UNITED NATIONS TD - unctad.orgunctad.org/en/docs/tbige1d2.en.pdf · UNITED TD NATIONS United Nations Conference on Trade and Development Distr. GENERAL TD/B/IGE.1/2 6 June 1996 Original

UNITEDUNITED TDNATIONSNATIONS

United NationsConferenceon Trade andDevelopment

Distr.GENERAL

TD/B/IGE.1/26 June 1996

Original : ENGLISH

TRADE AND DEVELOPMENT BOARD

Joint UNCTAD/IMO Intergovernmental Groupof Experts on Maritime Liens andMortgages and Related Subjects

Ninth sessionGeneva, 2 December 1996Item 3 of the provisional agenda

CONSIDERATION OF THE REVIEW OF THE INTERNATIONALCONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING

TO THE ARREST OF SEA-GOING SHIPS, 1952

Note by the secretariats of UNCTAD and IMO

The attached document * / has been prepared for the ninth session of theJoint Intergovernmental Group of Experts.

____________________

* / Also circulated by IMO under the symbol LEG/MLM/39.

UNCTAD/IMO JIGE(IX)/2

Joint Intergovernmental 6 June 1996Group of Experts on Maritime Liens Original: ENGLISHand Mortgages and Related SubjectsNinth sessionGeneva, 2 December 1996Item 3 of the provisional agenda

CONSIDERATION OF THE REVIEW OF THE INTERNATIONALCONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING

TO THE ARREST OF SEA-GOING SHIPS, 1952

Note by the secretariats of UNCTAD and IMO

Introduction

The Joint Intergovernmental Group of Experts at its eighth sessionagreed to use the text of draft articles for a convention on arrest of shipscontained in document JIGE(VIII)/2, TD/B/CN.4/GE.2/5, LEG/MLM/32 as a basisfor discussion at its ninth session. To facilitate the work of the JointGroup, a comparison between the text of the provisions of the 1952 Conventionon Arrest of Ships and the draft articles as contained in JIGE(VIII)/2 isprovided in this document.

JIGE(IX)/2page 4

Draft articles for a convention on arrest of shipsand the 1952 Arrest Convention compared

DRAFT ARTICLES 1952 CONVENTION

Articl e 1 - Definitions

Article 1(1)

(1) "Maritime claim" means any claimconcerning or arising out of theownership, construction, possession,management, operation or trading ofany ship, or out of a mortgage or an"hypothèque" or a registrable chargeof the same nature on any ship, orout of salvage operations relating toany ship, such as any claim inrespect of:

(a) physical loss or damagecaused by the operation of theship other than loss of or damageto cargo, containers andpassengers’ effects carried on theship;

(b) loss of life or personalinjury occurring, whether on landor on water, in direct connectionwith the operation of the ship;

(c) salvage operations or anysalvage agreement;

(d) l i a b i l i t y t o p a ycompensation or other remunerationin respect of the removal orattempted removal of a threat ofdamage, or of preventive measuresor similar operations, whether orno t a r i s ing under anyinternational convention, or anyenactment or agreement;

(e) costs or expenses relatingto the raising, removal, recoveryor destruction of the wreck of theship or its cargo;

(f) any agreement relating tothe use or hire of the ship,whether contained in a charterparty or otherwise;

Article 1

Article 1(1)

In this Convention the followingwords shall have the meanings herebyassigned to them:

(1) "Maritime claim" means a claimarising out of one or more of thefollowing:

(a) damage caused by any shipeither in collision or otherwise;

(b) loss of life or personalinjury caused by any ship oroccuring in connection with theoperation of any ship;

(c) salvage;

- - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -

(d) agreement relating to theuse or hire of any ship whether bycharter party or otherwise;

JIGE(IX)/2page 5


Article 1(1), continued

(g) any agreement relating tothe carriage of goods orpassengers in the ship, whethercontained in a charter party orotherwise;

(h) loss of or damage to or inconnection with goods (includingluggage) carried in the ship;

(i) general average;

