Contents. v vii ix xx vii xxix xxxi xli xlviii liv lv

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1 Contents Foreword Acknowledgments Glossary Introduction Table of Authors Table of Cases Table of Legislation Table of Conventions Table of CMI Conferences Table of Conventions Travaux Preparatoires v vii ix xx vii xxix xxxi xli xlviii liv lv 1. HISTORY OF THE CONVENTIONS History of the 1952 Arrest Convention 1. The CMI Conference of 1930 in Antwerp 1 2. The preparatory work for a draft Convention on arrest of ships 2 3. The CMI Conferences of 1933 in Oslo and of 1937 in Paris 4 4. The CMI Conferences of 1947 in Antwerp, of 1949 in Amsterdam and of 1951 in Naples 5 5. The Brussels Diplomatic Conference, 2-10 May History of the 1999 Arrest Convention 6. The work of the CMI 7 7. The work of the Joint International Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE) 8 8. The Geneva Diplomatic Conference, 1-12 March IMPLEMENTATION OF THE CONVENTIONS BY CONTRACTING STATES 9. Introduction Methods of implementation 13 Implementation of the 1952 Arrest Convention 10. How the Convention has been implemented 14 (a) States that have given force of law to the Convention 15 (b) States that have incorporated the provisions of the Convention (or some of them) into their national law 24 Implementation of the 1999 Arrest Convention 11. Introduction 12. States that have given force of law to the xix

2 13. States that have incorporated the provisions of the (or some of them) into their national law 47. THE MARITIME CLAIMS 14. The chapeau of the article 49 Article 1(1) of the 1952 and of the s 15. The individual maritime claims Damage caused by a ship (a) (a) Loss of life (b) (b) Salvage (c) (c) Pollution damage (d) Wreck removal (e) Use or hire of a ship (d) (f) Carriage of goods (and passengers) (e) (g) Loss or damage to goods and baggage (f) (h) General average (g) (i) Bottomry (h) Towage (i) G) Pilotage (j) (k) 1999 t 73 Supplies (k) (1) Construction and repair (1) (m) Port and similar dues (n) Wages (m) (o) Disbursements (n) (p) xx

3 Insurance premiums (q) Commissions, brokerage and agency fees (r) Disputes as to ownership (o) (s) Disputes between co-owners (p) (t) Mortgage or hypotheque (q) (u) Sale of the ship (v) DEFINITIONS OF "ARREST", "PERSON", "CLAIMANT" AND "COURT" 16. Definition of arrest Definition of person Definition of claimant Definition of court 103 CLAIMS IN RESPECT OF WHICH A SHIP MAY BE ARRESTED 20. Arrest in respect of maritime claims ARREST OR DETENTION BY PUBLIC AUTHORITIES 21. Introduction International Conventions and agreements 23. National laws Ships detained or prevented from sailing by public authorites Ships under arrest adversely affecting the use of the port installations ARREST OF A SHIP READY TO SAIL 26. When arrest is permitted Deletion of the provision and its implications 120 xxi

4 ARREST OF THE SHIP IS ASSERTED CONTENTS IN RESPECT OF WHICH THE CLAIM 28. Introduction 29. Appurtenances not owned by the owner of the ship 30. Relation between the claim and a particular ship 31. Relation between the person liable and the ship (a) Claims against the owner of the ship (Article 3(1)) (Article 3(1)) (b) Claims against the demise charterer of the ship (Article 3(4)) (Articles 3(1 )(b) and 3(3)) (c) Claims based upon a mortgage, "hypotheque" or charge on the ship (Article l(l)fa)) (Article 3(l)(c)) (d) Claims relating to the ownership or possession of the ship (Article l(l)(o) and (p)) (Article 3(l)(d)) (e) Claims secured by a maritime lien (Article 3(1)) (Article 3(1)(e)) ARREST OF "SISTER" SHIPS Article 3(1), (2) and (4) of the 32. Introduction 33. When ships must be deemed to be in the same ownership Article 3(2) of the 34. The sister ship rule under, the ARREST OF ASSOCIATED SHIPS 35. Is piercing the corporate veil prohibited by the Convention? 36. A review of national jurisprudence 37. Conclusions 38. State owned ships 39. The U.K. proposal on associated ships consequences of its rejection ' WHEN ARREST OF "SISTER" SHIPS NOT PERMITTED 40. The maritime claims in respect of which the prohibition applies ARREST OF SHIPS OWNED BY THE CHARTERER IN RESPECT OF CLAIMS OF THE OWNER OF THE CHARTERED SHIP 41. An analysis of the jurisprudence 42. Some considerations on this problem xxn

