Berlingieri on Arrest of Ships Volume II

A Commentary on the 1999 Arrest Convention

Francesco Berlingieri

• Publisher: Informa Law from Routledge
• Year: 2016
• ISBN:
  9781315412795
• Edition: 6
• Topic: Jura
• Subtopic: Seerecht

Now presented in two convenient volumes, the sixth edition of Berlingieri on Arrest of Ships is an invaluable source of information, detailing the claims in respect of which a ship may be arrested, the conditions for obtaining an order of arrest, the need for a security, the manner by which the ship that has been arrested may be released, the possibility of a multiple arrest and the jurisdiction on the merits.

Focused on the 1999 Arrest Convention, volume II provides a unique, thorough, and updated commentary, analysing each provision with reference to its interpretation in a significant number of States Parties. Moreover, the original comments have been reviewed on the basis of the Travaux Préparatoires of the Convention, which the Author has collected and arranged under each article. In addition to this, the Travaux Préparatoires are now included as a new and important appendix to the volume.

Written by a renowned expert in the field, and analysing the various conventions relating to the arrest of ships in an article-by-article and paragraph manner, this book is a useful reference tool for practitioners, as well as academics and post-graduate students of maritime law.

Chapter 1
History of the 1999 Arrest Convention

The work of the CMI

1.1 The decision to consider the revision of the 1952 Arrest Convention was taken by the CMI following a resolution of IMO¹ and UNCTAD² to place on their working programme the revision of the 1926 and 1967 Maritime Liens and Mortgages Conventions and of the 1952 Arrest Convention. The CMI International Sub-Committee appointed by the CMI Executive Council in respect of this latter convention, under the chairmanship of Professor Allan Philip, considered, inter alia, (i) the additions that should be made to the list of maritime claims, (ii) the problem of whether a ship can be arrested in respect of claims against persons other than the owner of the ship, and (iii) whether the arrest should in all circumstances give rise to jurisdiction. In view of the quality and quantity of changes that were being discussed, the International Sub-Committee decided that it would have been difficult to carry out the revision by means of a protocol and, therefore, prepared the draft of a new convention for consideration by the forthcoming CMI Lisbon Conference in 1985.³ The draft was considered by the conference and, as amended by it, was approved with 23 votes in favour, three against and seven abstentions.⁴

1.2 Such draft,⁵ reference to which will be made as the Lisbon Draft, was then submitted by the president of the CMI to IMO and UNCTAD, together with the draft of the revised 1967 Maritime Liens and Mortgages Convention.

The work of the Joint International Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE)

1.3 A Joint Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE) was established pursuant to a recommendation of the Legal Committee of IMO, endorsed by the Council of IMO at its 56th session⁶ and pursuant to Resolution 6(XI) of the Working Group on International Shipping Legislation of UNCTAD, endorsed by the Trade and Development Board of UNCTAD at its 32nd session with the following terms of reference:

to examine the subject of maritime liens and mortgages, including the possible consideration of:

• (a) the review of the maritime liens and mortgages conventions and related enforcement procedures, such as arrest;
• (b) the preparation of model laws or guidelines on maritime liens, mortgages and related enforcement procedures, such as arrest.
• (c) the feasibility of an international registry of maritime liens and mortgages.

1.4 After the approval, at its sixth session held in London from 25 to 29 September 1989, of the Draft Articles for a Convention on Maritime Liens and Mortgages,⁷ the IMO–UNCTAD Joint Intergovernmental Group of Experts adopted, on the basis of a note prepared by the Secretariats of UNCTAD and IMO,⁸ the following recommendation:⁹

With regard to arrest, the Joint Group recommends that consideration of any further work be postponed until after the adoption of the final text of the Convention on Maritime Liens and Mortgages by a diplomatic conference.

1.5 In May 1993 the United Nations/IMO Conference, having adopted the new Convention on Maritime Liens and Mortgages, approved a resolution in which it recommended that:

the relevant bodies of UNCTAD and IMO, in the light of the outcome of the Conference, reconvene the Joint Intergovernmental Group with a view to examining the possible review of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships, 1952.

1.6 Following such resolution, a note was prepared by the UNCTAD and IMO Secretariats, in consultation with the CMI,¹⁰ wherein some of the changes made in the MLM Convention 1993 were highlighted. It was stated in the note that the JIGE should take a decision on the scope of the revision of the 1952 Convention, which might be confined to drafting amendments consequential upon the adoption of the 1993 MLM Convention, or consist of a thorough revision of the Arrest Convention.