- - - - - - - - - - - - - - - - - - -

(j) towage;

(k) pilotage;

(l) g o o d s , m a t e r i a l s ,provisions, bunkers, equipment(including containers) or servicessupplied to the ship for itsoperation or maintenance;

(m) construct ion, repair ,converting or equipping of theship;

(n) port, canal, and otherwaterway dues and pilotage dues;

(o) wages and other sums due tothe master, officers and othermembers of the ship’s complementin respect of their employment onthe ship, including costs ofrepatriation and social insurancecontributions payable on theirbehalf;

(p) disbursements made inrespect of the ship, by or onbehalf of the master, owner,demise or other charterer oragent;

(q) i n s u r a n c e p r e m i u m s(including mutual insurance calls)in respect of the ship, payable byor on behalf of the shipowner ordemise charterer;

(r) any commissions, brokeragesor agency fees payable in respectof the ship by or on behalf of theshipowner or demise charterer;


(e) agreement relating to thecarriage of goods in any shipwhether by charter party orotherwise;

(f) loss of or damage to goodsincluding baggage carried in anyship;

(g) general average;

(h) bottomry;

(i) towage;

(j) pilotage;

(k) goods or materials whereversupplied to a ship for heroperation or maintenance;

(l) construction, repair orequipment of any ship or dockcharges and dues;

- - - - - - - - - - - - - - - - -

(m) wages of masters, officers,or crew;

(n) master’s disbursements,including disbursements made byshippers, charterers or agents onbehalf of a ship or her owner;

- - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - -

JIGE(IX)/2page 6



(s) any dispute as to ownershipor possession of the ship;

(t) any dispute between co-owners of the ship as to theemployment or earnings of theship;

(u) a mor tgage or an"hypothèque" or a registrablecharge of the same nature on theship;

(v) any dispute arising out ofa contract for the sale of theship.


(o) disputes as to the title toor ownership of any ship;

(p) disputes between co-ownersof any ship as to the ownership,possession, employment or earnings ofthat ship;

(q) t h e m o r t g a g e o rhypothecation of any ship;

- - - - - - - - - - - - - - - - -

JIGE(IX)/2page 7

Comment

The draft articles for a convention on arrest of ships contained in document

JIGE(VIII)/2, TD/B/CN.4/GE.2/5, LEG/MLM/32, are based on the CMI Draft Revision

of the International Convention for the Unification of Certain Rules Relating

to the Arrest of Seagoing Ships 1952 prepared at the CMI Lisbon Conference in

1985, together with the amendments made necessary as a result of the adoption

of the 1993 International Convention on Maritime Liens and Mortgages and

observations/proposals made by delegations during the seventh session of the

JIGE.

Article 1(1) of the draft articles corresponds to article 1(1) of the 1952

Convention. While the 1952 Convention contains an exhaustive list of maritime

claims, the draft articles adopt a mixed approach of providing for a definition

of the term “maritime claim” together with the general words “such as”, so that

while allowing some flexibility, it introduces an element of ejusdem generis with

the list of maritime claims which follow. The list of maritime claims is

expanded so as to cover all claims which have been granted maritime lien status

under the 1993 MLM Convention and to include further claims of maritime nature.

Sub-paragraphs (a), (b), (n) and (o) are based on article 4(1) of the 1993 MLM

Convention. Sub-paragraphs (d), (e), (p), (q), (r) and (v) are new and they were

added at the CMI Lisbon Conference so as to include other claims of maritime

character. The outdated concept of “bottomry” has been deleted, and further

modifications are made to ensure clarity.

During the eighth session of the JIGE an informal group was set up with

the task of ensuring that all claims with maritime lien status under the 1993

MLM Convention are included in the list of maritime claims without creating

duplication or conflict between sub-paragraphs of article 1(1). The Working

Group did not complete its work and will continue consideration of the matter

at the next session of the JIGE. The report of the Chairman of the Working Group

is annexed to the report of JIGE.1 /

1/. See the Report of the JIGE on its eighth session, documentJIGE(VIII)/7, TD/B/CN.4/GE.2/10, LEG/MLM/37, annex II, and for discussions onarticle 1(1), see annex 1, paras 11-20.

