC the defendant may oppose the arrest or request the lifting of it, if in the
opinion of the court sufficient security has been provided, save in cases in which a ship has been
arrested in respect of any of the maritime claims related to ownership or co-owners disputes.
In these cases, a bond or a Letter of Undertaking issued by a reputable P&I Club can be used if
acceptable by claimants.
In practice there is no difference, other than for the purposes of the priorities in the concurrence
of credits.
The LMC has incorporated the main provisions of the 1993 Convention on Mortgages and
Maritime Liens. Consequently, the country does recognize maritime privileges or liens on a ship.
your law firm?
Petition of arrest has to be filed before the First Instance Maritime Court, and formalities can be
arranged preferably 96 hours in advance, provided needed documentation is available.
327
Power of Attorney will be needed to appear in court, together with any public or private docu-
ment, accepted invoice, charter-party, bill of lading or similar document proving the existence
of a maritime claim.
The Law on Maritime Procedures (published in the Official Gazette Extraordinary No.5,554, da-
ted 13th November 2001) allows the use of the electronic Power of Attorney; for the purposes
of submittal and admission of a lawsuit or any other petition, representation of the plaintiff may
be proved by written or electronic means, provided it is accompanied by a guarantee of 10,000
units of account; however, this must be later replaced by the formally granted POA. All suppor-
ting documentation must be submitted in original duly notarized with the Apostille formalities
as per the 1961 Hague Convention and translated into Spanish by public interpreter.
According to art. 100 of the LMC the Court granting the arrest or receiving the guarantee to
allow the release of the ship will be competent to deal with the merits, unless the parties have
validly agreed to submit the matter to arbitration or to a foreign jurisdiction.

A writing of opposition to the arrest (embargo or prohibition from sailing) must be submitted,
either before the serving of the writ or within the three days following it. An eight days period
is then opened to promote evidence, at which time the court should take a decision on the
second day. This decision is subject to appeal before the Superior Maritime Court.

Security may take the shape of a bond issued by an insurance company or a bank of recognised
solvency, as well as a cash deposit.

Procedural rules only prescribe that the security must be equivalent to 30% of the claim amount
for legal costs (interest included), plus de double of the said claim amount.

LOUs by reputable P&I Clubs can be used before the maritime courts, provided it is acceptable
to the opponent party or claimant. Even so, it is a matter of discretion for the court.

Difficult to give a precise time frame, since this may depend upon the facts of the specific case.
Bearing in mind that maritime courts work only by court days, so excluding the non working
days and weekends, the release could take not less than 13 days.

The Law on Maritime Commerce refers to the opposition as the mechanism to contest the arrest;
however, the governing provisions are prescribed by the Civil Procedural Code and some others
of the maritime legislation.
Art. 14 of the LMC states that the court shall suspend any anticipated arrest granted prior to
legal proceedings, if within the following ten (10) running days to be counted from the date
of the arrest was effected, the lawsuit is not filed. This happens when the arrest is requested by
way of petition for prohibition from sailing without filing the lawsuit with arrangement to art.
10 and 103 of the LMC. If granted the arrest or submitted the guarantee to release the ship, the
Court is not competent to deal with the merits a period of time shall be given for the lawsuit to
be brought either in the competent court or arbitration as per art. 101 of the LMC.

Eventual damages for wrongful arrest are prescribed by article 99 of the LMC, according to
328
which the court which grants the arrest of a ship, will be competent to determine the extent
of liability of the claimant, for any loss which may be incurred by the defendant as a result of
the arrest in consequence of: a) the arrest having been wrongful or unjustified; or b) excessive
security having been demanded and provided.
Although it has been accepted in some employment cases, this has had little development and
there are no precedents in the maritime field at the moment.
Art. 106 of the LMC states that after 30 continuous days following the arrest of the ship, without
the shipowner not attending to proceedings, the court at the request of the claimant, may or-
der the anticipated auction of the ship, subject to the claimant submitting sufficient guarantee,
provided the claim exceeds the 20% of the value of the ship and it is expose to ruin, obsolescen-
ce or deterioration.
*Mr. José Alfredo Sabatino Pizzolante holds a Law Degree from the University of Carabobo (Venezuela). He studied at the University of
Wales, College of Cardiff, where he obtained an MSc in Port and Shipping Administration as well as an LL.M in Maritime Law. Currently he
is a Partner of Sabatino Pizzolante Abogados Marítimos & Comerciales, a law firm specializing in Maritime, Port and Customs Law, and
a Professor at the Universidad Maritima del Caribe (Caracas). Mr. Sabatino Pizzolante has wide experience on P&I matters. He is also a
Legal Advisor to the Venezuelan Shipping Association, Vice-President of the Port and Customs Committee of the Venezuelan Association
of Maritime Law, Executive Vice-President of the Venezuelan Association of Port Law, Titular Member of the Comité Maritime International
and the Iberoamerican Institute of Maritime Law. He has extensively written on the Venezuelan maritime law subject, attending to many
international seminars and congress as speaker.
329
SHIP ARREST IN VIETNAM
By Dinh Quang Thuan*
PHUOC & PARTNERS
thuan.dinh@phuoc-partners.com
www.phuoc-partners.com
16 Floor Centec Tower, 72-74 Nguyen Thi Minh Khai Street,
District 3, Ho Chi Minh City
Tel: +84 (8) 3823 5895
Fax: +84 (8) 3823 5896