1.7 The seventh session of the JIGE (the first to deal with the arrest of ships) was held in Geneva, from 5 to 9 December 1994 under the chairmanship of Mr George Ivanov. The JIGE decided to take as a basis of its work the draft of a new Arrest Convention approved by the Lisbon Conference of the CMI and discussed most of the articles of the draft, among which particular attention was paid to:

• article 1—Definitions
• article 3—Exercise of right of arrest, and
• article 5—Right of arrest and multiple arrest.

On the basis of the outcome of such discussion, “Draft articles for a convention on arrest of ships” (hereafter referred to as “First Draft Articles”) were prepared by the IMO and UNCTAD Secretariats,¹¹ for consideration at the 8th session, which was agreed would take place in London on 7 and 8 October 1995.

1.8 Immediately after the session started, the German delegation questioned the need for a new convention and the adoption of an open-ended list of maritime claims. A debate followed, during which some delegations supported the German position, expressing the view that no decision had been taken at the previous session¹² and, in particular, no consensus had been reached on the adoption of the Lisbon Draft as a basis of future work. After some discussion, the Joint Group decided to use the First Draft Articles as a basis for its deliberations; it further decided that the outcome of the work would be embodied in a new convention, rather than a protocol.

1.9 The discussion then focused, in particular, on article 3, which was intended to replace article 3(4) of the 1952 Convention, and the proposal was made by the delegation of the United States to permit the arrest in respect of claims secured by maritime liens recognised by the lex fori.

1.10 The ninth and last session was held in Geneva from 2 to 6 December 1996 under the chairmanship of Mr Karl-Johan Gombrii. The most important matters that were discussed and settled were the following:

• (a) definition of arrest in article 1(2);¹³
• (b) the power of arrest except the arrest of ships ready to sail or sailing;¹⁴
• (c) the release of the ship from arrest (article 4) except for the maximum amount of the security;¹⁵
• (d) re-arrest and multiple arrest (article 5);
• (e) the protection of owners and demise charterers of arrested ships (article 6) except the reference to security for damages in case the arrest is unjustified;
• (f) the jurisdiction on the merits (article 7);
• (g) the scope of application of the convention (article 8).

The most important matters that, although thoroughly discussed, could not yet be settled were the following:

• (a) whether the list of maritime claims should be a closed list or an open list;¹⁶
• (b) whether mention should be made of the power of arrest of ships ready to sail or which are sailing;¹⁷
• (c) whether the maritime liens securing claims for which arrest is permissible irrespective of the ship being owned by the person liable should only be the “international” maritime liens or, also, the maritime liens recognised by the lex fori;¹⁸
• (d) whether and to which extent arrest should be permissible in respect of claims against the demise charterer;¹⁹
• (e) whether the security to be provided for the release of the ship from arrest should not exceed the value of the ship;²⁰
• (f) whether in the provision on the security for damages that may be imposed on the claimant reference should be made, in addition to the arrest being wrongful, to the arrest being unjustified.²¹

1.11 At the end of the ninth session, the following recommendation was adopted by the JIGE:²²

The Joint UNCTAD/IMO Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects recommends to the International Maritime Organization (IMO) Council and to the Trade and Development Board of UNCTAD that they consider favourably, on the basis of the useful work done so far, proposing to the General Assembly of the United Nations the convening of a diplomatic conference to consider and adopt a convention on certain rules relating to the arrest of sea-going ships on the basis of the draft articles prepared by the Group of Experts.

1.12 A new set of Draft Articles was subsequently prepared, at the request of the JIGE, by the IMO and UNCTAD Secretariats,²³ and constituted the basis of discussions at the Diplomatic Conference, which was convened at Geneva from 1 to 12 March 1999, following the endorsement of the recommendation of the JIGE by the IMO Council at its 78th session and by the UNCTAD’s Trade and Development Board at its 15th executive session.

The Geneva Diplomatic Conference, 1–12 March 1999 and the subsequent events

1.13 The Draft Articles were considered by the Main Committee established by the Conference, under the chairmanship of Mr Karl-Johan Gombrii and the debate that took place during the first and second reading of the Draft Articles is reported in Appendix IV.

The text of the Convention was adopted by the Conference on 12 March 1999²⁴ and the Convention, pursuant to its article 1.2(1), was open for signature from 1 September 1999 until 31 August 2000 and was thereafter open for accession.

Notes

1 Res. A. 405(x) of the Assembly of IMO at its 10th session. A more detailed account of IMO’s involvement with maritime liens and mortgages and related subjects was given in the report entitled “Consideration of Work in respect of Maritime Liens and Mortgages and related Subjects: Preliminary report by the Secretariat” (Doc. LEG 52/5/Add. 1, 8 August 1984)...