JIGE(IX)/2page 8


Article 1(2)

(2) "Arrest" means any detention,or restriction on removal, of a shipby order of a Court to secure amaritime claim when at the time ofsuch detention or restriction thatship is physically within thejurisdiction of the State where theorder has been made.

"Arrest" includes "attachment" orother conservatory measures, but doesnot include measures taken inexecution or satisfaction of anenforceable judgement or arbitralaward.

Article 1(2)

(2) "Arrest means the detention ofa ship by judicial process to securea maritime claim, but does notinclude the seizure of a ship inexecution or satisfaction of ajudgement.

Comment

Article 1(2) corresponds to the same paragraph of article 1 of the 1952

Convention. The text of this paragraph, which was adopted at the CMI Lisbon

Conference, clearly limits the application of the Convention to cases where the

ship is physically within the jurisdiction of the State of arrest. It therefore

excludes the so-called documentary arrest by entering an order on the file of

the ship in the ship's register.2 / This sub-paragraph was the subject of

exensive discussion by the JIGE at its eighth session, where the definition of

arrest contained in article 1(2) of the 1952 Convention was preferred by the

majority of delegations.3 /

Article 1(3)

(3) "Person" includes individuals,par tnersh ips , un incorpora tedassociations and bodies corporate,governments, their departments andpublic authorities.

Article 1(3)

(3) "Person" includes individuals,partnerships and bodies corporate,Governments, their Departments, andPublic Authorities.

2/. See the proceedings of the Lisbon Conference, CMI, 1985, Lisboa 11, p.130.

3/. For discussion of the JIGE see the Report of the JIGE on its eighthsession, JIGE(V111), TD/B/CN.4/GE.2/10, LEG/MLM/37, Annex, paras. 21-27.

JIGE(IX)/2page 9


Comment


Convention.4 /

Article 1(4)

(4) "Claimant" means any personasserting a maritime claim.

Article 1(4)

(4) "Claimant" means a person whoalleges that a maritime claim existsin his favour.

Comment


Convention, with some drafting amendments.

Article 1(5)

(5) "Court" means any competentjudicial authority of a State.

- - - - - - - - - - - - - - - - - - -

Comment

Article 1(5) is new and is considered as having only drafting

significance.5 /

Articl e 2 - Powers of arrest

Article 2(1)

(1) A ship may be arrested orreleased from arrest only by or underthe authority of a Court of the Statein which the arrest is demanded orhas been effected.

Article 4

A ship may only be arrested under theauthority of a Court or of theappropriate judicial authority of theContracting State in which the arrestis made.

4/. For discussion on article 1(3), see the Report of the JIGE on itseighth session, ibid ., para. 28.

5/. See the proceedings of the CMI Lisbon Conference, 1985, Lisboa II(hereinafter referred to as Lisboa II), p. 132.

JIGE(IX)/2page 10


Comment

Article 2(1) of the draft articles corresponds to article 4 of the 1952

Convention.

Article 2(2)

(2) A ship may be arrested inrespect of a maritime claim but inrespect of no other claim.

Article 2

A ship flying the flag of one of theContracting States may be arrested inthe jurisdiction of any of theContracting States in respect of anymaritime claim, but in respect of noother claim ; but nothing in thisConvention shall be deemed to extendor restrict any right or powersvested in any Governments or theirDepartments, Public Authorities, orDock or Harbour Authorities undertheir existing domestic laws orregulations to arrest, detain orotherwise prevent the sailing ofvessels within their jurisdiction.

Comment

Article 2(2) of the draft articles reflects the concept contained in the

first sentence of article 2 of the 1952 Convention.

Article 2(3)

(3) A ship may be arrested eventhough it is ready to sail or issailing.