Having a long coastline, Vietnam maritime industry has played a key role in developing
national economic activities, especially when Vietnam acceded to the World Trade Orga-
nization in 2007. Maritime claims, including ship arrest claim, has unceasingly occurred in
the much more competitive maritime industry. The first claim about ship arrest took place in
early 1990’ at the request filed with the people’s court of Da Nang city, Vietnam. Since that
time, legislation covering ship arrest has increasingly developed. The vessel can be arrested
and detained until the claim is settled. Vietnam Maritime Code 1990, as amended in 2005,
Ordinance on Ship Arrest 2008 and Civil Procedure Code are the major sources of ship arrest.
To the best of our knowledge, Vietnam has not ratified any International Convention on ship
arrest even though Vietnam has been encouraged to accede to International Convention
on the Arrest of Ship Geneva, March 12, 1999.
There are the following ways to arrest ship in Vietnam:
- Filing request with civil enforcement bodies for ship arrest for the enforcement of the jud-
gment/ decision of the court or arbitration;
- Filing request with Chief of sea ports for the detainment of ship for a maximum period of 30 days;
- Filing request with the court for ship arrest during the settlement of a criminal or civil lawsuit;
- Filing with domestic arbitration tribunal for ship arrest during the settlement of an arbitra-
tion case; and
- Filing a request with a foreign court or foreign arbitration tribunal for the ship arrest as a
matter of international judicial assistance.
These measures correspond to saisie conservatoire or freezing order.
The types of claim which can give rise to a ship arrest are governed under Article 11 of
the Ordinance on Ship Arrest: Damages for the loss of life, personal injuries and other hu-
man health damage directly caused by the operation of seagoing ships; Freight, maritime
security charge, pilotage, wharfage, and other seaport dues and charges; Seagoing ship
salvage remunerations; Property losses and damage outside contract directly caused by
the operation of seagoing ships; Loss of or damage to cargoes, including luggage carried
onboard seagoing ships; General average; Towage; Pilotage; Goods, materials, food, fuels
and equipment (including containers) supplied or services provided to seagoing ships for
their operation, management, preservation and maintenance; Building, transformation, re-
construction, repair or equipping of seagoing ships; Sums of money paid on behalf of ship
owners; Insurance premiums paid by ship owners or other parties on behalf of ship owners
or bareboat charterers; Commissions or charges for brokerage or agency for seagoing ships
payable by ship owners, bareboat charterers or authorized parties; Disputes as to the title
to or ownership of seagoing ships; Disputes between co-owners of seagoing ships over the
use of these ships or earnings of these ships; Mortgage or hypothecation of seagoing ships;
330
Disputes arising from contracts of seagoing ship purchase and sale….
Yes, we can.
No, we cannot. The debtor must be the owner of the ship which is subject to arrest.
In certain instances, Ordinance on Ship Arrest allows the arrest of another ship belonging
to the same owner under Article 13.2 of the Ordinance on Ship Arrest and Article 42 of
Maritime Code. The Ordinance on Ship Arrest is silent on the arrest of ships in associated
ownership. To our experience, arrest of ships in associated ownership is possible.
Under the Ordinance on Ship Arrest, ship arrest can be applied without distinction between
Bareboat and Time-Chartered vessels.
Article 5 of the Ordinance on Ship Arrest requires the claimant to provide a valid bond or
guarantee fixed by the court which is equivalent to the possible losses or damages resulting
from wrongful arrest (if any).
11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime
lien?
Arresting a ship for a maritime claim: The arrest of ship is sought against the ship owner/
bareboat charterer of the ship related to the maritime claim. Other ships of the ship owner
can be arrested if, at the time the maritime claim arose, such party was also (a) the owner of
the ship related to the maritime claim, or (b) the bareboat charterer, time charterer or voyage
charterer of the ship related to the maritime claim.
Maritime lien: Maritime lien is sought against the ship related to the maritime claims giving
rise to the maritime lien. Maritime lien over a seagoing ship shall not be affected by a change
of owner, charterer or operator.
12. Does your country recognise maritime liens? Under which International Convention, if
any?
Yes, Vietnam recognises maritime lien in accordance with the Maritime Code of Vietnam.
to your law firm?
Usually, it may take us from 03 [three] to 05 [five] working days to arrest a ship.
Yes, we do.
All documents to be submitted to Vietnamese court in the application for the ship arrest
order which are issued by competent authorities in foreign countries, must undergo notari-
sation and/or apostille and be translated into Vietnamese in accordance with Article 8 of the
Ordinance on Ship Arrest. Documents filed electronically are not accepted.
It depends on the fact if it has the jurisdiction over the dispute under the applicable law. As
advised in questions 3, the court can issue order for ship arrest at the request of arbitration or
foreign court. In such cases, the court will not accept jurisdiction over the substantive claim.
The release procedure includes the following steps:
331
- Submission to the court of a written request for the release of the arrested ship and sup-
porting documents, in which the lawful reason for the release of the arrested ship must be
presented;
- Within 24 hours as from the receipt of the written request the court issue either the release
order or a letter presenting the reason for which the release is not granted;
- In case of a release order, the court immediately sends the order to the relevant port autho-
rity for implementation thereof;
- The director of the relevant port issues a notice for the implementation of the court’s release
order and assigns a port officer to release the ship.
Type of security to be placed for the release shall be agreed between the parties or decided
by the court. Normally, it can be a bank guarantee or a letter of undertaking (LOU) issued by
a reputable insurers listed by Vietnam’s competent authority.
Yes.
There has been no provision for the acceptance of P&I’s LOUs as sufficient to lift the arrest.
24 hours from the court receipt of a written request for the release of the arrested ship.
Yes.
With regard to loss or damage to cargo, one year from the date on which the cargo was
delivered or should have been delivered to the consignee. With regard to performance of
voyage charter parties, two years from the date on which a complainant knows or should
have known of the infringement of its interests.
With regard to damages for the death, personal injury or damage to health of a passenger
or for loss or damage to luggage, two years.
With regard to charter parties, two years from the date of termination of the charter party.
With regard to dispute over shipping agency contract, two years from the date on which
the dispute arose.
With regard to dispute over maritime brokerage contract, two years from the date on which
the dispute arose.
With regard to dispute over contracts for towage of seagoing ships, two years from the date
on which the dispute arose.
With regard to dispute over contracts for maritime salvage, two years from the termination
of the rescue operations. With regard to recovery of compensatory amount in excess of its
liability, one year from the date of payment of the compensatory amount.
With regard to general average, two years from the date of the general average occurrence.
The time taken for apportionment of general average shall not be included in this limitation
period.
With regard to marine insurance contract, two years from the date on which the dispute
arose.
Under Article 4 of the Ordinance on Ship Arrest, in the event of wrongful arrest, applicants
for the wrongful arrest shall be held responsible for the wrongful arrest. All losses or con-
sequences of an application for the wrongful arrest shall be remedied under agreement
between the involved parties. In case no agreement can be reached and a dispute arises, the
involved parties may bring the case to a court or an arbitration center for settlement.
332
In principle, shareholders of a company with limited liability shall not be personally liable for
the obligations of the company. In practice, the Vietnamese courts have not acknowledged
the piercing and lifting of the corporate veil.
An arrested ship can be put on auction in accordance with a court’s decision only in case
where the ship owner abandons the arrested ship. The timing for auctioning a ship is not
specified by laws.
*Mr. Thuan has more than 13 years of experience working for the People’s Court of Ho Chi Minh City. In March 2003, Mr. Thuan left the
Court and joined the leading firm Vilaf – Hong Duc as a key litigator of the firm for more than 5 years, before joining the then rising firm
Phuoc & Partners in October 2008, and getting promoted as the fifth partner of the firm in April 2009.
Mr. Thuan is highly regarded for his versatility as a labor, commercial, shipping, insurance, construction trial and appellate lawyer.
Not only handling dispute resolution works including litigation, Mr. Thuan also work intensively to advise clients on various legal fields
including employment and labor, maritime & shipping, insurance, contract, civil, family and other commercial issues.
Mr. Thuan has annually spoken at seminars on labor both in Vietnam and overseas.
333
APPENDIX 1
INTERNATIONAL CONVENTION
RELATING TO THE ARREST OF SEA-GOING
SHIPS, 1952
ARTICLE 1:
In this Convention the following words shall have the meanings hereby assigned to them:
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or occurring in connexion with the opera-
tion of any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by charterparty or otherwise;
(e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage carried in any ship;
(g) general average;
(h) bottomry;
(i) towage;
(J) pilotage;
(k) goods or materials wherever supplied to a ship for her operation or maintenance;
(1) construction, repair or equipment of any ship or dock charges and dues;
(m) wages of Masters, Officers, or crew;
(n) Master’s disbursements, including disbursements made by shippers, charterers or agent on
behalf of a ship or her owner;
(o ) disputes as to the title to or ownership of any ship;
(p) disputes between co-owners of any ship as to the ownership, possession, employment, or
earnings of that ship;
(q) the mortgage or hypothecation of any ship.
2. “Arrest” means the detention of a ship by judicial process to secure a maritime claim, but does
not include the seizure of a ship in execution or satisfaction of a judgment.
3. “Person” includes individuals, partnerships and bodies corporate, Governments, their De-
partments, and Public Authorities.
4. “Claimant” means a person who alleges that a maritime claim exists in his favour.
ARTICLE 2:
A ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any
of the Contracting States in respect of any maritime claim, but in respect of no other claim; but
nothing in this Convention shall be deemed to extend or restrict any right or powers vested in
any governments or their departments, public authorities, or dock or harbour authorities under
their existing domestic laws or regulations to arrest, detain or otherwise prevent the sailing of
vessels within their jurisdiction.
ARTICLE 3:
1. Subject to the provisions of paragraph. (4) of this article and of article 10, a claimant may
arrest either the particular ship in respect of which the maritime claim arose, or any other ship
which is owned by the person who was, at the time when the maritime claim arose, the owner
of the particular ship, even though the ship arrested be ready to sail; but no ship, other than
the particular ship in respect of which the claim arose, may be arrested in respect of any of the
maritime claims enumerated in article 1, (o), (p) or (q).
2. Ships shall be deemed to be in the same ownership when all the shares therein are owned
by the same person or persons.
3. A ship shall not be arrested, nor shall bail or other security be given more than once in any
one or more of the jurisdictions of any of the Contracting States in respect of the same maritime
claim by the same claimant: and, if a ship has been arrested in any of such jurisdictions, or bail or
other security has been given in such jurisdiction either to release the ship or to avoid a threate-
334
ned arrest, any subsequent arrest of the ship or of any ship in the same ownership by the same
claimant for the maritime claim shall be set aside, and the ship released by the Court or other
appropriate judicial authority of that State, unless the claimant can satisfy the Court or other
appropriate judicial authority that the bail or other security had been finally released before the
subsequent arrest or that there is other good cause for maintaining that arrest.
4. When in the case of a charter by demise of a ship the charterer and not the registered owner
is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship
or any other ship in the ownership of the charterer by demise, subject to the provisions of this
Convention, but no other ship in the ownership of the registered owner shall be liable to arrest
in respect of such maritime claim. The provisions of this paragraph shall apply to any case in
