DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

MARITIME LAW

INTERNATIONAL CONVENTION ON ARREST OF SHIPS

Name of the Faculty: Dr. Arvindnath Tripathi

Name of the Student: Arthi Gaddipati

Roll No: 19LLB102

Semester VII
 ACKNOWLEDGEMET

I would like to express my gratitude and heartfelt appreciation to my teachers who gave me the
golden opportunity to do this wonderful project on this interesting topic; which helped me
learn, analyze and explore this specific field of subject by digging deeper into the never ending
mine of knowledge through an extensive and thorough research.

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 INTRODUCTION

On “12th March 1999, the United Nations/International Maritime Organization Diplomatic

Conference (hereinafter UN/IMO Diplomatic Conference) unanimously adopted the
International Convention on Arrest of Ships, 1999 (hereinafter the 1999 Arrest Convention).
The representatives from around 100 nations as well as about 20 intergovernmental and non-
governmental organizations participated at the UN/IMO Diplomatic Conference, which was
held in Geneva under the auspices of the United Nations Conference on Trade and
Development (UNCTAD). The 1999 Arrest Convention entered into force on 14 September
2011 upon ratification/accession by ten States (article 14).

The subject of ship arrest is of paramount importance to the international shipping and trading
community. It is also an area that traditionally has been subject of divergent approaches by
different legal systems. Civil law systems permitted arrest for any claim against the owner of
the ship even if it was not of maritime nature; while in common law a ship could only be
arrested for a very limited number of maritime claims.

Moreover, the interests of different sectors of the industry also vary considerably with regard
to the subject. While the interest of owners of ships and cargo lie in ensuring that international
trading is not interrupted by unjustified arrest of a ship, the claimants are primarily interested
in being able to obtain security for the enforcement of their legitimate claim by way of arrest.

The aim of the 1999 Arrest Convention is to provide a more modern successor to the 1952
Brussels Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going
Ships (hereinafter 1952 Convention). The main objective of the 1952 Convention was to
establish an international legal instrument that would reconcile the different legal systems,
avoiding arrest of a ship for claims unrelated to its operation, protecting interests of the relevant
parties. The Convention succeeded in reconciling the differences between civil law and
common law systems and striking a balance between different interests involved.

However, since its adoption in 1952, important developments have occurred in the field of
international shipping giving rise to the need for a new international instrument that takes
account of the developments of the past few decades reflecting the new features of the shipping
industry.”

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INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES
RELATING TO THE ARREST OF SEA-GOING SHIPS OF 1952

This “convention aims at providing legal instrument promoting trade. The convention deals
with the possibility for a Contracting State to detain a ship by a judicial process in order to
secure a maritime claim (art.1). The convention applies to any vessel flying the flag of a
Contracting State in the jurisdiction of any Contracting State (art.8). So, a ship flying flag of a
Contracting Parties may be arrested in the jurisdiction of any of Contracting Parties. The rights
empowered by a State, public Authorities or dock or harbor authorities still exist under
domestic regulations

The International Convention on the Arrest of Ships 1999, the successor to the 1952
International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-
going Ships, came into force on 14 September 2011. So far only 10 states have chosen to ratify
this convention and these are Albania, Algeria, Benin, Bulgaria, Ecuador, Estonia, Latvia,
Liberia, Spain and the Syrian Arab Republic. However, Denmark and Norway have signed up
to the new Arrest Convention and so may choose to ratify it in the future.

The new Convention will only take effect within the jurisdictions of those 10 States and will
apply to any ship within the jurisdiction of a signatory State. Therefore, ships flying the flag of
a State which has not ratified the 1999 Convention will be subject to the Convention when in
the waters of a State which has. Although Spain had reserved the right not to apply the rules of
the 1999 Convention to ships which do not fly the flag of another 1999 Convention State, in
late August 2011, Spain clarified that the 1999 Convention will apply irrespective of whether
the vessel to be arrested flies the flag of a Convention State.

The 1999 Arrest Convention was designed to update and address the identified deficiencies of
the 1952 Arrest Convention and aims to strike a fairer balance between the interests of the ship
owner and claimant. The new Arrest Convention provides further unification as it clarifies
some issues which are currently left to local law in the 1952 Arrest Convention. These
amendments have resulted in the 1999 Arrest Convention differing significantly from the 1952
Arrest Convention in several important ways. It is therefore important to understand the
implications of the application of the 1999 Arrest Convention and its diverse approach to
enforcing maritime claims.”

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 DEFINITIONS AND CATEGORIES OF MARITIME CLAIMS

Whilst the list of maritime claims in the 1952 Convention is closed, the list in the 1999
Convention contains one potentially open category of claim: Article 1(d) - environmental
damage. This subparagraph lists examples of the type of damage which it envisages and
concludes "...and damage, costs, or loss of a similar nature...".