Article 3(1)

(1) Subject to the provisions ofparagraph (4) of this article and ofarticle 10, a claimant may arresteither the particular ship in respectof which the maritime claim arose, orany other ship which is owned by theperson who was, at the time when themaritime claim arose, the owner ofthe particular ship, even though theship arrested be ready to sail ; butno ship, other than the particularship in respect of which the claimarose, may be arrested in respect ofany of the maritime claims enumeratedin article 1(1)(o), (p) or (q).

JIGE(IX)/2page 11


Comment

Article 2(3) of the draft article is based on the provision contained in

article 3(1) of the 1952 Convention.6 /

Article 2(4)

(4) A ship may be arrested for thepurpose of obtaining securitynotwithstanding that by virtue of ajurisdiction clause, arbitrationclause or choice of law clause in anyrelevant contract the maritime claimin respect of which the arrest iseffected is to be adjudicated in aState other than the State where thearrest is effected, or is to bearbitrated, or is to be adjudicatedsubject to the law of another State.

- - - - - - - - - - - - - - - - - - -

Comment

Article 2(4) of the draft articles is new. It was adopted at the CMI

Lisbon Conference.

Article 2(5)

(5) Subject to the provisions ofthis Convention, the procedurerelating to the arrest of a ship orits release shall be governed by thelaw of the State in which the arrestis demanded or has been effected.

Article 6(2)

The rules of procedure relating tothe arrest of a ship, to theapplication for obtaining theauthority referred to in article 4,and to all matters of procedure whichthe arrest may entail, shall begoverned by the law of theContracting State in which the arrestwas made or applied for.

6/. See Lisboa II, p. 132.

JIGE(IX)/2page 12


Comment

Article 2(5) of the draft articles corresponds to the second paragraph of

article 6 of the 1952 Convention.7 /

Article 3 - Exercise of right ofarrest

(1) Arrest is permissible of anyship in respect of which a maritimeclaim is asserted if:

Alternative 1 :

[(a) the claim is secured by amaritime lien and is within any ofthe following categories;

(i) wages and other sums due tothe master, officers and othermembers of the ship’scomplement in respect of theiremployment on the ship,including costs of repatriationa n d s o c i a l i n s u r a n c econtributions payable on theirbehalf,

(ii) loss of life or personalinjury occurring, whether onland of on water, in directconnection with the operationof the ship,

(iii) reward for the salvage ofthe ship,

(iv) port, canal, and otherwaterway dues and pilotagedues,

(v) physical loss or damagecaused by the operation of theship other than loss of ordamage to cargo, containers andpassengers’ effects carried onthe ship;] or

Article 3 (1), (2), (4)

(1) Subject to the provisions ofparagraph (4) of this article and ofarticle 10, a claimant may arresteither the particular ship in respectof which the maritime claim arose, orany other ship which is owned by theperson who was, at the time when themaritime claim arose, the owner ofthe particular ship, even though theship arrested be ready to sail; butno ship, other than the particularship in respect of which the claimarose, may be arrested in respect ofany of the maritime claims enumeratedin article 1(1)(o), (p) or (q).

(2) Ships shall be deemed to be inthe same ownership when all theshares therein are owned by the sameperson or persons.

(4) When in the case of a charterby demise of a ship the charterer andnot the registered owner is liable inrespect of a maritime claim relatingto that ship, the claimant may arrestsuch ship or any other ship in theownership of the charterer by demise,subject to the provisions of thisConvention, but no other ship in theownership of the registered ownershall be liable to arrest in respectof such maritime claims.

The provisions of this paragraphshall apply to any case in which aperson other than the registeredowner of a ship is liable in respectof a maritime claim relating to thatship.

7/. For discussions held by the Joint Group on article 2 see the report ofthe JIGE on its eighth session, document JIGE(VIII)/7, annex 1, paragraphs 31-43.