which a person other than the registered owner of a ship is liable in respect of a maritime claim
relating to that ship.
ARTICLE 4:
A ship may only be arrested under the authority of a Court or of the appropriate judicial autho-
rity of the contracting State in which the arrest is made.
ARTICLE 5:
The Court or other appropriate judicial authority within whose jurisdiction the ship has been
arrested shall permit the release of the ship upon sufficient bail or other security being furnis-
hed, save in cases in which a ship has been arrested in respect of any of the maritime claims enu-
merated in article 1, (o ) and (p). In such cases the Court or other appropriate judicial authority
may permit the person in possession of the ship to continue trading the ship, upon such person
furnishing sufficient bail or other security, or may otherwise deal with the operation of the ship
during the period of the arrest. In default of agreement between the parties as to the sufficiency
of the bail or other security, the Court or other appropriate judicial authority shall determine the
nature and amount thereof. The request to release the ship against such security shall not be
construed as an acknowledgment of liability or as a waiver of the benefit of the legal limitations
of liability of the owner of the ship.
ARTICLE 6:
All questions whether in any case the claimant is liable in damages for the arrest of a ship or for
the costs of the bail or other security furnished to release or prevent the arrest of a ship, shall
be determined by the law of the Contracting State in whose jurisdiction the arrest was made or
applied for. The rules of procedure relating to the arrest of a ship, to the application for obtai-
ning the authority referred to in Article 4, and to all matters of procedure which the arrest may
entail, shall be governed by the law of the Contracting State in which the arrest was made or
applied for.
ARTICLE 7:
1. The Courts of the country in which the arrest was made shall have jurisdiction to determine
the case upon its merits if the domestic law of the country in which the arrest is made gives
jurisdiction to such Courts, or in any of the following cases namely:
(a) if the claimant has his habitual residence or principal place of business in the country in
which the arrest was made;
(b) if the claim arose in the country in which the arrest was made;
(c) if the claim concerns the voyage of the ship during which the arrest was made;
(d) if the claim arose out of a collision or in circumstances covered by article 13 of the Interna-
tional Convention for the unification of certain rules of law with respect to collisions between
vessels, signed at Brussels on 23rd September 1910;
(e) if the claim is for salvage;
(f) if the claim is upon a mortgage or hypothecation of the ship arrested.
2. If the Court within whose jurisdiction the ship was arrested has not jurisdiction to decide
upon the merits, the bail or other security given in accordance with article 5 to procure the
release of the ship shall specifically provide that it is given as security for the satisfaction of any
judgment which may eventually be pronounced by a Court having jurisdiction so to decide;
and the Court or other appropriate judicial authority of the country in which the claimant shall
bring an action before a Court having such jurisdiction.
3. If the parties have agreed to submit the dispute to the jurisdiction of a particular Court other
than that within whose jurisdiction the arrest was made or to arbitration, the Court or other
appropriate judicial authority within whose jurisdiction the arrest was made may fix the time
within which the claimant shall bring proceedings.
4. If, in any of the cases mentioned in the two preceding paragraphs, the action or proceeding
is not brought within the time so fixed, the defendant may apply for the release of the ship or
335
of the bail or other security.
5. This article shall not apply in cases covered by the provisions of the revised Rhine Navigation
Convention of 17 October 1868.
ARTICLE 8:
1. The provisions of this Convention shall apply to any vessel flying the flag of a Contracting
State in the jurisdiction of any Contracting State.
2. A ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any
Contracting State in respect of any of the maritime claims enumerated in article 1 or of any other
claim for which the law of the Contracting State permits arrest.
3. Nevertheless any Contracting State shall be entitled wholly or partly to exclude from the
benefits of this convention any government of a non-Contracting State or any person who has
not, at the time of the arrest, his habitual residence or principal place of business in one of the
Contracting States.
4. Nothing in this Convention shall modify or affect the rules of law in force in the respective
Contracting States relating to the arrest of any ship within the jurisdiction of the State of her flag
by a person who has his habitual residence or principal place of business in that State.
5. When a maritime claim is asserted by a third party other than the original claimant, whether
by subrogation, assignment or other-wise, such third party shall, for the purpose of this Con-
vention, be deemed to have the same habitual residence or principal place of business as the
original claimant.
ARTICLE 9:
Nothing in this Convention shall be construed as creating a right of action, which, apart from
the provisions of this Convention, would not arise under the law applied by the Court which
was seized of the case, nor as creating any maritime liens which do not exist under such law or
under the Convention on maritime mortgages and liens, if the latter is applicable.
ARTICLE 10:
The High Contracting Parties may at the time of signature, deposit or ratification or accession,
reserve:
(a) the right not to apply this Convention to the arrest of a ship for any of the claims enumerated
in paragraphs (o ) and (p) of article 1, but to apply their domestic laws to such claims;
(b) the right not to apply the first paragraph of article 3 to the arrest of a ship within their juris-
diction for claims set out in article 1 paragraph (q).
ARTICLE 11:
The High Contracting Parties undertake to submit to arbitration any disputes between States
arising out of the interpretation or application of this Convention, but this shall be without
prejudice to the obligations of those High Contracting Parties who have agreed to submit their
disputes to the International Court of Justice.
ARTICLE 12:
This Convention shall be open for signature by the States represented at the Ninth Diplomatic
Conference on Maritime Law. The protocol of signature shall be drawn up through the good
offices of the Belgian Ministry of Foreign Affairs.
ARTICLE 13:
This Convention shall be ratified and the instruments of ratification shall be deposited with the
Belgian Ministry of Foreign Affairs which shall notify all signatory and acceding States of the
deposit of any such instruments.
ARTICLE 14:
(a ) This Convention shall come into force between the two States which first ratify it, six months
after the date of the deposit of the second instrument of ratification.
(b ) This Convention shall come into force in respect of each signatory State which ratifies it after
the deposit of the second instrument of ratification six months after the date of the deposit of
the instrument of ratification of that State.
ARTICLE 15:
Any State not represented at the Ninth Diplomatic Conference on Maritime Law may accede
to this Convention. The accession of any State shall be notified to the Belgian Ministry of Fo-
reign Affairs which shall inform through diplomatic channels all signatory and acceding States
of such notification. The Convention shall come into force in respect of the acceding State six
months after the date of the receipt of such notification but not before the Convention has
336
come into force in accordance with the provisions of Article 14(a).
ARTICLE 16:
Any High Contracting Party may three years after coming into force of this Convention in res-
pect of such High Contracting Party or at any time thereafter request that a conference be
convened in order to consider amendments to the Convention. Any High Contracting Party
proposing to avail itself of this right shall notify the Belgian Government which shall convene
the conference within six months thereafter.
ARTICLE 17:
Any High Contracting Party shall have the right to denounce this Convention at any time after
the coming into force thereof in respect of such High Contracting Party. This denunciation
shall take effect one year after the date on which notification thereof has been received by the
Belgian Government which shall inform through diplomatic channels all the other High Con-
tracting Parties of such notification.
ARTICLE 18:
(a ) Any High Contracting Party may at the time of its ratification of or accession to this Con-
vention or at any time thereafter declare by written notification to the Belgian Ministry of Fo-
reign Affairs that the Convention shall extend to any of the territories for whose international
relations it is responsible. The Convention shall six months after the date of the receipt of such
notification by the Belgian Ministry of Foreign Affairs extend to the territories named therein,
but not before the date of the coming into force of the Convention in respect of such High
Contracting Party.
(b ) A High Contracting Party which has made a declaration under paragraph (a ) of this Article
extending the Convention to any territory for whose international relations it is responsible may
at any time thereafter declare by notification given to the Belgian Ministry of Foreign Affairs that
the Convention shall cease to extend to such territory and the Convention shall one year after
the receipt of the notification by the Belgian Ministry of Foreign Affairs cease to extend thereto.
(c ) The Belgian Ministry of Foreign Affairs shall inform through diplomatic channels all signa-
tory and acceding States of any notification received by it under this Article.
337
APPENDIX 2
INTERNATIONAL CONVENTION ON
ARREST OF SHIPS, 1999
ARTICLE 1:
Definitions
For the purposes of this Convention:
a) loss or damage caused by the operation of the ship;
b) loss of life or personal injury occurring, whether on land or on water, in direct connection
c) salvage operations or any salvage agreement, including, if applicable, special compensation
to the environment;
d) damage or threat of damage caused by the ship to the environment, coastline or related
interests; measures taken to prevent, minimize, or remove such damage; compensation for such
damage; costs of reasonable measures of reinstatement of the environment actually under-
taken or to be undertaken; loss incurred or likely to be incurred by third parties in connection
with such damage; and damage, costs, or loss of a similar nature to those identified in this
subparagraph (d);
e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering
f) any agreement relating to the use or hire of the ship, whether contained in a charter party
or otherwise;
g) any agreement relating to the carriage of goods or passengers on board the ship, whether
h) loss of or damage to or in connection with goods (including luggage) carried on board the
ship;
i) general average;
j) towage;
k) pilotage;
l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services
m) construction, reconstruction, repair, converting or equipping of the ship;
n) port, canal, dock, harbour and other waterway dues and charges;
o) wages and other sums due to the master, officers and other members of the ship’s com-
p) disbursements incurred on behalf of the ship or its owners;
q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or
on behalf of the shipowner or demise charterer;
r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of
the shipowner or demise charterer;
s) any dispute as to ownership or possession of the ship;
t) any dispute between co-owners of the ship as to the employment or earnings of the ship;
u) a mortgage or a “hypothèque” or a charge of the same nature on the ship;
v) any dispute arising out of a contract for the sale of the ship.
2. “Arrest” means any detention or restriction on removal of a ship by order of a Court to secure
a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a jud-
gment or other enforceable instrument.
3. “Person” means any individual or partnership or any public or private body, whether corpo-
rate or not, including a State or any of its constituent subdivisions.
4. “Claimant” means any person asserting a maritime claim.
338
5. “Court” means any competent judicial authority of a State.
ARTICLE 2:
Powers of arrest
1. A ship may be arrested or released from arrest only under the authority of a Court of the State
Party in which the arrest is effected.
2. A ship may only be arrested in respect of a maritime claim but in respect of no other claim.
3. A ship may be arrested for the purpose of obtaining security notwithstanding that, by virtue
of a jurisdiction clause or arbitration clause in any relevant contract, or otherwise, the maritime
claim in respect of which the arrest is effected is to be adjudicated in a State other than the State
where the arrest is effected, or is to be arbitrated, or is to be adjudicated subject to the law of
another State.
4. Subject to the provisions of this Convention, the procedure relating to the arrest of a ship or
its release shall be governed by the law of the State in which the arrest was effected or applied
for.
ARTICLE 3:
Exercise of right of arrest
1. Arrest is permissible of any ship in respect of which a maritime claim is asserted if:
a) 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; or