5 13. RIGHT OF REARREST AND MULTIPLE ARREST Article 3(3) of the 43. The reason for the prohibition The exceptions to the general rule 196 Article 5 of the 45. An analysis of the specific exceptions JURISDICTION FOR THE ARREST Article 4 of the 46. Introduction An analysis of the relevant issues (a) Judicial authority 205 (b) Authority having jurisdiction 207 (c) Jurisdiction before the arrival of the ship 207 (d) Arrest pursuant to an order of a foreign court 208 (e) Choice of the judicial authority of the State in the jurisdiction of which the arrest is made 209 (f) Jurisdiction for arrest when the court has no juridiction on the merits 209 (g) Jurisdiction for arrest when the court has jurisdiction on themerits but the ship is not within its jurisdiction 211 (h) Jurisdiction for arrest when a decision on the merits has already been obtained 211 (i) Lis pendens Related actions 212 Article 2 of the 49. A review of the same issues RELEASE OF THE SHIP FROM ARREST Articles 3(3), 5 and 7(4) of the 49. Introduction < An analysis of the relevant situations (a) Release of a ship from subsequent arrest (b) Release after provision of security (c) National rules on the provision of security (d) Failure to bring proceedings on the merits within the time limit fixed by the 222 court (e) Constitution of the limitation' fund (f) Bankruptcy (g) Forced sale Article 4 of the 51. Release of the ship from arrest (a) Release after the provision of security 237 (b) Release from subsequent arrest 240 (c) Failure to bring proceedings on the merits within the time fixed by the court Release of the security (a) Provision of security in a State Party 240 (b) Provision of security in a non-party State and in a State Party 241 xxin

6 16. WHEN THE RELEASE OF A SHIP UNDER ARREST IS NOT PERMIT TED Article 5 of the 53. The reasons for the exception Trading of a ship under arrest 245 Article 4(1) of the 55. Reinstatement of the existing rule LIABILITY FOR WRONGFUL ARREST Article 6 of the 56. The history of the rule 57. A review of national rules 58. Security for damages Article 6 of the 59. An analysis of the rule in the light of its history 18. PROCEDURE RELATING TO THE ARREST Article 6 of the 60. Conditions for obtaining the authority 61. Enforcement of the arrest 62. National rules Article 2(3^4) of the 63. Conditions for obtaining the authority 64. Enforcement of the arrest JURISDICTION ON THE MERITS Article 7 of the 65. Introduction and general comments 66. Conflict with other conventions and with EC Regulation 44/2001 (a) EC Jurisdiction Convention and Lugano Convention (b) CLC 1992 (c) Hamburg Rules (d) Athens Convention 1992 (e) EC Regulation 44/ The individual links (a) Habitual residence or principal place of business of the claimant (b) Claims arising in the country in which the arrest is made (c) Claims concerning the voyage of the ship during which the arrest is made (d) Claims arising out of a collision or in circumstances covered by Article 13 of the 1910 Collision Convention (e) Salvage claims (f) Claims upon a mortgage or hypothecation of the ship Article 7 of the 68. The analysis of the provision in the light of its history 69 Conflict with other conventions and with the EC Regulation 44/2001 (a) EC Jurisdiction Convention and Lugano Convention (b) CLC 1992 (c) Hamburg Rules xxtv

7 (d) Athens Convention (e) EC Regulation 44/ RECOGNITION AND ENFORCEMENT OF JUDGMENTS Article 7(5-6) of the 70. The history of the provision SCOPE OF APPLICATION Article 8 of the 71. Introduction The notion of ship The flag as the symbol of nationality Ships flying the flag of Contracting States Ships flying the flag of non-contracting States Exclusions from the scope of application (a) Exclusion of Governments of non-contracting States and persons who do not have their habitual residences or principal place of business in a Contracting State 312 (b) Exclusion of the arrest of ships within the jurisdiction of the flag State by a person having his habitual residence or principal place of business in that State 314 (c) Exclusion of the application of Article 7 to cases covered by the Rhine Navigation Convention of Article 8 of the 77. The general rule Exceptions to the general rule (a) Arrest of a ship within the jurisdiction of the flag State by a person having his habitual residence or principal place of business in that State 318 (b) State-owned ships 319 (c) Ships under arrest adversely affecting the use of the port installations 319 (d) Ships in respect of which the limitation of liability is invoked 320 (e) Ships owned by a person subject to bankruptcy or similar proceedings 320 APPENDICES I." II. International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships, 1952 English text 323 French text 328 Questionnaire I on the Implementation of the 1952 Arrest Convention and Replies 333 III. Questionnaire II on the Implementation of the 1952 Arrest Convention and Replies 395 IV. Report of the United Nations/International Maritime Organization Diplomatic Conference on Arrest of Ships Chapter I Final Act of the United Nations/International Maritime Organization Diplomatic Conference on Arrest of Ships 425 Chapter II Preparation and Adoption of a Convention on Arrest of Ships 434 Chapter III Organizational matters 438

8 French text of the 441 Spanish text of the 448 V. International Convention Relating to the Arrest of Sea-Going Ships, 1952 A comparison with the 455 VI. Decision 487 of La Comunidad Andina 469 VII. The Travaux Preparatoires of the International Convention on Arrest of Ships 477 Index 663 xxvi