JIGE(IX)/2page 13


Alternative 2 :

[(a) the claim is secured by amaritime lien;]

Alternative 3 :

This alternative requires keeping thetext of the paragraph 1(a) ofalternative 1 together with a newsub-paragraph (b) which would read asfollows:

[(b) the claim is secured by amaritime lien granted by the lawof the State where the arrest isrequested pursuant to theprovisions of article 6 of theInternational Convention onMaritime Liens and Mortgages,1993;]

(b) the claim is based upon aregistered mortgage or aregistered "hypothèque" or aregistered charge of the samenature; or

(c) the claim is related toownership or possession of theship; or

(d) the claim is not covered by(a), (b) or (c) above and if:

(i) the person who owned theship at the time when themaritime claim arose ispersonally liable for the claimand is owner of the ship whenthe arrest is effected, or

(ii) the demise charterer ofthe ship is personally liablefor the claim and is demisecharterer or owner of the shipwhen the arrest is effected.

(2) Arrest is also permissible ofany other ship or ships which, whenthe arrest is effected, is or areowned by the person who is personallyliable for the maritime claim and whowas, when the claim arose:

JIGE(IX)/2page 14


Article 3, continued

(a) owner of the ship in respectof which the maritime claim arose;or

(b) demise charterer, timecharterer or voyage charterer ofthat ship.

This provision does not apply toclaims in respect of ownership orpossession of a ship.

(3) Notwithstanding the provisionsof paragraphs (1) and (2) of thisarticle, the arrest of a ship whichis not owned by the person allegedlyliable for the claim shall bepermissible only if, under the law ofthe State where the arrest isdemanded, a judgement in respect ofthat claim can be enforced againstthat ship by judicial or forced saleof that ship.

Comment

Article 3 of the draft articles reflects the provisions of paragraphs (1),

(2) and (4) of the 1952 Convention.8 / Article 3(1)(a) includes three

alternative texts. Alternative 1 is based on the Lisbon draft using the

terminology of article 4(1) of the 1993 MLM Convention. Alternative 2 had been

proposed by the delegation of the United States of America during the seventh

session of the JIGE, and alternative 3 had been proposed by the Chairman of the

Informal Group on consideration of national maritime liens set out during the

same session. If alternative 3 is adopted, sub-paragraphs (b), (c) and (d) which

follow will accordingly be reordered as (c), (d) and (e).9 /

8/. See Lisboa II, pp. 134-143.

9/. For discussion on the three alternatives see the Report of the JIGE onits seventh session, document JIGE(VII)/3, TD/B/CN.4/GE.2/3, LEG/MLM/30, annex1, para. 42. See also the Report of the JIGE on its eighth session, documentJIGE(VIII)/7, TD/B/CN.4/GE.2/10, LEG/MLM/37, annex 1, paras. 44-53, for afurther alternative proposed by the delegation of the United States ofAmerica.

JIGE(IX)/2page 15


Articl e 4 - Release from arrest

(1) A ship which has been arrestedshall be released when sufficientsecurity has been furnished in asatisfactory form.

(2) In the absence of agreementbetween the parties as to thesufficiency and form of the security,the Court shall determine its natureand the amount thereof, not exceedingthe value of the ship.

(3) Any request for the ship to bereleased upon security being providedshall not be construed as anacknowledgement of liability nor asa waiver of any defence or any rightto limit liability.

(4)(a) If a ship has been arrested ina non-party State and is notreleased although security hasbeen given in a State Party, thatsecurity shall be ordered releasedon application to the Court in theState Party save in exceptionalcases where it would be unjust todo so.

(b) If in a non-party State theship is released upon satisfactorysecurity being provided, anysecurity given in a State Partyshall be ordered released to theextent that the total amount ofsecurity given in the two Statesexceeds:

(i) the claim for which theship has been arrested, or

(ii) the value of the ship,

whichever is the lower.

Such release shall, however, notbe ordered unless the securitygiven in the non-party State willactually be available to theclaimant and will be freelytransferable.