b) the demise 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; or
c) the claim is based upon a mortgage or a “hypothèque” or a charge of the same nature on
the ship; or
d) the claim relates to the ownership or possession of the ship; or
e) the claim is against the owner, demise charterer, manager or operator of the ship and is se-
cured by a maritime lien which is granted or arises under the law of the State where the arrest
is applied for.
2. Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are
owned by the person who is liable for the maritime claim and who was, when the claim arose:
a) owner of the ship in respect of which the maritime claim arose; or
b) demise charterer, time charterer or voyage charterer of that ship.
This provision does not apply to claims in respect of ownership or possession of a ship.
3. Notwithstanding the provisions of paragraphs 1 and 2 of this article, 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 that ship by judicial or forced sale of that ship.
ARTICLE 4:
Release from arrest
1. A ship which has been arrested shall be released when sufficient security has been provided
in a satisfactory form, save in cases in which a ship has been arrested in respect of any of the
maritime claims enumerated in article 1, paragraphs 1 (s) and (t). In such cases, the Court may
permit the person in possession of the ship to continue trading the ship, upon such person
providing sufficient security, or may otherwise deal with the operation of the ship during the
period of the arrest.
2. In the absence of agreement between the parties as to the sufficiency and form of the secu-
rity, the Court shall determine its nature and the amount thereof, not exceeding the value of
the arrested ship.
3. Any request for the ship to be released upon security being provided shall not be construed
as an acknowledgement of liability nor as a waiver of any defence or any right to limit liability.
4. If a ship has been arrested in a non-party State and is not released although security in respect
of that ship has been provided in a State Party in respect of the same claim, that security shall be
ordered to be released on application to the Court in the State Party.
5. If in a non-party State the ship is released upon satisfactory security in respect of that ship
being provided, any security provided in a State Party in respect of the same claim shall be or-
dered to be released to the extent that the total amount of security provided in the two States
exceeds:
a) the claim for which the ship has been arrested, or
b) the value of the ship,
whichever is the lower. Such release shall, however, not be ordered unless the security provided
in the non-party State will actually be available to the claimant and will be freely transferable.
339
6: Where, pursuant to paragraph 1 of this article, security has been provided, the person provi-
ding such security may at any time apply to the Court to have that security reduced, modified,
or cancelled.
ARTICLE 5:
Right of re-arrest and multiple arrest
1. Where in any State a ship has already been arrested and released or security in respect of
that ship has already been provided to secure a maritime claim, that ship shall not thereafter be
rearrested or arrested in respect of the same maritime claim unless:
a) the nature or amount of the security in respect of that ship already provided in respect of the
same claim is inadequate, on condition that the aggregate amount of security may not exceed
the value of the ship; or
b) the person who has already provided the security is not, or is unlikely to be, able to fulfil some
or all of that person’s obligations; or
c) the ship arrested or the security previously provided was released either:
i) upon the application or with the consent of the claimant acting on reasonable grounds, or
ii) because the claimant could not by taking reasonable steps prevent the release.
2. Any other ship which would otherwise be subject to arrest in respect of the same maritime
claim shall not be arrested unless:
a) the nature or amount of the security already provided in respect of the same claim is inade-
quate; or
b) the provisions of paragraph 1 (b) or (c) of this article are applicable.
3. “Release” for the purpose of this article shall not include any unlawful release or escape from arrest.
ARTICLE 6:
Protection of owners and demise charterers of arrested ships
1. The Court may as a condition of the arrest of a ship, or of permitting an arrest already effected
to be maintained, impose upon the claimant who seeks to arrest or who has procured the arrest
of the ship the obligation to provide security of a kind and for an amount, and upon such terms,
as may be determined by that Court for any loss which may be incurred by the defendant as a
result of the arrest, and for which the claimant may be found liable, including but not restricted
to such loss or damage as may be incurred by that defendant in consequence of:
a) the arrest having been wrongful or unjustified; or
b) excessive security having been demanded and provided.
2. The Courts of the State in which an arrest has been effected shall have jurisdiction to determi-
ne the extent of the liability, if any, of the claimant for loss or damage caused by the arrest of a
ship, including but not restricted to such loss or damage as may be caused in consequence of:
a) the arrest having been wrongful or unjustified, or
b) excessive security having been demanded and provided.
3. The liability, if any, of the claimant in accordance with paragraph 2 of this article shall be de-
termined by application of the law of the State where the arrest was effected.
4. If a Court in another State or an arbitral tribunal is to determine the merits of the case in accor-
dance with the provisions of article 7, then proceedings relating to the liability of the claimant in
accordance with paragraph 2 of this article may be stayed pending that decision.
5. Where pursuant to paragraph 1 of this article security has been provided, the person provi-
ding such security may at any time apply to the Court to have that security reduced, modified
or cancelled.
ARTICLE 7:
Jurisdiction on the merits of the case
1. The Courts of the State in which an arrest has been effected or security provided to obtain
the release of the ship shall have jurisdiction to determine the case upon its merits, unless the
parties validly agree or have validly agreed to submit the dispute to a Court of another State
which accepts jurisdiction, or to arbitration.
2. Notwithstanding the provisions of paragraph 1 of this article, the Courts of the State in which
an arrest has been effected, or security provided to obtain the release of the ship, may refuse to
exercise that jurisdiction where that refusal is permitted by the law of that State and a Court of
another State accepts jurisdiction.
3. In cases where a Court of the State where an arrest has been effected or security provided to
obtain the release of the ship:
a) does not have jurisdiction to determine the case upon its merits; or
b) has refused to exercise jurisdiction in accordance with the provisions of paragraph 2 of this article,
such Court may, and upon request shall, order a period of time within which the claimant shall
340
bring proceedings before a competent Court or arbitral tribunal.
4. If proceedings are not brought within the period of time ordered in accordance with para-
graph 3 of this article then the ship arrested or the security provided shall, upon request, be
ordered to be released.
5. If proceedings are brought within the period of time ordered in accordance with paragraph 3
of this article, or if proceedings before a competent Court or arbitral tribunal in another State are
brought in the absence of such order, any final decision resulting therefrom shall be recognized
and given effect with respect to the arrested ship or to the security provided in order to obtain
its release, on condition that:
a) the defendant has been given reasonable notice of such proceedings and a reasonable op-
portunity to present the case for the defence; and
b) such recognition is not against public policy (ordre public)
6. Nothing contained in the provisions of paragraph 5 of this article shall 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.
ARTICLE 8:
Application
1. This Convention shall apply to any ship within the jurisdiction of any State Party, whether or
not that ship is flying the flag of a State Party.
2. This Convention shall not apply to any warship, naval auxiliary or other ships owned or ope-
rated by a State and used, for the time being, only on government non-commercial service.
3. This Convention does not affect any rights or powers vested in any Government or its de-
partments, or in any public authority, or in any dock or harbour authority, under any internatio-
nal convention or under any domestic law or regulation, to detain or otherwise prevent from
sailing any ship within their jurisdiction.
4. This Convention shall not affect the power of any State or Court to make orders affecting the
totality of a debtor’s assets.
5. Nothing in this Convention shall affect the application of international conventions providing
for limitation of liability, or domestic law giving effect thereto, in the State where an arrest is
effected.
6. Nothing in this Convention shall modify or affect the rules of law in force in the States Parties
relating to the arrest of any ship physically within the jurisdiction of the State of its flag procu-
red by a person whose habitual residence or principal place of business is in that State, or by
any other person who has acquired a claim from such person by subrogation, assignment or
otherwise.
ARTICLE 9:
Non-creation of maritime liens
Nothing in this Convention shall be construed as creating a maritime lien.
ARTICLE 10:
Reservations
1. Any State may, at the time of signature, ratification, acceptance, approval, or accession, or at
any time thereafter, reserve the right to exclude the application of this Convention to any or all
of the following :
a) ships which are not seagoing;
b) ships not flying the flag of a State Party;
c) claims under article 1, paragraph 1 (s).
2. A State may, when it is also a State Party to a specified treaty on navigation on inland
waterways, declare when signing, ratifying, accepting, approving or acceding to this Conven-
tion, that rules on jurisdiction, recognition and execution of court decisions provided for in such
treaties shall prevail over the rules contained in article 7 of this Convention.
ARTICLE 11:
Depositary
This Convention shall be deposited with the Secretary-General of the United Nations.
ARTICLE 12:
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open for signature by any State at the Headquarters of the United
Nations, New York, from 1 September 1999 to 31 August 2000 and shall thereafter remain
open for accession.
2. States may express their consent to be bound by this Convention by:
341
a) signature without reservation as to ratification, acceptance or approval; or
b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance
or approval; or
c) accession.
3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instru-
ment to that effect with the depositary.
ARTICLE 13:
States with more than one system of law
1. If a State has two or more territorial units in which different systems of law are applicable in
relation to matters dealt with in this Convention, it may at the time of signature, ratification,
acceptance, approval or accession declare that this Convention shall extend to all its territorial
units or only to one or more of them and may modify this declaration by submitting another
declaration at any time.
2. Any such declaration shall be notified to the depositary and shall state expressly the territorial
units to which the Convention applies.
3. In relation to a State Party which has two or more systems of law with regard to arrest of ships
applicable in different territorial units, references in this Convention to the Court of a State and
the law of a State shall be respectively construed as referring to the Court of the relevant territo-
rial unit within that State and the law of the relevant territorial unit of that State.
ARTICLE 14:
Entry into force
1. This Convention shall enter into force six months following the date on which 10 States have
expressed their consent to be bound by it.
2. For a State which expresses its consent to be bound by this Convention after the conditions
for entry into force thereof have been met, such consent shall take effect three months after the
date of expression of such consent.
ARTICLE 15:
Revision and amendment
1. A conference of States Parties for the purpose of revising or amending this Convention shall
be convened by the Secretary-General of the United Nations at the request of one-third of the
States Parties.
2. Any consent to be bound by this Convention, expressed after the date of entry into force of
an amendment to this Convention, shall be deemed to apply to the Convention, as amended.
ARTICLE 16:
Denunciation
1. This Convention may be denounced by any State Party at any time after the date on which
this Convention enters into force for that State.
2. Denunciation shall be effected by deposit of an instrument of denunciation with the depositary.
3. A denunciation shall take effect one year, or such longer period as may be specified in the ins-
trument of denunciation, after the receipt of the instrument of denunciation by the depositary.
ARTICLE 17:
Languages
This Convention is established in a single original in the Arabic, Chinese, English, French, Rus-
sian and Spanish languages, each text being equally authentic.
342
APPENDIX 3
INTERNATIONAL CONVENTION FOR

