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Appendix 8 The Arrest Conventions of 1952 and 1999

Sarah C. Derrington, James M. Turner

From: The Law and Practice of Admiralty Matters (2nd Edition)

Sarah Derrington, James M Turner QC

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 03 August 2020

(p. 349) Appendix 8  The Arrest Conventions of 1952 and 1999

0.1  The International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships was done at Brussels on 10 May 1952 (the Arrest Convention). The primary purpose of the Arrest Convention was to protect the interests of both ship and cargo in avoiding interruption of the voyage by arrest for claims without any relationship to the operation of the ship.1 It was ratified or acceded to by 63 countries. The United Kingdom ratified the Arrest Convention on 18 March 1959.2 Given that the United Kingdom has given effect to the Arrest Convention, the English courts may look at the terms of the Convention to assist in the construction of the statute which currently gives effect to that Convention, namely the Supreme Court Act 1981.3

0.2  Australia has not ratified the Arrest Convention, however the provisions of the Admiralty Act 1988 are largely consistent with the provisions of the Convention. Canada has not ratified the Arrest Convention but has adopted some of its provisions into Canadian domestic law, notably the concept of sister-ship arrest.4 Hong Kong became a party to the Arrest Convention in 1963 and its provisions are given effect to by Sections 12A and B of the High Court Ordinance (Cap 4). New Zealand has not ratified the Arrest Convention but, like Australia, has given effect to most of its provisions in the Admiralty Act 1973. Singapore has not ratified the Arrest Convention but it is largely given effect to in the High Court (Admiralty Jurisdiction) Act, which confers admiralty jurisdiction on the High Court of Singapore.5 South Africa has not ratified the 1952 Convention and, in the Admiralty Jurisdiction Regulation Act 105 of 1983, has adopted a much broader admiralty jurisdiction than is provided for in the Arrest Convention.

0.3  During the debates leading up to the Arrest Convention, it had emerged that there were two fundamental differences between the common law and the civil law systems with respect to arrest. In civil law countries a vessel could be arrested as security for any claim, whether or not it was of a maritime nature. The arrest of a vessel was merely one element of a general power to arrest a debtor’s property. For example, the saisie conservatoire in the French system was applied to property other than ships. By contrast, in the common law systems a vessel could only be arrested in those limited number of circumstances where the claim gave rise to the right to proceed in rem. The second important difference between the two systems was the approach taken to wrongful arrest. In civil law systems, the arresting party could be held liable for damages suffered by the owner as a consequence of the arrest. The common law systems, however, restricted the owner to the cost of the security.6 The Arrest Convention was a compromise between the differing approaches in the common law and civilian systems to the arrest of ships. It also introduced the previously unknown concept of ‘sister-ship’ arrest.

(p. 350) 0.4  The Arrest Convention sets out a number of so-called ‘maritime claims’7 and provides that arrest may be made in respect of such claims but no others.8 The list of maritime claims included in the Arrest Convention is based on those contained in s 22 of the Supreme Court of Judicature (Consolidation) Act 1925. There is no general definition of what constitutes a ‘maritime claim’ and it appears that there was no discussion of the conceptual nature of a maritime claim in the conferences preceding the adoption of the Arrest Convention. The English position was simply adopted even without the inclusion of all the claims secured by a maritime lien under the Convention on Maritime Liens and Mortgages 1926.9 The distinction between the two Conventions needs to be understood. The Convention on Maritime Liens and Mortgages 1926, to which the United Kingdom has never become a party, deals with the privileged character of certain claims and provides that certain claims shall be paid with priority.10 By contrast, the Arrest Convention was designed to establish in respect of which claims it was possible to effect an arrest whilst saying nothing about the ultimate priority of those claims. The remarks of the French delegate, Mr de Grandmaison, are helpful in illuminating the difference between maritime liens and statutory actions in rem. He said:

… the Maritime Liens and Mortgages Conventions dealt with the privileged character of certain claims and stated that certain claims shall be paid with priority over certain other claims. But today that is not the question. The question is to know for which claim it will be permitted to the Court to effect the conservative arrest of a ship, and that simply gives to the claimant a security for the future. Therefore one has here not to look for a privileged claim but for a maritime claim, since the sacrifice that the continentals make is to waive the right of arrest for non maritime claims.11