Under “the 1952 Convention there are 17 categories of maritime claim that can give rise to a
right of arrest. Under the 1999 Convention there are 22 categories. Six new heads of arrest have
been added and one (bottomry) removed. Some of the most significant new maritime claims to
be included are: damage or threat of damage to the environment, clean-up costs and reasonable
steps taken to avoid environmental damage; wreck removal; port, canal and pilotage dues;
vessel sale and purchase contract disputes; insurance premiums including mutual insurance
calls payable on behalf of ship owners or demise charterers; commissions, brokerages, agency
fees payable in respect of the ship; disputes arising from a contract for sale of the ship.”

POWERS AND EXERCISE OF RIGHT OF ARREST

Article 2 “of the 1999 Arrest Convention clarifies that a ship may be arrested for the purpose
of obtaining security even when a jurisdiction or arbitration clause in the applicable contract
relates to a different state to the one in a vessel is arrested. The new convention also makes it
clear that arrest can be executed so as to satisfy a judgment or arbitration award. Importantly,
the new Arrest Convention allows a claimant to arrest a vessel whether or not it is flying the
flag of a convention state, unlike the 1952 Arrest Convention which states that the arrest of a
vessel is only permitted if it is flying the flag of a state which is party to the convention (but
see above in relation to Spain). In practice though, local law will often have a bearing on the
ability of a claimant to arrest.

In terms of jurisdiction to determine the merits of the claim, the 1999 Arrest Convention makes
a clear statement that the court where an arrest has been affected, or security provided to obtain
the release of a vessel from arrest, has jurisdiction to determine the case on its merits, unless
the parties validly agree or have agreed to submit the dispute to another court or arbitration.
The new Arrest Convention has also amended the rules on the exercise of the right to arrest a
vessel involving a maritime lien: The new Arrest Convention now only permits arrest for” a
maritime lien which is granted or arises under the law of the State where the arrest is applied
for, rather than for any maritime lien recognised under that law.

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 LIABILITY FOR WRONGFUL OR UNJUSTIFIED ARREST OR EXCESSIVE
SECURITY

Article “6 of the 1999 Convention provides additional protection for the owners and demise
charterers of arrested ships with regards to wrongful arrest of a ship. Although the 1952 Arrest
Convention does contain a wrongful arrest provision so as to prevent arrests brought about due
to bad faith etc., the 1999 Arrest Convention goes further by allowing damages to be assessed
and countersecurity to be imposed in respect of unjustified (erroneous) arrest.

Under Article 6 (1) of the new Arrest Convention, the arresting court is empowered to impose
on the claimant the obligation to give countersecurity for losses that may be incurred by the
ship owner as a result of the arrest if the claimant is found liable. In contrast, countersecurity
is not specifically covered in the 1952 Arrest Convention and it is left to local law to determine
whether this is necessary. The new Arrest Convention does, however, allow the owner, as well
as the provider of security to apply at any time to the local court to have the security reduced,
modified or cancelled. The 1952 Arrest Convention provides that a review of the amount of
security will only be possible if local law provides for it.”

TEMPORARILY ARREST OF THE SHIP AS A METHOD OF SECURING

MARITIME CLAIMS

Definition “of the arrest of the ship, as stipulated in Article 1 of the Convention, is that 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. This type of arrest of
the ship in the theory of the Continental Maritime Law is known as the conservative ship arrest,
while arrest of the ship on the basis of an enforceable court decision is known as the court
arrest. Temporarily arrest of the ship is solely related to maritime claims and can only be
pronounced by the court.

This does not affect any rights or powers vested in any government, that is any public authority,
or in any dock or harbor authority, under any international convention or under any domestic
laws or regulations, to detain or otherwise prevent from sailing any ship within their
jurisdiction. Arrest is the security measure that is stipulated in favor of a creditor of maritime
claims and its basis represents a personal obligation of the debtor - the owner of the ship in

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question under certain conditions, and the charterer, or other person responsible for the claim
against that ship, though is not its owner1.

This connection between the maritime claim and the entity responsible for its settlement is
reflected in the legal possibility that the Convention provides to a creditor, that for the claim
arose out against the ship of the debtor, the creditor may arrest any other ship owned by him,
considered to be the ship of the same owner if all its parts belong to the same person.