THE UNIFICATION OF CERTAIN RULES
OF LAW RELATING TO MARITIME LIENS
AND MORTGAGES, 1926
ARTICLE 1:
Mortgages, hypothecations, and other similar charges upon vessels, duly effected in accordan-
ce with the law of the Contracting State to which the vessel belongs, and registered in a public
register either at the port of the vessel’s registry or at a central office, shall be regarded as valid
and respected in all the other contracting countries.
ARTICLE 2:
The following give rise to maritime liens on a vessel, on the freight for the voyage during which
the claim giving rise to the lien arises, and on the accessories of the vessel and freight accrued
since the commencement of the voyage;
1. Law costs due to the State, and expenses incurred in the common interest of the creditors in
order to preserve the vessel or to procure its sale and the distribution of the proceeds of sale;
tonnage dues, light or harbour dues, and other public taxes and charges of the same character;
pilotage dues; the cost of watching and preservation from the time of the entry of the vessel
into the last port;
2. Claims arising out of the contract of engagement of the master, crew and other persons hired
on board;
3. Remuneration for assistance and salvage, and the contribution of the vessel in general ave-
rage; 4. Indemnities for collision or other accident of navigation, as also for damage caused to
works forming part of harbours, docks, and navigable ways; indemnities for personal injury to
passengers or crew; indemnities for loss of or damage to cargo or baggage;
5. Claims resulting form contracts entered into or acts done by the master, acting within the
scope of his authority away from the vessel’s home port, where such contracts or acts are ne-
cessary for the preservation of the vessel or the continuation of its voyage, whether the master
is or is not at the same time owner of the vessel, and whether the claim is his own or that of
ship-chandlers, repairers, lenders, or other contractual creditors.
ARTICLE 3:
The mortgages, hypothecations, and other charges on vessels referred to in Article 1 rank im-
mediately after the secured claims referred to in the preceding Article. National laws may grant
a lien in respect of claims other than those referred to in the said last-mentioned Article, so,
however, as not to modify the ranking of claims secured by mortgages, hypothecations, and
other similar charges, or by the liens taking precedence thereof.
ARTICLE 4:
The accessories of the vessel and the freight mentioned in Article 2 mean:
1. Compensation due to the owner for material damage sustained by the vessel and not repai-
red, or for loss of freight;
2. General average contributions due to the owner, in respect of material damage sustained by
the vessel and not repaired, or in respect of loss of freight;
3. Remuneration due to the owner for assistance and salvage services rendered at any time
before the end of the voyage, any sums allotted to the master or other persons in the service of
the vessel being deducted.
The provision as to freight apply also to passage money, and, in the last resort, to the sums due
under Article 4 of the Convention on the limitation of shipowners’ liability.
Payments made or due to the owner on policies of insurance, as well as bounties, subventions,
and other national subsidies are not deemed to be accessories of the vessel or of the freight.
Notwithstanding anything in the opening words of Article 2.(2), the lien in favour of persons in
343
the service of the vessel extends, to the total amount of freight due for all voyages made during
the subsistence of the same contract of engagement.
ARTICLE 5:
Claims secured by a lien and relating to the same voyage rank in the order in which they are set
out in Article 2. Claims included under any one heading share concurrently and rateably in the
event of the fund available being insufficient to pay the claims in full.
The claims mentioned under Nos. 3 and 5 in that Article rank, in each of the two categories, in
the inverse order of the dates on which they came into existence.
Claims arising from one and the same occurrence are deemed to have come into existence at
the same time.
ARTICLE 6:
Claims secured by a lien and attaching to the last voyage have priority over those attaching to
previous voyage.
Provided that claims, arising on one and the same contract of engagement extending over
several voyages, all rank with claims attaching to the last voyage.
ARTICLE 7:
As regards the distribution of the sum resulting from the sale of the property subject to a lien,
the creditors whose claims are secured by a lien have the right to put forward their claims in
full, without any deduction on account of the rules relating to limitation of liability provided,
however, that the sum apportioned to them may not exceed the sum due having regard to the
said rules.
ARTICLE 8:
Claims secured by a lien follow the vessel into whatever hands it may pass.
ARTICLE 9:
The liens cease to exist, apart from other cases provided for by national laws, at the expiration
of one year, and, in the case of liens for supplies mentioned in No.5 of Article 2, shall continue
in force for not more than six months.
The periods for which the lien remains in force in the case of liens securing claims in respect
of assistance and salvage run from the day when the services terminated, in the case of liens
securing claims in respect of collision and other accidents and in respect of bodily injuries from
the day when the damage was caused; in the case of liens for the loss of or damage or cargo
or baggage from the day of the delivery of the cargo or baggage or from the day when they
should have been delivered; for repairs and supplies and other cases mentioned in No.5 of
Article 2 from the day the claim originated. In all the other cases the period runs from the en-
forceability of the claim.
The fact that any of the persons employed on board, mentioned in No. 2 of Article 2 has a right
to any payment in advance or on account does not render his claim enforceable.
As respects the cases provided for in the national laws in which a lien is extinguished, a sale
shall extinguish a lien only if accompanied by formalities of publicity which shall be laid down
by the national laws.
These formalities shall include a notice given in such form and within such time as the national
laws may prescribe to the authority charged with keeping the registers referred to in Article 1
of this Convention.
The grounds upon which the above periods may be interrupted are determined by the law of
the court where the case is tried.
The High Contracting Parties reserve to themselves the right to provide by legislation in their
respective countries, that the said periods shall be extended in cases where it has not been pos-
sible to arrest the vessel to which a lien attaches in the territorial waters of the state in which the
claimant has his domicile or his principal place of business, provided that the extended period
shall not exceed three years from the time when the claim originated.
ARTICLE 10:
A lien on freight may be enforced so long as the freight is still due or the amount of the freight
is still in the hands of the master or the agent of the owner. The same principle applies to a lien
on accessories.
ARTICLE 11:
Subject to the provisions of this Convention, liens established by the preceding provisions are
subject to no formality and to no special condition of proof. This provision does not affect the
344
right of any State to maintain in the legislation provisions requiring the master of a vessel to fulfil
special formalities in the case of certain loans raised on the security of the vessel, or in the case
of the sale of its cargo.
ARTICLE 12:
National laws must prescribe the nature and the form of documents to be carried on board
the vessel in which entry must be made of the mortgages. hypothecations, and other charges
referred to in Article 1; so, however, that the mortgagees requiring such entry in the said form
be not held responsible for any omission, mistake, or delay in inscribing the same on the said
documents.
ARTICLE 13:
The foregoing provisions apply to vessels under the management of a person who operates
them without owning them or to the principal charterer, except in cases where the owner has
been dispossessed by an illegal act or where the claimant is not a bona fide claimant.
ARTICLE 14:
The provisions of this Convention shall be applied in each Contracting State in cases in which
the vessel to which the claim relates belongs to a Contracting State as well as in any other ca-
ses provided for by the national laws. Nevertheless the principle formulated in the preceding
paragraph does not affect the right of the Contracting States not to apply the provisions of this
Convention in favour of the nationals of a non-contracting State.
ARTICLE 15:
This Convention does not apply to vessels of war, nor to government vessels appropriated ex-
clusively to the public service.
ARTICLE 16:
Nothing in the foregoing provisions shall be deemed to affect in any way the competence of
tribunals, modes of procedure or methods of execution authorized by the national law.
ARTICLE 17:
After an interval of not more than two years from the day on which the Convention is signed,
the Belgian Government shall place itself in communication with the Governments of the High
Contracting Parties which have declared themselves prepared to ratify the Convention, with
a view to deciding whether it shall be put into force. The ratifications shall be deposited at
Brussels at a date to be fixed by agreement among the said Governments. The first deposit of
ratifications shall be recorded in a process-verbal signed by the representatives of the powers
which take part therein and by the Belgian Minister for Foreign Affairs.
The subsequent deposits of ratifications shall be made by means of a written notification, ad-
dressed to the Belgian Government, and accompanied by the instrument of ratification.
A duly certified copy of the process-verbal relating to the first deposit of ratifications, of the
notification referred to in the previous paragraph, and also of the instruments of ratification
accompanying them, shall be immediately sent by the Belgian Government through the diplo-
matic channel to the powers who have signed this Convention or who have acceded to it. In
the cases contemplated in the preceding paragraph the said Government shall inform them at
the same time of the date on which it received the notification.
ARTICLE 18:
Non-signatory States may accede to the present Convention whether or not they have been
represented at the international Conference at Brussels.
A State which desires to accede shall notify its intention in writing to the Belgian Government,
forwarding to it the document of accession which shall be deposited in the archives of the said
Government.
The Belgian Government shall immediately forward to all the states which have signed or ac-
ceded to the Convention a duly certified copy of the notification and of the act of accession,
mentioning the date on which it received the notification.
ARTICLE 19:
The High Contracting Parties may at the time of signature, ratification, or accession declare that
their acceptance of the present Convention does not include any or all of the self-governing
dominions, or of the colonies, overseas possession, protectorates, or territories under their so-
vereignty or authority, and they may subsequently accede separately on behalf of any self-
governing dominion, colony, overseas possession, protectorate or territory excluded in their de-
claration. They may also denounce the Convention separately in accordance with its provision
345
in respect of any self-governing dominion, or any colony, overseas possession, protectorate, or
territory under their sovereignty or authority.
ARTICLE 20:
The present Convention shall take effect, in the case of the states which have taken part in the
first deposit of ratifications, one year after the date of the process-verbal recording such deposit.
As respects the states which ratify subsequently or which accede and also in cases in which the
convention is subsequently put into effect in accordance with Article 19, it shall take effect six
months after the notifications specified in Article 17, $ 2, and Article 18, $ 2, have been received
by the Belgian Government.
ARTICLE 21:
In the event of one of the Contracting States wishing to denounce the present Convention, the
denunciation shall be notified in writing to the Belgian Government, which shall immediately
communicate a duly certified copy of the notification to all the other states informing them of
the date on which it was received.
The denunciation shall only operate in respect of the state which made the notification and on
the expiration of one year after the notification has reached the Belgian Government.
ARTICLE 22:
Any one of the Contracting States shall have the right to call for a new conference with a view
to considering possible amendments.
A state which would exercise this right should give one year advance notice of its intention to
the other states through the Belgian Government which would make arrangements for conve-
ning the conference.
PROTOCOL OF SIGNATURE: In proceeding to the signature of the International Convention