0.5  The Arrest Convention provides that either the ship in respect of which the maritime claim arose or other ships in the same ownership may be subject to arrest. Where a ship is bare-boat chartered, or in other cases where the owner is not liable for the claim, other ships in the same ownership as the bareboat charterer or other person liable may be arrested.12 The Arrest Convention provides that ships cannot be arrested twice.13 It also provides that ships may only be arrested under judicial authority14 and makes provision for the release of ships on provision of security.15 All matters of procedure and questions concerning liability for wrongful arrest are required to be dealt with according to the law of the State in which the ship is arrested.16 The Arrest Convention makes provision for rules relating to jurisdiction in respect of the merits of the case and the recognition of foreign judgments with respect to any security given to obtain the release of the ship.17 Significantly, the Arrest Convention provides expressly that it is not to be construed as creating rights of action or maritime liens which do not exist under the laws of the forum in which the ship is arrested.18

(p. 351) 0.6  The International Convention on the Arrest of Ships 1999 (the 1999 Convention) was done at Geneva on 12 March 1999. The purpose of the Convention was to update and refine the Arrest Convention, partly as a consequence of the adoption of the new Convention on Maritime Liens and Mortgages in 1993. It entered into force on 14 September 2014, the date by which ten States had expressed their consent to be bound by it. At the date of writing, only eleven States have become party to the Arrest Convention 1999.19

0.7  It is argued that the 1999 Convention has clarified a number of problems of interpretation with the Arrest Convention and so it is difficult to understand why the 1999 Convention is not attracting additional ratifications.20 One reason for the lack of ratifications from European States, however, may be that, following the transfer by the Treaty of Nice of authority to the European Union in matters of private international law, this is a Convention to which they can no longer subscribe individually. Generally, the scope of application of the 1999 Convention is broader than that of its predecessor. The list of maritime claims in the 1999 Convention is significantly wider and incorporates claims for environmental damage under art 1(d) of the Salvage Convention,21 wreck removal, ship management services, insurance premia and calls, commissions and brokerages, ship sale contracts. Further, it expands the scope of certain existing heads of claim so as to embrace claims for ‘special compensation’ in relation to salvage claims, agreements relating to the carriage of passengers, claims for ‘provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance’ in the context of ‘goods and material claims’, claims for ‘port canal, dock, harbour and other waterway dues’ within the scope of claims for ‘port dues’, ‘costs of repatriation and social insurance contributions’ within claims for wages and claims for construction, reconstruction, repairs, equipping or converting the ship. The definition of ‘arrest’ has been expanded to include ‘a restriction on removal of a ship’. Further, art 8 expands the provisions of the Convention from seagoing ships to all ships regardless of whether the ship arrested is flying the flag of a State Party.

0.8  Article 2 of the 1999 Convention makes clear that only court authorized arrest is possible and that a choice of law or forum clause is of no effect in relation to the jurisdiction where the arrest occurs. Pursuant to art 3, the link required between a maritime claim and the person owning, operating or demise chartering the ship is emphasized so as to ensure that a ship is not arrested in relation to a claim that is not enforceable against that ship. However, the time at which ownership is relevant pursuant to the Convention differs from the time at which it is relevant in English law. Article 3(1) provides that arrest is permissible if the person who owned the ship at the time when the maritime claim arose is the owner of the ship when the arrest is affected. In English law, the relevant time is when the action in rem is brought. The sister-ship provision remained the same as in the Arrest Convention despite support from the United Kingdom, Australia, Canada, Japan, The Netherlands and the Comité Maritime International that the South African concept of ‘associate-ship arrest’ be adopted.22

0.9  Article 4 mandates release of a ship where ‘sufficient security has been provided in a satisfactory form’ and provides that the State courts will determine whether or not the security is sufficient. Article 5 allows for rearrest of the same ship or other ships to supplement security already provided where the security proves inadequate, where the guarantor is unlikely to fulfil its obligations or where the vessel is released in circumstances effectively outside the control of the claimant.