Article 5

The Court or other appropriatejudicial authority within whosejurisdiction the ship has beenarrested shall permit the release ofthe ship upon sufficient bail orother security being furnished, savein cases in which a ship has beenarrested in respect of any of themaritime claims enumerated in article1(1)(o) and (p). In such cases, theCourt or other appropriate judicialauthority may permit the person inpossession of the ship to continuetrading the ship, upon such personfurnishing sufficient bail or othersecurity, or may otherwise deal withthe operation of the ship during theperiod of the arrest.

In default of agreement between theparties as to the sufficiency of thebail or other security, the Court orother appropriate judicial authorityshall determine the nature and amountthereof.

The request to release the shipagainst such security shall not beconstrued as an acknowledgement ofliability or as a waiver of thebenefit of the legal limitation ofliability of the owner of the ship.

JIGE(IX)/2page 16



(5) Where pursuant to paragraph (1)of this article security has beenprovided, the person providing suchsecurity may at any time apply to theCourt to have that security reduced,modified, or cancelled.

Comment

Article 4 of the draft articles corresponds to article 5 of the 1952

Convention.10 /

10/. See Lisboa II, 1985, p. 144. For the discussion on article 4 by theJoint Group see the Report of the JIGE on its eighth session, documentJIGE(VIII)/7, ibid . paras. 54-65.

JIGE(IX)/2page 17


Article 5 - Right of rearrest andmultiple arrest

Alternative 1 :

(1) Where in any State a ship hasalready been arrested and released orsecurity in respect of that ship hasalready been given to secure amaritime claim, that ship shall notthereafter be rearrested or arrestedin respect of the same maritime claimunless:

(a) the nature or amount of thesecurity already obtained inrespect of the same claim isinadequate, provided that theaggregate amount of security maynot exceed the value of the ship;or

(b) the person who has alreadygiven the security is not, or isunlikely to be, able to fulfilsome or all of his obligatiions[;or

(c) the ship arrested or thesecurity previously given wasreleased either:

(i) upon the application orwith the consent of theclaimant acting on reasonablegrounds, or

(ii) because the claimant couldnot by taking reasonable stepsprevent the release].

(2) Any other ship which wouldotherwise be subject to arrest inrespect of the same maritime claimshall not be arrested unless:

(a) the nature or amount of thesecurity already obtained inrespect of the same claim isinadequate; or

(b) the provisions of paragraph(1)(b) or (c) of this article areapplicable.

Article 3(3)

(3) A ship shall not be arrested,nor shall bail or other security begiven more than once in any one ormore of the jurisdictions of any ofthe Contracting States in respect ofthe same maritime claim by the sameclaimant; and, if a ship has beenarrested in any one of suchjurisdictions, or bail or othersecurity has been given in suchjurisdiction either to release theship or to avoid a threatened arrest,any subsequent arrest of the ship orof any ship in the same ownership bythe same claimant for the samemaritime claim shall be set aside,and the ship released by the Court orother appropriate judicial authorityof that State, unless the claimantcan satisfy the Court or otherappropriate judicial authority thatthe bail or other security had beenfinally released before thesubsequent arrest or that there isother good cause for maintaining thatarrest.

JIGE(IX)/2page 18



(3) "Release" for the purpose ofthis article shall not include anyunlawful release or escape fromarrest.

Alternative 2 :

[(1) Where in any State a ship hasalready been arrested and released orsecurity in respect of that ship hasalready been given to secure amaritime claim, that ship shall notthereafter be rearrested or arrestedin respect of the same maritimeclaim, unless there has been fraud ormaterial misrepresentation inconnection with the release or theposting of the security.

(2) Any other ship which wouldotherwise be subject to arrest inrespect of the same maritime claimshall not be arrested unless thenature or the amount of the securityalready obtained in respect of thesame claim is inadequate.

(3) "Release" for the purpose ofthis article shall not include anyunlawful release or escape fromarrest.]

Comment

Article 5 of the draft articles corresponds to article 3(3) of the 1952

Convention. It includes two alternatives. Alternative 1 is based on the Lisbon

draft and paragraph (c) is placed in brackets during the seventh session of the

JIGE. Alternative 2 had been proposed by the delegations of the United States

of America, Liberia and the Republic of Korea at the seventh session of the

JIGE.11 /

11/. For discussion on article 5 see the Report of the JIGE on its seventhsession, document JIGE(VII)/3, TD/B/CN.4/GE.2/3, LEG/MLM/30, annex I, paras.46-51.