for the unification of Certain rules relating to maritime liens and mortgages, the undersigned
plenipotentiaries have adopted the present Protocol, which will have the same force and the
same value as if the provisions were inserted in the text of the Convention to which it relates:
I. It is understood that the legislation of each state remains free (1) to establish among the
claims mentioned in No.1 of Article 2, a definite order of priority with a view to safeguarding
the interests of the Treasury; (2) to confer on the authorities administering harbours, docks,
lighthouses, and navigable ways, who have caused a wreck or other obstruction to navigation
to be removed, or who are creditors in respect of harbour dues, or for damage caused by the
fault of a vessel, the right, in case of non-payment, to detain the vessel, wreck, or other property,
to sell the same, and to indemnify themselves out of the proceed in priority to other claimants,
and (3) to determine the rank of the claimants for damages done to works otherwise than as
stated in Article 5 and in Article 6.
II. There is no impairment of the provisions in the national laws of the Contracting States confe-
rring a lien upon public insurance associations in respect of claims arising out of the insurance
of the personnel of vessels.
346
APPENDIX 4
INTERNATIONAL CONVENTION ON
MARITIME LIENS AND MORTGAGES, 1993
ARTICLE 1:
Recognition and enforcement of mortgages, “hypothèques” and charges
Mortgages, “hypothèques” and registrable charges of the same nature, which registrable char-
ges of the same nature will be referred to hereinafter as “charges” effected on seagoing vessels
shall be recognized and enforceable in States Parties provided that:
(a) such mortgages, “hypothèques” and charges have been effected and registered in accor-
dance with the law of the State in which the vessel is registered;
(b) the register and any instruments required to be deposited with the registrar in accordance
with the law of the State in which the vessel is registered are open to public inspection, and
that extracts from the register and copies of such instruments are obtainable from the registrar;
and
(c) either the register or any instruments referred to in subparagraph (b) specifies at least the
name and address of the person in whose favour the mortgage, “hypothèque” or charge has
been effected or that it has been issued to bearer, the maximum amount secured, if that is a
requirement of the law of the State of registration or if that amount is specified in the instrument
creating the mortgage, “hypothèque” or charge, and the date and other particulars which,
according to the law of the State of registration, determine the ranking in relation to other re-
gistered mortgages, “hypothèques” and charges.
ARTICLE 2:
Ranking and effects of mortgages, “hypothèques” and charges
The ranking of registered mortgages, “hypothèques” or charges as between themselves and,
without prejudice to the provisions of this Convention, their effect in regard to third parties shall
be determined by the law of the State of registration; however, without prejudice to the provi-
sions of this Convention, all matters relating to the procedure of enforcement shall be regulated
by the law of the State where enforcement takes place.
ARTICLE 3:
Change of ownership or registration
1. With the exception of the cases provided for in articles 11 and 12, in all other cases that entail
the deregistration of the vessel from the register of a State Party, such State Party shall not permit
the owner to deregister the vessel unless all registered mortgages, “hypothèques” or charges
are previously deleted or the written consent of all holders of such mortgages, “hypothèques”
or charges is obtained. However, where the deregistration of the vessel is obligatory in accor-
dance with the law of a State Party, otherwise than as a result of a voluntary sale, the holders of
registered mortgages, “hypotheques” or charges shall be notified of the pending deregistration
in order to enable such holders to take appropriate action to protect their interests; unless the
holders consent, the deregistration shall not be implemented earlier than after a lapse of a rea-
sonable period of time which shall be not less than three months after the relevant notification
to such holders.
2. Without prejudice to article 12, paragraph 5, a vessel which is or has been registered in a
State Party shall not be eligible for registration in another State Party unless either:
(a) a certificate has been issued by the former State to the effect that the vessel has been dere-
gistered; or
(b) a certificate has been issued by the former State to the effect that the vessel will be deregis-
tered with immediate effect, at such time as the new registration is effected. The date of dere-
gistration shall be the date of the new registration of the vessel.
ARTICLE 4:
Maritime liens
1. Each of the following claims against the owner, demise charterer, manager or operator of the
vessel shall be secured by a maritime lien on the vessel:
347
(a) claims for wages and other sums due to the master, officers and other members of the
vessel’s complement in respect of their employment on the vessel, including costs of repatria-
tion and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land or on water, in
(c) claims for reward for the salvage of the vessel;
(d) claims for port. canal. and other waterway dues and pilotage dues;
(e) claims based on tort arising out of physical loss or damage caused by the operation of the
vessel other than loss of or damage to cargo, containers and passengers’ effects carried on the
vessel.
2. No maritime lien shall attach to a vessel to secure claims as set out in subparaghraphs (b) and
(e) of paragraph 1 which arise out of or result from:
(a) damage in connection with the carriage of oil or other hazardous or noxious substances by
sea for which compensation is payable to the claimants pursuant to international conventions
or national law providing for strict liability and compulsory insurance or other means of secu-
ring the claims; or (b) the radioactive properties or a combination of radioactive properties
with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or
waste.
ARTICLE 5:
Priority of maritime liens
1. The maritime liens set out in article 4 shall take priority over registered mortgages, “hypothè-
ques” and charges, and no other claim shall take priority over such maritime liens or over such
mortgages, “hypotheques” or charges which comply with the requirements of article 1, except
as provided in paragraphs 3 and 4 of article 12.
2. The maritime liens set out in article 4 shall rank in the order listed, provided however that
maritime liens securing claims for reward for the salvage of the vessel shall take priority over all
other maritime liens which have attached to the vessel prior to the time when the operations
giving rise to the said liens were performed.
3. The maritime liens set out in each of subparagraphs (a), (b), (d) and (e) of paragraph 1 of
article 4 shall rank pari passu as between themselves.
4. The maritime liens securing claims for reward for the salvage of the vessel shall rank in the in-
verse order of the time when the claims secured thereby accrued. Such claims shall be deemed
to have accrued on the date on which each salvage operation was terminated.
ARTICLE 6:
Other maritime liens
Each State Party may, under its law, grant other maritime liens on a vessel to secure claims other
than those referred to in article 4, against the owner, demise charterer, manager or operator of
the vessel, provided that such liens:
(a) shall be subject to the provisions of articles 8, 10 and 12;
(b) shall be extinguished
(i) after a period of 6 months. from the time when the claims secured thereby arose unless, prior
to the expiry of such period, the vessel has been arrested or seized, such arrest or seizure leading
to a forced sale; or
(ii) at the end of a period of 60 days following a sale to a bona fide purchaser of the vessel, such
period to commence on the date on which the sale is registered in accordance with the law
of the State in which the vessel is registered following the sale; whichever period expires first;
and
(c) shall rank after the maritime liens set out in article 4 and also after registered mortgages,
“hypothèques” or charges which comply with the provisions of article 1.
ARTICLE 7:
Rights of retention
1. Each State Party may grant under its law a right of retention in respect of a vessel in the pos-
session of either:
(a) a shipbuilder, to secure claims for the building of the vessel; or
(b) a shiprepairer, to secure claims for repair, including reconstruction of the vessel, effected
during such possession.
2. Such right of retention shall be extinguished when the vessel ceases to be in the possession of
the shipbuilder or shiprepairer, otherwise than in consequence of an arrest or seizure.
348
ARTICLE 8:
Characteristics of maritime liens
Subject to the provisions of article 12, the maritime liens follow the vessel, notwithstanding any
change of ownership or of registration or of flag.
ARTICLE 9:
Extinction of maritime liens because of time.
1. The maritime liens set out in article 4 shall be extinguished after a period of one year unless,
prior to the expiry of such period, the vessel has been arrested or seized, such arrest or seizure
leading to a forced sale.
2. The one-year period referred to in paragraph 1 shall commence:
(a) with respect to the maritime lien set out in article 4, paragraph 1(a), upon the claimant’s
discharge from the vessel;
(b) with respect to the maritime liens set out in article 4, paragraph 1 (b) to (e), when the claims
secured thereby arise;
and shall not be subject to suspension or interruption , provided, however, that time shall not
run during the period that the arrest or seizure of the vessel is not permitted by law.
ARTICLE 10:
Assignment and subrogation
1. The assignment of or subrogation to a claim secured by a maritime lien entails the simulta-
neous assignment of or subrogation to such a maritime lien.
2. Claimants holding maritime liens may not be subrogated to the compensation payable to the
owner of the vessel under an insurance contract.
ARTICLE 11:
Notice of forced sale
1. Prior to the forced sale of a vessel in a State Party, the competent authority in such State Party
shall ensure that notice in accordance with this article is provided to:
(a) the authority in charge of the register in the State of registration;
(b) all holders of registered mortgages, “hypothèques” or charges which have not been issued
to bearer;
(c) all holders of registered mortgages. “hypotheques” or charges issued to bearer and all hol-
ders of the maritime liens set out in article 4, provided that the competent authority conducting
the forced sale receives notice of their respective claims; and
(d) the registered owner of the vessel.
2. Such notice shall be provided at least 30 days prior to the forced sale and shall contain either:
(a) the time and place of the forced sale and such particulars concerning the forced sale or
the proceedings leading to the forced sale as the authority in a State Party conducting the
proceedings shall determine is sufficient to protect the interests of persons entitled to notice;
or,