0.10  Article 6 gives the court discretion as to whether to require security from the claimant as a condition for arrest in case it be determined subsequently that the arrest was ‘wrongful or unjustified’ or that excessive security was demanded and provided. These latter two provisions represent a significant departure from the existing position in the law of the United Kingdom. Article 7 provides that the arresting court has jurisdiction on the merits unless there is a valid jurisdiction or arbitration clause and that the arresting State is obliged to recognize a final decision on the merits by another State by releasing the security to the successful claimant.(p. 352)

A Comparison between the 1952 and 1999 Conventions

Definitions

1952

1999

Article 1

Article 1

1. “Maritime Claim”

1. “Maritime Claim”

(a) damage caused by any ship either in collision or otherwise;

(a) loss or damage caused by the operation of the ship;

(b) loss of life or personal injury occurring caused by any ship or occurring in connexion with the operation of any 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;

(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 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);

(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 abandoned ship and maintenance of its crew;

(d) any agreement relating to the use or hire of the ship, whether by charter party or otherwise;

(f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;

(e) any agreement relating to the carriage of goods in any ship whether by 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;

(f) loss of or damage to goods including baggage carried in any ship; board a ship;

(h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;

(g) general average;

(i) general average;

(h) bottomry;

(i) towage;

(j) towage;

(j) pilotage;

(k) pilotage;

(k) goods or materials wherever supplied to a ship for her operation or maintenance;

(l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;

(l) construction, repair, or equipment of any ship or dock charges and dues;

(m) construction, reconstruction, repair, converting or equipping of the ship;

(n) port, canal, dock, harbour and other waterway dues and charges;

(m) wages of Masters, Officers, or crew;

(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 contributions payable on their behalf;

(p) disbursements incurred on behalf of the ship or its owners;

(n) Master’s disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner;

(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;

(o) disputes as to the title or ownership of any ship;

(s) any dispute as to ownership or possession of the ship;

(p) disputes between co-owners of any ship as to the ownership, possession, employment or earnings of that ship;

(t) any dispute between co-owners of the ship as to the employment or earnings of the ship;

(q) the mortgage or hypothecation of any 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”

2. “Arrest”

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.

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 judgment or other enforceable instrument.

3. “Person”

3. “Person”

Includes individuals, partnerships and bodies corporate, Governments, their Departments, and Public Authorities.

Means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

4. “Claimant”

4. “Claimant”

A person who alleges that a maritime claim exists in his favour.

Any person asserting a maritime claim.

5. “Court”

Any competent judicial authority of a State.

(p. 353) (p. 354)

Powers of arrest

1952

1999

Article 4 & 2

Article 2

  • A ship may only be arrested under the authority of a Court or of the appropriate judicial authority of the Contracting State in which the arrest is made.

  • 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.

  1. 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. 2.  A ship may only be arrested in respect of a maritime claim but in respect of no other claim.

  3. 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. 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.

(p. 355)

Exercise of right of arrest

1952

1999

Article 3

Article 3

  1. 1.  Subject to the provisions of § 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. 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. 3.  [see below under Right of Rearrest and Multiple Arrest]

  4. 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 a 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 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. This provision does not apply to claims in respect of ownership or possession of a ship.

  1. 1.  Arrest is permissible of any ship in respect of which a maritime claim is asserted if:

    1. (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

    2. (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

    3. (c)  the claim is based upon a mortgage or a “hypothèque” or a charge of the same nature on the ship; or

    4. (d)  the claim relates to the ownership or possession of the ship; or

    5. (e)  the claim is against the owner, demise charterer, manager or operator of the ship and is secured by a maritime lien which is granted or arises under the law of the State where the arrest is applied for.

  2. 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:

    1. (a)  owner of the ship in respect of which the maritime claim arose; or

    2. (b)  demise charterer, time charterer or voyage charterer of that ship.

    This does not apply to claims in respect of ownership or possession of a ship.

  3. 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.

(p. 356)

Release from arrest

1952

1999

Article 5

Article 4

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, save in cases in which a ship has been arrested in respect of any of the maritime claims enumerated in Article 1(1)(0) 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 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.

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.

2. In the absence of agreement between the parties as to the sufficiency and form of the security, the Court shall determine its nature and the amount thereof, not exceeding the value of the arrested ship.

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 limitation of liability of the owner of the ship.

3. Any request for the ship to be released upon security being provided shall not be construed as an acknowledgment of liability nor as a waiver of any defence or any right to limit liability.

  1. 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.

  2. 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 ordered to be released to the extent that the total amount of security provided in the two States exceeds:

  3. (a)  the claim for which the ship has been arrested, or

  4. (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.