JIGE(IX)/2page 19


Article 6 - Protection of owners anddemise charterers of arrested ships

(1) The court may as a condition ofthe arrest of a ship, or ofpermitting an arrest already effectedto be maintained, impose upon theclaimant who seeks to arrest or whohas procured the arrest of the shipthe obligation to provide security ofa kind and for an amount, and uponsuch terms, as may be determined bythat Court for any loss which may beincurred by the defendant as a resultof the arrest, and for which theclaimant may be found liable,including but not restricted to suchloss or damage as may be incurred bythat defendant in consequence of:

(a) the arrest having beenwrongful or unjustified; or

(b) excessive security having beendemanded and obtained.

(2) The Courts of the State inwhich an arrest has been effectedshall have jurisdiction to determinethe extent of the liability, if any,of the claimant for loss or damagecaused by the arrest of a ship,including but not restricted to suchloss or damage as may be caused inconsequence of:

(a) the arrest having beenwrongful or unjustified, or

(b) excessive security having beendemanded and obtained.

(3) The liability, if any, of theclaimant in accordance with paragraph(2) of this article shall bedetermined by application of the lawof the State where the arrest waseffected.

(4) If a Court in another State oran arbitral tribunal is to determinethe merits of the case in accordancewith the provisions of article 7,then proceedings relating to theliability of the claimant inaccordance with paragraph (2) of thisarticle may be stayed pending thatdecision.

Article 6 (1)

All questions whether in any case theclaimant is liable in damages for thearrest of a ship or for the costs ofthe bail or other security furnishedto release or prevent the arrest ofa ship, shall be determined by thelaw of the Contracting State in whosejurisdiction the arrest was made orapplied for.

JIGE(IX)/2page 20



(5) Where pursuant to paragraph (1)of this article security has beenprovided, the person providing suchsecurity may at any time apply to theCourt to have that security reduced,modified or cancelled.

Comment

Article 6 of the draft articles corresponds to the first paragraph of

article 6 of the 1952 Convention.

Article 7 - Jurisdiction on themerits of the case

(1) The Courts of the State inwhich an arrest has been effected orsecurity given to prevent arrest orobtain the release of the ship shallhave jurisdiction to determine thecase upon its merits, unless theParties validly agree or have agreedto submit the dispute to a Court ofanother State which acceptsjurisdiction, or to arbitration.

(2) Notwithstanding the provisionsof paragraph (1) of this article, theCourts of the State in which anarrest has been effected, or securitygiven to prevent arrest or obtain therelease of the ship, may refuse toexercise that jurisdiction where thatrefusal is permitted by the law ofthat State and a Court of anotherState accepts jurisdiction.

(3) In cases where a Court of theState where an arrest has beeneffected or security given to preventarrest or obtain the release of theship:

(a) does not have jurisdiction todetermine the case upon itsmerits; or

Article 7

(1) The Courts of the country inwhich the arrest was made shall havejurisdiction to determine the caseupon its merits if the domestic lawof the country in which the arrest ismade gives jurisdiction to suchCourts; or in any of the followingcases namely:

(a) if the claimant has hishabitual residence or principalplace of business in the countryin which the arrest was made;

(b) if the claim arose in thecountry in which the arrest wasmade;

(c) if the claim concerns thevoyage of the ship during whichthe arrest was made;

(d) if the claim arose out of acollision or in circumstancescovered by article 13 of theInternational Convention for theUnification of Certain Rules ofLaw with respect to Collisionsbetween Vessels, signed atBrussels on 23 September 1910;

(e) if the claim is for salvage;

JIGE(IX)/2page 21



(b) has refused to exercisejurisdiction in accordance withthe provisions of paragraph (2) ofthis article,

such Court may, and upon requestshall, order a period of time withinwhich the claimant shall beingproceedings before a competent Courtor arbitral tribunal.