(b) if the time and place of the forced sale cannot be determined with certainty, the approxi-
mate time and anticipated place of the forced sale and such particulars concerning the forced
sale as the authority in a State Party conducting the proceedings shall determine is sufficient to
protect the interests of persons entitled to notice.
If notice is provided in accordance with subparagraph (b), additional notice of the actual time
and place of the forced sale shall be provided when known but, in any event, not less than
seven days prior to the forced sale.
3. The notice specified in paragraph 2 of this article shall be in writing and either given by regis-
tered mail, or given by any electronic or other appropriate means which provide confirmation
of receipt, to the persons interested as specified in paragraph 1, if known. In addition, the notice
shall be given by press announcement in the State where the forced sale is conducted and, if
deemed appropriate by the authority conducting the forced sale, in other publications.
ARTICLE 12:
Effects of forced sale
1. In the event of the forced sale of the vessel in a State Party, all registered mortgages, “hypothè-
ques” or charges, except those assumed by the purchaser with the consent of the holders, and
all liens and other encumbrances of whatsoever nature, shall cease to attach to the vessel,
provided that:
(a) at the time of the sale, the vessel is in the area of the jurisdiction of such State; and
(b) the sale has been effected in accordance with the law of the said State and the provisions of
349
article 11 and this article.
2. The costs and expenses arising out of the arrest or seizure and subsequent sale of the vessel
shall be paid first out of the proceeds of sale. Such costs and expenses include, inter alia, the
costs for the upkeep of the vessel and the crew as well as wages, other sums and costs referred
to in article 4, paragraph 1 (a), incurred from the time of arrest or seizure. The balance of the
proceeds shall be distributed in accordance with the provisions of this Convention, to the extent
necessary to satisfy the respective claims. Upon satisfaction of all claimants the residue of the
proceeds, if any, shall be paid to the owner and it shall be freely transferable.
3. A State Party may provide in its law that in the event of the forced, sale of a stranded or
sunken vessel following its removal by a public authority in the interest of sate navigation or
the protection of the marine environment, the costs of such removal shall be paid out of the
proceeds of the sales, before all other claims secured by a maritime lien on the vessel.
4. It at the time of the forced sale the vessel is in the possession of a shipbuilder or of a shiprepai-
rer who under the law of the State Party in which the sale takes place enjoys a right of retention,
such shipbuilder or shiprepairer must surrender possession of the vessel to the purchaser but is
entitled to obtain satisfaction of his claim out of the proceeds of sale after the satisfaction of the
claims of holders of maritime liens mentioned in article 4.
5. When a vessel registered in a State Party has been the object of a forced sale in any State
Party, the competent authority shall, at the request of the purchaser, issue a certificate to the
effect that the vessel is sold free of all registered mortgages, “hypothèques” or charges, except
those assumed by the purchaser, and of all liens and other encumbrances, provided that the
requirements set out in paragraph 1 (a) and (b) have been complied with. Upon production of
such certificate, the registrar shall be bound to delete all registered mortgages, “hypothèques”
or charges except those assumed by the purchaser, and to register the vessel in the name of
the purchaser or to issue a certificate of deregistration for the purpose of new registration, as
the case may be.
6. States Parties shall ensure that any proceeds of a forced sale are actually available and freely
transferable.
ARTICLE 13:
Scope of application
1. Unless otherwise provided in this Convention, its provisions shall apply to all seagoing vessels
registered in a State Party or in a State which is not a State Party, provided that the latter’s vessels
are subject to the jurisdiction of the State Party.
2. Nothing in this Convention shall create any rights in, or enable any rights to be enforced
against, any vessel owned or operated by a State and used only on Government non-commer-
cial service.
ARTICLE 14:
Communication between States Parties
For the purpose of articles 3, 11 and 12, the competent authorities of the States Parties shall be
authorized to correspond directly between themselves.
ARTICLE 15:
Conflict of conventions
Nothing in this Convention shall affect the application of any international convention provi-
ding for limitation of liability or of national legislation giving effect thereto.
ARTICLE 16:
Temporary change of flag
If a se seagoing vessel registered in one State is permitted to fly temporarily the flag of another
State, the following shall apply:
(a) For the purposes of this article, references in this Convention to the “State in which the vessel
is registered” or to the “State of registration” shall be deemed to be references to the State in
which the vessel was registered immediately prior to the change of flag, and references to “the
authority in charge of the register” shall be deemed to be references to the authority in charge
of the register in that State.
(b) The law of the State of registration shall be determinative for the purpose of recognition of
registered mortgages, “hypothèques” and charges.
(c) The State of registration shall require a cross-reference entry in its register specifying the State
whose Rag the vessel is permitted to fly temporarily; likewise, the State whose flag the vessel
is permitted to fly temporarily shall require that the authority in charge of the vessel’s record
350
specifies by a cross-reference in the record the State of registration.
(d) No State Party shall permit a vessel registered in that State to fly temporarily the flag of
another State unless all registered mortgages, “hypothèques” or charges on that vessel have
been previously satisfied or the written consent of the holders of all such mortgages, “hypothè-
ques” or charges has been obtained.
(e) The notice referred to in article 11 shall be given also to the competent authority in charge
of the vessel’s record in the State whose flag the vessel is permitted to fly temporarily.
(f) Upon production of the certificate of deregistration referred to in article 12 paragraph 5, the
competent authority in charge of the vessel’s record in the State whose flag the vessel is permit-
ted to fly temporarily shall, at the request of the purchaser, issue a certificate to the effect that
the right to fly the flag of that State is revoked.
(g) Nothing in this Convention is to be understood to impose any obligation on States Parties to
permit foreign vessels to fly temporarily their flag or national vessels to fly temporarily a foreign
flag.
ARTICLE 17:
Depositary
This Convention shall be deposited with the Secretary-General of the United Nations.
ARTICLE 18:
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open for signature by any State at the Headquarters of the United
Nations, New York, from 1 September 1993 to 31 August 1994 and shall thereafter remain
open for accession.
2. States may express their consent to be bound by this Convention by:
(a) signature without reservation as to ratification. acceptance or approval; or
(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance
or approval; or
(c) accession.
3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instru-
ment to that effect with the depositary.
ARTICLE 19:
Entry into force
1. This Convention shall enter into force 6 months following the date on which 10 States have
expressed their consent to be bound by it.
2. For a State which expresses its consent to be bound by this Convention after the conditions
for entry into force thereof have been met, such consent shall take effect 3 months after the
date of expression of such consent.
ARTICLE 20:
Revision and amendment
1. A conference of States Parties for the purpose of revising or amending this Convention shall
be convened by the Secretary-General of the United Nations at the request of one-third of the
States Parties.
2. Any consent to be bound by this Convention, expressed after the date of entry into force of an
amendment to this Convention, shall be deemed to apply to the Convention. as amended
ARTICLE 21:
Denunciation
1. This Convention may be denounced by any State Party at any time after the date on which
this Convention enters into force for that State.
2. Denunciation shall be effected by the deposit of an instrument of denunciation with the
depositary.
3. A denunciation shall take effect one year, or such longer period as may be specified in the ins-
trument of denunciation, after the receipt of the instrument of denunciation by the depositary.
ARTICLE 22:
Languages
This Convention is established in a single original in the Arabic, Chinese, English, French, Rus-
sian and Spanish languages, each text being equally authentic.
351
3a Afrique Dakar Jurinflot
3a Abidjan K&L Gates
3a Bangkok co., Ltd. Kennedys
3a Benin Kiveld International Lawyers
Advocacia Rocha Baptista L. G. Zambartas, LLC
Advokatfirma Ræder Da La Marine, Lester Aldridge LLP
Áelex Lahlou Zioui & Associés
Afridi & Angell Latrech Law Firm
Al Tamimi And Company Law Office Milošević
Apolo Law Offices Dr. F. Schwank
Arias, Fabrega & Fabrega Law Offices Macešic & Partners
Arizon Abogados SLP Law Offices of Monteblanco & Associates, LLC
Armando Henriques, Ana Cristina Pimentel & Associados, Law Firm Hansen | Thomassen | Vinther
Sociedade de Advogados, RL Lexcellence
Attorney-At-Law, Maritime and Commercial Law Office Liu & Co.
Baroudi & Associates Logos Legal Services
Batini Traverso & Associati Ls Lexjus Sinacta - Avvocati e Commercialisti
Ben Abderrahmane & Partners Maclay Murray & Spens LLP
BNG legal Malsco Law Office
Borenius Attorneys Ltd Marine Legal Adviser Co. Ltd
Bull, Housser & Tupper LLP Maritime Legal Bureau
Burgers Advocaten Max Law Office
Butler & Associates/Legal Marine (B&A) Melo & Melo Lawyers
C. Mathew & Co. (A partner of palitha Mathew & Company) Munro Leys
Carreira Pitti P.C. Attorneys Nabil Farag Law Firm
Castaner Law Offices P.S.C. Özkan Law Office
Chalos & Co, P.C. – International Law Firm Pacheco Coto
Cristea & Partners Law Office Parriswhittaker Counsel & Attorneys
Crump & Co International Maritime & Commercial Lawyers Penkov, Markov & Partners
CSBA, RL Phuoc & Partners
D’Hoine & Mackay Advocaten Pinsent Masons LLP
Dacheng Law Offices LLP Pohla & Hallmägi
Delacour Rahayu Partnership – in Association with JTJB
Delviso Avocats Ramanauskas IR Partneriai Law Firm
Dingli & Dingli Law Firm Remedy Law Firm
Dobrev & Lyutskanov Law Firm Sabatino Pizzolante Maritime & Commercial Attorneys
Felsberg Advogados Segelken & Suchopar
Fichte & Co Legal Consultancy Shepstone & Wylie
Hafnia Law Firm Suh & Co.
Henry, Samuelson & Co Swinnerton Moore LLP
Hihonor Law Firm Sycip Salazar Hernandez & Gatmaitan
Hincapie & Molina Consultores TGC Fora Law Office
Interlegal Law Firm Tomasello & Weitz
Isolas Vardikos & Vardikos
John Harris & Co. Venetucci & Asociados
Joseph Tan Jude Benny LLP Wilson Harle
Zabrautanu & Associates

