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25 September 2013
Rotterdam court decision
Court of appeal decision
Pursuant to the Arrest Convention 1952, a pre-judgment arrest of a vessel flying the flag of a convention state is allowed to obtain security only for 'maritime claims' (Article 1(1)). Nevertheless, Dutch courts have held that protective measures against a vessel can be taken for non-maritime claims immediately after a foreign judgment has been declared enforceable in the Netherlands pursuant to Article 47(2) and (3) of the EU Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I, 44/2001).
The dispute at the heart of this ruling involved the arrest in the Netherlands of the Romanian-flagged oil products tanker, the Histria Topaz, by claimants which had been awarded approximately $3 million in total by International Chamber of Commerce arbitrators in Paris. Subsequently, the Paris Tribunal de Grande Instance allowed the enforcement of the arbitration awards in France. The owners of the vessel duly sought a judgment to have the vessel arrest lifted. Romania is a party to the Arrest Convention, as is the Netherlands. As a result, the arrest fell within the scope of Article 8 of the convention.
The initial arrest of the Histria Topaz was lifted by the Rotterdam court because the claim was not a maritime claim, as required pursuant to the Arrest Convention. Simultaneously, and at the request of the claimants, the Rotterdam court rendered a declaration of enforceability relating to the French court's decision to enforce the arbitration awards. Subsequently, the claimants arrested the vessel for a second time. Again, the owners asked the Rotterdam court to lift the arrest.
The Rotterdam court deemed the arrest of the Histria Topaz to be a pre-judgment arrest, because the declaration of enforceability did not constitute a title for execution. In fact, no measure of enforceability could be taken until the owners had had the opportunity to appeal against the declaration, under Article 47(3) of the Brussels I Regulation. However, at the same time, the Rotterdam court expressed the opinion that the arrest fell outside the definition included in Article 1(2) of the Arrest Convention, which refers to "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".
The Rotterdam court concluded that the arrest was a 'special' protective arrest based on Article 47(2) of the Brussels I Regulation – special in that the validity and the amount of the claim has been determined by a foreign 'Brussels I court', whose judgment shall in general be recognised.
The owners appealed, and The Hague Court of Appeal confirmed that it did not follow from the Arrest Convention that the arrest should be lifted.
The court of appeal emphasised that the aim of the Arrest Convention is to prevent the arrest of vessels for any and all claims before the merits of the claim have been determined. It concluded that an arrest of a vessel to execute an enforceable judgment does not fall within the scope of the Arrest Convention. Article 47(2) and (3) of the Brussels I Regulation provides for the possibility to take protective measures (eg, arrest) in the event that a declaration of enforceability is rendered, but within the period in which the declaration can be appealed. The court of appeal concluded that such arrest is a protective arrest in advance of the execution of an enforceable judgment, which falls outside the scope of the Arrest Convention.
In the Dutch courts, having obtained a declaration of enforceability of a foreign 'Brussels I judgment', a claimant can arrest a vessel to obtain security for any claim – not necessarily a maritime claim – pursuant to Article 47 of the Brussels I Regulation. The claimant need not wait for the period of appeal against the declaration of enforceability to make the arrest.
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