Berlingieri on Arrest of Ships Volume I

A Commentary on the 1952 Arrest Convention

Francesco Berlingieri

• Publisher: Informa Law from Routledge
• Year: 2016
• ISBN:
  9781317243922
• Edition: 6
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

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 1952 Arrest Convention, volume I 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 1952 Arrest Convention

The CMI conference of 1930 in Antwerp

1.01 In preparing for the Conference of the Comité Maritime International to be held in Antwerp in August 1930, the national associations were invited by the Bureau Permanent of the CMI to suggest new subjects for the study by the Comité. Three associations, the French, the German and the Italian, suggested as a new subject the arrest of ships.¹

1.02 The French and the German associations considered the subject of arrest in connection with jurisdiction in case of collision² and the German association produced a preliminary draft convention on civil jurisdiction in the matter of collision wherein provisions were made on arrest of ships as security for collision claims.³

1.03 Furthermore, the German association, after having pointed out that arrest was closely linked not only with collision but also with maritime liens and hypothèques, in order to protect the holders thereof from arrest effected by other claimants, suggested four questions for discussion, viz. the following:⁴

1. Who is entitled to arrest a ship?
2. Which ships may be arrested?
3. Where can the arrest be made?
4. How can a ship be released from arrest?

1.04 During the Conference, Dr Sieveking for the German association⁵ indicated that his country hesitated to ratify the 1926 Convention on Maritime Liens and Mortgages because the problem of arrest was not the subject of uniform regulation. Professor Francesco Berlingieri, Sr, for the Italian association, raised the question of liability for wrongful arrest.⁶

1.05 The proposal to take up the subject of arrest was supported by the Swedish and Japanese associations⁷ and it was decided, following a suggestion by the president, to request the Bureau Permanent to carry out a preliminary investigation of the problem.⁸

The preparatory work for a draft convention on arrest of ships

1.06 A questionnaire was then prepared by the Bureau Permanent with questions on the right of arrest, the forced sale of ships⁹ and, finally, the unification of the law on arrest. Replies to the questionnaire were given by the national associations of Belgium,¹⁰ France,¹¹ Germany,¹² Italy,¹³ Netherlands,¹⁴ Norway,¹⁵ Portugal,¹⁶ Sweden,¹⁷ United Kingdom,¹⁸ United States¹⁹ and Yugoslavia.²⁰

1.07 The International Sub-Committee, which had meanwhile been constituted by the Bureau Permanent, at its meeting held in Antwerp on 19 November 1932 requested Mr Leopold Dor to prepare a preliminary draft convention. Such draft, accompanied by an explanatory report, was submitted to the International Sub-Committee at a subsequent meeting that was held in London on 16 May 1933.²¹

1.08 An amended draft was then prepared by Mr Dor, for consideration by the conference of the CMI to be held in Oslo in August 1933.²² The draft provided that any claimant having a claim against the owner of a vessel was entitled to arrest the vessel (article 1), that security for damages could be required by the court (article 2), that the court could, after the arrest, order the release of the vessel if the owner proved that the arrest was not justified or if he provided satisfactory security (article 3), that the arrestor might be held liable in damages for wrongful arrest (article 5), and that the procedure of the arrest is governed by the lex fori (article 6). The restriction of the right of arrest to claims against the owner was the subject of specific comments in the Report of the International Sub-Committee.²³ The rule on liability for wrongful arrest was strongly opposed by the British delegation and, in an attempt to offer a compromise solution, the entitlement of the owner of the ship to damages was limited to the case of mauvaise foi (bad faith).²⁴

1.09 Only a few national associations submitted comments before the Oslo Conference. The British association stated that a convention on arrest was of no particular interest in view of the fact that claimants had already the right to proceed in rem against the vessel in order to enforce a maritime claim.²⁵ The United States association indicated that it did not favour the idea of a convention on arrest;²⁶ the Japanese association pointed out that a convention could apply only to foreign ships;²⁷ the Dutch association supported the idea of a convention, though several amendments to the draft were suggested.²⁸

The CMI conferences of 1933 in Oslo and of 1937 in Paris

1.10 At the Oslo Conference the delegations of the United Kingdom and the United States refrained from taking any position in respect of the draft, thus showing their lack of interest in it. The delegations of Norway, Sweden and Germany stated that they could not accept the provision relating to damages for wrongful arrest. The delegation of the Netherlands suggested that the matter be left to the lex fori. The president of the Conference (Mr Alten), supported by the president of the CMI (Mr Franck), suggested that the draft should be resubmitted to the International Sub-Committee for further consideration.