10th - Ships Arrest in Prctice - 2016

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10th - Ships Arrest in Prctice - 2016

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Ship Arrests

Welcome to the tenth edition of Ship Arrests in Practice.

Thanks are due to the members-contributors of the www.shiparrested.com network as

The law is stated as at 1st December 2015.

Claims subject to ship arrest

1. Please give an overview of ship arrest practice in your country.

2. Which International Convention applies to arrest of ships in your country?

3. Is there any other way to arrest a ship in your jurisdiction?

4. Are these alternatives e.g. saisie conservatoire or freezing order?

5. For which types of claims can you arrest a ship?

6. Can you arrest a ship irrespectively of her flag?

7. Can you arrest a ship irrespectively of the debtor?

9. What is the position as regards Bareboat and Time-Chartered vessels?

10. Do your Courts require counter-security in order to arrest a ship?

17. What is the procedure to release a ship from arrest?

18. What type of security needs to be placed for the release?

21. How long does it take to release the ship?

22. Is there a procedure to contest the arrest?

24. Do the Courts of your country acknowledge wrongful arrest?

1. Please give an overview of ship arrest practice in your country.

1. Please give an overview of ship arrest practice in your country.

2. Which International Convention applies to arrest of ships in your country?

3. Is there any other way to arrest a ship in your jurisdiction?

4. Are these alternatives e.g. saisie conservatoire or freezing order?

5. For which types of claims can you arrest a ship?

Proprietary Maritime Claims

General Maritime Claims

A general Maritime Claim is:

6. Can you arrest a ship irrespectively of her flag?

7. Can you arrest a ship irrespectively of the debtor?

9. What is the position as regards Bareboat and Time-Chartered vessels?

10. Do your Courts require counter-security in order to arrest a ship?

17. What is the procedure to release a ship from arrest?

18. What type of security needs to be placed for the release?

19. Does security need to cover interest and costs?

20. Are P&I LOUs accepted as sufficient to lift the arrest?

21. How long does it take to release the ship?

22. Is there a procedure to contest the arrest?

1. Please give an overview of ship arrest practice in your country.

2. Which international Convention applies to arrest of ships in your country?

3. Is there any other way to arrest a ship in your jurisdiction?

4. Are these alternatives e.g. saisie conservatoire or freezing order?

5. For which types of claims can you arrest a ship?

6. Can you arrest a ship irrespectively of her flag?

7. Can you arrest a ship irrespectively of the debtor?

9. What is the position as regards Bareboat and Time-Chartered vessels?

10. Do your Courts require counter-security in order to arrest a ship?

17. What is the procedure to release a ship from arrest?

18. What type of security needs to be placed for the release?

19. Does security need to cover interest and costs?

20. Are P&I LOUs accepted as sufficient to lift the arrest?

21. How long does it take to release the ship?

24. Do the Courts of your country acknowledge wrongful arrest?

1. Please give an overview of ship arrest practice in your country.

2. Which International Convention applies to arrest of ships in your country?

3. Is there any other way to arrest a ship in your jurisdiction?

4. Are these alternatives e.g. saisse conservatoire or freezing order?

5. For which types of claims can you arrest a ship?

6. Can you arrest a ship irrespectively of her flag?