6. Where, pursuant to paragraph 1 of this article, security has been provided, the person providing such security may at any time apply to the Court to have that security reduced, modified, or cancelled.

(p. 357)

Right of rearrest and multiple arrest

1952

1999

Article 3 (3)

Article 5

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 one of such jurisdictions, or bail or other security has been given in such jurisdiction either to release the ship or to avoid a threatened arrest, any subsequent arrest of the ship or any ship in the same ownership by the same claimant for the same 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.

  1. 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 respect of the same maritime claim unless:

  2. (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

  3. (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

  4. (c)  the ship arrested or the security previously provided was released either:

  5. (i)  upon the application or with the consent of the claimant acting on reasonable grounds, or

  6. (ii)  because the claimant could not by taking reasonable steps prevent the release.

  7. 2.  Any other ship which would otherwise be subject to arrest in respect of the same maritime claim shall not be arrested unless:

  8. (a)  the nature or amount of the security already provided in respect of the same claim is inadequate; or

  9. (b)  the provisions of paragraph 1(b) or (c) of this article are applicable.

  10. 3.  “Release” for the purpose of this article shall not include any unlawful release or escape from arrest.

(p. 358)

Protection of owners and demise charterers of arrested ships

1952

1999

Article 6

Article 6

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:

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.

  1. (a)  the arrest having been wrongful or unjustified; or

  2. (b)  excessive security having been demanded and provided.

  3. 2.  The Courts of the State in which an arrest has been effected shall have jurisdiction to determine 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:

The rules of procedure relating to the arrest of a ship, to the application for obtaining the authority referred to in Article 4, and 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.

  1. (a)  the arrest having been wrongful or unjustified; or

  2. (b)  excessive security having been demanded and provided.

  3. 3.  The liability, if any, of the claimant in accordance with paragraph 2 of this article shall be determined by application of the law of the State where the arrest was effected.

  4. 4.  If a Court in another State or an arbitral tribunal is to determine the merits of the case in accordance 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. 5.  Where pursuant to paragraph 1 of this article security has been provided, the person providing such security may at any time apply to the Court to have that security reduced, modified or cancelled.

(p. 359)

Jurisdiction on the merits of the case

1952

1999

Article 7

Article 7

  1. 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:

  2. (a)  if the claimant has his habitual place of residence or principal place of business in the country in which the arrest was made;

  3. (b)  if the claim arose in the country in which the arrest was made;

  4. (c)  if the claim concerns the voyage of the ship during which the arrest was made;

  1. 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. 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. 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:

  4. (a)  does not have jurisdiction to determine the case upon its merits; or

  5. (b)  has refused to exercise jurisdiction in accordance with the provisions of paragraph 2 of this article,

    such a 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.

  1. (d)  if the claim arose out of a collision or in circumstances covered by Article 13 of the International Convention for the unification of certain rules of law with respect to collisions between vessels, signed at Brussels on 23 September 1910;

  2. (e)  if the claim is for salvage;

  3. (f)  if the claim is upon a mortgage or hypothecation of the ship arrested.

  1. 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 arrest is made shall fix a time within which the claimant shall bring an action before a Court having such jurisdiction.

  2. 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 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.

  • 5. This Article shall not apply in cases covered by the provisions of the revised Rhine Navigation Convention of 17 October 1868.

  1. 4.  If proceedings are not brought within the period of time ordered in accordance with paragraph 3 of this article then the ship arrested or the security provided shall, upon request, be ordered to be released.

  2. 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:

  3. (a)  the defendant has been given reasonable notice of such proceedings and a reasonable opportunity to present the case for the defence; and

  4. (b)  such recognition is not against public policy (ordre public).

  5. 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.

(p. 360) (p. 361)

Application

1952

1999

Article 8

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.

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. 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.

2. This Convention shall not apply to any warship, naval auxiliary or other ships owned or operated by a State or 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 departments, or in any public authority, or in any dock or harbour authority, under any international 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 an international convention 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 procured 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.

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 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 otherwise, such third party shall, for the purposes of this Convention, be deemed to have the same habitual residence or principal place of business as the original claimant.

(p. 362)

Non-creation of maritime liens

1952

1999

Article 9

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 has seisin of the case, nor as creating any maritime liens which do not exist under such law or under the Convention on Maritime Liens and Mortgages, if the latter is applicable.