The exception to this broadly established right to seize another ship belonging to the same
owner is made in three cases: disputes as to the title to or ownership of any ship, joint
ownership, possession and in relation to the rights of creditors under the mortgage or
hypothecation of any ship. The creditor in such cases can solely arrest the ship against which
the specific claim arose out.2”

DETERMINING THE NUMBER AND TYPES OF MARITIME LIENS

The basic “starting principle is that ships may be only be arrested in respect of securing
maritime claims. The Convention explicitly lists in its first Article which claims are considered
maritime claims. Further, the Convention emphasizes that maritime claims are considered those
ones arising out of one of the following causes:

 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;
 agreement relating to the use or hire of any ship whether by charterparty or otherwise;
 agreement relating to the carriage of goods in any ship whether by charterparty or
otherwise;
 loss of or damage to goods including baggage carried in any ship;
 general average;
 bottomry;

1
M. Grigoli, Grigoli M., Diritto Della Navigazione, Тоrino, 1982.str. 495., P. Manca, The Italian Code of
Navigation
2
This possibility is stipulated stipulated in Article 3, items 1-4 of the Convention, given that excluded claims
from seizure of another ship belonging to the same owner are listed in items o, p and q Article1, paragraph 1
of the 1952 Convention.

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  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; (m) wages of
Masters, Officers, or crew;
 Master’s disbursements, including disbursements made by shippers, charterers or agent
on behalf of a ship or her owner;
 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;
 the mortgage or hypothecation of any ship.”

Even “before the Convention came into force there was no dispute in legislation and court
practice of certain maritime countries that the ships may only be arrested for maritime claims.
However, when it is needed to determine what is considered a maritime claim, there are
basically two approaches. One is that such claims are explicitly enumerated and that out of that
enumeration there are no other claims, it is so-called closed list of maritime claims. Another
approach is not to enumerate the claims, that is, in addition to possibly enumerated claims,
courts can also recognize other claims as maritime ones. This approach is known as open-ended
list of maritime claims3.

CONSEQUENCES OF SHIP ARREST

Where a ship is arrested under an action in rem, a number of important consequences arise.

a) The ship comes under the custody of the Admiralty court. It cannot be moved without
the court’s permission and may also be immobilised or prevented from sailing.”
b) The arrest constitutes the ship or other property as security in the hands of the court for
the claim and this security cannot be defeated by the subsequent insolvency of the
owner of the arrested property4. In The Cella, Fry L.J. stated thus: “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”5.In the same

3
Tetley states that the Great Britain applies the principle of closed, and Canada the principle of open-ended
list of maritime claims
4
Messon, note 5 at 118
5
(1888) 13 P.D. 82

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 vein, Lopes L.J. observed: “…that 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”
c) The arrest of ship establishes the jurisdiction on the merits6. This arises from the
practical need to be able to satisfy a claimant at the jurisdiction where he obtained the
security. Otherwise, the situation may arise where the security obtained would not be
transferable between the court that has jurisdiction on the merits and the court of the
other jurisdiction, thus rendering the security obtained ineffective.
d) Under arrest, the ship becomes financial security for the claimant in rem. This means
that unless the shipowner puts up security in order to have the ship released from arrest,
the ship will be sold and the claimants will be paid out of the proceeds of sale.
e) The arrest of ships breaks the time bar for maritime liens.

INFLUENCE OF THE 1999 ARREST CONVENTION

The “1999 Arrest Convention clearly presents significant improvements over its predecessor.
It addresses the shortcomings of the 1952 Convention, both in terms of substance and drafting.
The 1999 Arrest Convention is far more clearly drafted than the 1952 Convention, which would
facilitate its implementation and application at the national level. It would also assist in
reducing disputes concerning the cases in which ships might be arrested or released from arrest.

The 1999 Arrest Convention is closely aligned with the 1993 International Convention on
Maritime Liens and Mortgages (MLM). Arrest being the means of enforcing maritime liens
and mortgages, it was essential to ensure consistency and alignment in concepts and
terminology with the 1993 MLM Convention.

While the 1999 Arrest Convention is an entirely independent and self-standing legal
instrument, together with the 1993 MLM Convention, they establish a complete set of legal
principles for the recognition and enforcement of maritime liens and claims. The 1999 Arrest
Convention was prepared with active participation of all major trading nations including
developing countries. It is hoped that the 1999 Arrest Convention will achieve its intended
objective of promoting international uniformity on such an important area of maritime law. “

6
The Anna H (1995) 1 Lloyd’s Rep 11 (C.A.)

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 CONCLUSION

The “1999 Arrest Convention has sought to establish a more encompassing approach to arrest
and has broadened the scope for arrest by adding to the number of maritime claims. It remains
to be seen if the new Arrest Convention will be widely applied. Further though, and perhaps
more significantly, since each country adopting the 1999 Convention will do so individually
there may be differences in the application of the convention. To the extent that this proves to
be the reality, this will not be a welcome development.”

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