1.11 During the debates it had emerged that there were two fundamental differences between the common law and civil law systems. First, while in the civil law countries a vessel could be arrested as security for any claim, whether or not of a maritime nature, in the common law countries (and more specifically in England) a vessel could only be arrested in the limited cases where claimants were entitled to enforce their claim by proceedings in rem. Secondly, while in civil law countries the arrestor, in case of wrongful arrest, could be held liable for the damages suffered by the owner of the vessel, in common law countries the owner could only claim the cost of the security, on the ground that he could always release the vessel from arrest by providing adequate security.²⁹

1.12 The International Sub-Committee reconsidered the draft at a meeting held in Paris on 2 June 1936³⁰ and decided, in order to find a solution acceptable to all or almost all national associations, to restrict the scope of the convention to some of the claims secured by a maritime lien under the 1926 Brussels Convention on Maritime Liens and Mortgages, viz. to the claims in respect of collision damage and salvage. Article 1 of the draft submitted to the Oslo Conference was amended accordingly, while all the other provisions were left practically unaltered, including article 5, which dealt with damages for wrongful arrest, and which had given rise to many objections in Oslo.³¹

1.13 This new draft did not seem to have met with too favourable a reaction on the part of the national associations. While the UK and the US associations refrained from making any comment,³² the Italian, Belgian and Swedish associations regretted the restricted scope of application of the new draft.³³ These views were confirmed during the Paris Conference of May 1937, when criticisms were also raised against the formulation of article 5. The German delegate then suggested that, in order to reach some result, it might be advisable to confine the scope of the draft convention to the arrest of the vessels involved in a collision, thus excluding salvage claims and, also, the arrest of sister ships. This suggestion was adopted.³⁴

1.14 When article 5 was examined, the suggestion was made to leave to the law of the court by which the arrest is granted the question of damages for wrongful arrest other than the cost of the bail and such suggestion met with the approval of the conference.³⁵

The CMI conferences of 1947 in Antwerp, of 1949 in Amsterdam and of 1951 in Naples

1.15 After the war, at the first conference convened by the CMI in Antwerp in 1947 it was decided to submit to the Diplomatic Conference the draft convention approved by the Paris Conference in 1937.³⁶ However, the British and the Dutch Maritime Law Associations felt that the scope of the 1937 draft was too restricted and that further efforts should be made to reach wider uniformity on the subject of arrest of ships. Upon their instructions, two of their members (Mr Jan Asser and Mr Cyril Miller) prepared a new questionnaire³⁷ in order to collect further information on the national laws in respect of arrest and recommended that an International Sub-Committee should be instructed to study this matter once more.

1.16 At the CMI Conference held in Amsterdam in 1949 Mr Asser summarised the result of the pre-war work³⁸ and Mr Miller gave a succinct and clear account of the difference between the English and the continental system.³⁹ Neither Mr Asser nor Mr Miller mentioned the problem of liability for wrongful arrest. Mr Miller instead stated very clearly that the scope of any future uniform legislation should be confined to the arrest as a security measure (saisie conservatoire) and should not be extended to the seizure for the purpose of levying execution of a judgment (saisie exécution).⁴⁰

1.17 The proposal of Mr Asser and Mr Miller initially met with some opposition. Then Mr Jean de Grandmaison presented on behalf of the French Association a compromise proposal based, he stated, on the system prevailing in Scotland and in the United States, viz. to limit the right of arrest to claims of a maritime nature but to allow the arrest of any ship in the same ownership.⁴¹ Although the merits of this proposal were not discussed, the opposition to giving further consideration to the problem of arrest of ships was withdrawn and the following resolution was unanimously adopted:⁴²

The Conference resolves to request the Bureau Permanent to appoint an International Sub-Committee to study all problems directly or indirectly appertaining to or connected with the international unification of the whole field of the law of arrest of ships to rep...