Nothing in this Convention shall be construed as creating a maritime lien.

Reservations

1952

1999

Article 10

Article 10

  • The High Contracting Parties may at the time of signature, deposit of ratification or accession, reserve

  1. (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;

  1. 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:

  2. (a)  ships which are not seagoing;

  3. (b)  ships not flying the flag of a State Party;

  1. (b)  the right not to apply the first paragraph of article 3 to the arrest of a ship, within their jurisdiction, for claims set out in Article 1, paragraph (q).

  1. (c)  claims under article 1, paragraph 1(s).

  2. 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 Convention, 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.

(p. 363)

Depositary

1999

Article 11

This Convention shall be deposited with the Secretary-General of the United Nations.

Signature, ratification, acceptance, approval and accession

1952

1999

Article 12

Article 12

  1. 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. 2.  States may express their consent to be bound by this Convention by:

    1. (a)  signature without reservation as to ratification, acceptance or approval; or

    2. (b)  signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

    3. (c)  accession.

  3. 3.  Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the depositary.

(p. 364)

States with more than one system of law

1999

Article 13

  1. 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, 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.

  1. 2.  Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

  2. 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 territorial unit within that State and the law of the relevant territorial unit of that State.

Entry into force

1999

Article 14

  1. 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. 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.

(p. 365)

Revision and amendment

1999

Article 15

  1. 1.  A conference of State 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 State Parties.

  2. 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.

Denunciation

1999

Article 16

  1. 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. 2.  Denunciation shall be effected by deposit of an instrument of denunciation with the depositary.

  3. 3.  A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after the receipt of the instrument of denunciation by the depositary.

Languages

1999

Article 17

This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

(p. 366)

Footnotes:

1  Report of the Chairman of the CMI International Sub-Committee to the Lisbon Conference; The Travaux Préparatoires to the 1999 Convention in F Berlingieri, Berlingieri on Arrest of Ships (3rd edn, 2000) 385.

2  Neither Australia, Canada, New Zealand, Singapore nor South Africa have ratified the 1952 Convention. Hong Kong ratified it on 29 March 1963.

3  The Banco [1971] 1 All ER 524, 532, [1971] P 137, 152; The Eschersheim [1976] 1 All ER 920, [1976] 1 WLR 430, [1976] 2 Lloyd’s Rep 1; The Deichland [1990] 1 QB 361, [1989] 2 All ER 1066, [1989] 2 Lloyd’s Rep 113.

4  Federal Courts Act RSC 1985, c.F-7, ss 22 and 43; Supreme Court Act RSBC 1996 c.443.

5  Chapter 123, 15 January 1962 as amended.

6  F Berlingieri, Berlingieri on Arrest of Ships (5th edn, 2011) 1.11.

7  Art 1.

8  Art 2.

9  The Deichland [1990] 1 QB 361, [1989] 2 All ER 1066, [1989] 2 Lloyd’s Rep 113; F Berlingieri, Berlingieri on Arrest of Ships (5th edn, 2011) 3.01.

10  The 1926 Convention had been updated by the Convention on Maritime Liens and Mortgages 1967 but this Convention never achieved the requisite number of ratifications and never entered into force. A further attempt was made and the Convention on Maritime Liens and Mortgages 1993 was done at Geneva on 6 May 1993. It entered into force on 5 September 2004. The following countries are parties to that Convention: Ecuador, Estonia, Monaco, Nigeria, Russian Federation, Saint Vincent and the Grenadines, Spain, Syrian Arab Republic, Tunisia, Ukraine, and Vanuatu.

11  CMI Bulletin No 105, p 225; Travaux Préparatoires p 282 in F Berlingieri, Berlingieri on Arrest of Ships (5th edn, 2011) 3.01, fn 8.

12  Art 3.

13  Art 3.

14  Art 4.

15  Art 5.

16  Art 6.

17  Art 7.

18  Art 9.

19  Albania, Algeria, Benin, Bulgaria, Congo, Ecuador, Estonia, Latvia, Liberia, Spain, and the Syrian Arab Republic.

20  F Berlingieri, ‘The 1952 Arrest Convention Revisited’ [2005] LMCLQ 327, 337.

21  International Convention on Salvage 1989.

22  Travaux Préparatoires in F Berlingieri, Berlingieri on Arrest of Ships (5th edn, 2011) Appendix VII.