We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
16 May 2012
The contracting states to the 1952 Arrest Convention have long debated whether the forum arresti (jurisdiction) rule applies to vessels which are flying the flag of a non-contracting state. A Dutch court recently confirmed that it does when delivering a judgment establishing that a party can start proceedings on the merits of a case in the Netherlands on the basis of forum arresti under the convention.
The dispute originated in a collision on April 29 2010 between the 25,560 deadweight tonnage Maltese-flag bulk carrier Kaliakra and the UK 143, a Dutch fishing boat, off the Dutch coast near Den Helder. The Kaliakra collided with the UK 143 while the latter was fishing. Due to the impact of the collision, one fisherman was washed overboard. Luckily, he saved himself by holding onto a rope from the UK 143.
As a consequence of the collision, the UK 143 suffered severe damage, and on January 13 2011 the Kaliakra was attached in Rotterdam in respect of claims arising out of the collision.
On January 26 2011 the UK 143 started proceedings before the Rotterdam court on various grounds, including Article 7 of the 1952 Arrest Convention (forum arresti). The court's jurisdiction was challenged by the Kaliakra, whose Maltese owners argued that their vessel was flying the flag of a non-contracting state to the convention.
The court held that it did have jurisdiction. It noted that under Article 8 of the convention, it followed that if the vessel was flying the flag of a contracting state, it could be attached only for maritime claims as stipulated in Article 1 of the convention. Meanwhile, a vessel flying the flag of a non-contracting state may be attached for all sorts of claims if permitted by local rules.
The court deduced that the Arrest Convention also provides for rules in respect of vessels which are not flying the flag of a contracting state. It considered that this interpretation was in line with that of many other contracting states. For that reason, the court concluded that Article 7 also applied to vessels which do not fly the flag of a contracting state, and that the matter could be brought before the court in whose district the attachment was made.
The second question to be answered was whether the EU Brussels I Regulation (44/2001) could prevent the Rotterdam court from recognising jurisdiction on the basis of the Arrest Convention. Referring to the Tatry case, the court noted that Article 71 of the regulation stipulates that it will not affect other conventions to which member states are a party and which also deal with the jurisdiction of the court in special circumstances.
The court considered the Arrest Convention to be a special convention as intended under Article 71 of the Brussels I Regulation. It was also of the opinion that under Article 71(2) of the Brussels I Regulation, the fact that Malta was not a party to the Arrest Convention did not prevent the court from dealing with this matter on the basis of the Arrest Convention.
The court ruled that Article 7 of the Arrest Convention provided forum arresti jurisdiction for vessels flying the flags of both contracting and non-contracting states, and that the Brussels I Regulation allows a party to rely on forum arresti under the Arrest Convention.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.