(4) If proceedings are not broughtwithin the period of time ordered inaccordance with paragraph (3) of thisarticle then the ship arrested or thesecurity given shall, upon request,be ordered released.

(5) If proceedings are broughtwithin the period of time ordered inaccordance with paragraph (3) of thisarticle, or if proceedings before acompetent Court in another State arebrought in the absence of any suchorder, then unless such proceedingsdo not satisfy general requirementsin respect of due process of law, anyfinal decision resulting therefromshall be recognized and given effectwith respect to the arrested ship orto the security given in order toprevent its arrest or obtain itsrelease.

(6) Nothing contained in theprovisions of paragraph (5) of thisarticle shall restrict any furthereffect given to a foreign judgementor arbitral award under the law ofthe State where the arrest of theship was made or security given toprevent its arrest or obtain itsrelease.


(f) if the claim is upon amortgage or hypothecation of theship arrested.

(2) If the Court within whosejurisdiction the ship was arrestedhas no jurisdiction to decide uponthe merits, the bail or othersecurity given in accordance witharticle 5 to procure the release ofthe ship shall specifically providethat it is given as security for thesatisfaction of any judgement whichmay eventually be pronounced by aCourt having jurisdiction so todecide; and the Court or otherappropriate judicial authority of thecountry in which the arrest is madeshall fix the time within which theclaimant shall bring an action beforea Court having such jurisdiction.

(3) If the parties have agreed tosubmit the dispute to thejurisdiction of a particular Courtother than that within whosejurisdiction the arrest was made orto arbitration, the Court or otherappropriate judicial authority withinwhose jurisdiction the arrest wasmade may fix the time within whichthe claimant shall bring proceedings.

(4) If, in any of the casesmentioned in the two precedingparagraphs, the action or proceedingsare not brought within the time sofixed, the defendant may apply forthe release of the ship or of thebail or other security.

(5) This article shall not apply incases covered by the provisions ofthe revised Rhine NavigationConvention of 17 October 1868.

Comment

Article 7 of the draft articles corresponds to article 7 of the 1952

Convention.

JIGE(IX)/2page 22


Articl e 8 - Application

(1) This Convention shall apply toany seagoing ship, whether or notthat ship is flying the flag of aState Party.

(2) The Convention shall not applyto ships owned or operated by a Stateand used only on Government non-commercial service.

(3) Nothing in this Conventionshall be construed as creating amaritime lien.

Article 8

(1) The provisions of thisConvention shall apply to any vesselflying the flag of a ContractingState in the jurisdiction of anyContracting State.

(2) A ship flying the flag of anon-Contracting State may be arrestedin the jurisdiction of anyContracting State in respect of anyof the maritime claims enumerated inarticle 1 or of any other claim forwhich the law of the ContractingState permits arrest.

(3) Nevertheless any ContractingState shall be entitled wholly orpartly to exclude from the benefitsof this Convention any Government ofa non-Contracting State or any personwho has not, at the time of thearrest, his habitual residence orprincipal place of business in one ofthe Contracting States.

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Article 9

Nothing in this Convention shall beconstrued as creating a right ofaction, which, apart from theprovisions of this Convention, wouldnot arise under the law applied bythe Court which had seisin of thecase, nor as creating any maritimeliens which do not exist under suchlaw or under the Convention onMaritime Mortgages and Liens, if thelatter is applicable.

JIGE(IX)/2page 23



(4) This Convention does not affectany rights or powers vested in anyGovernment or its departments, or inany public authority, or in any dockor harbour authority, under anyinternational convention or under anydomestic law or regulation, to detainor otherwise prevent from sailing anyship within their jurisdiction.

(5) This Convention shall notaffect the power of any State orCourt to make orders affecting thetotality of a debtor’s assets.

(6) Nothing in this Conventionshall affect the application ofinternational conventions providingfor limitation of liability, ordomestic law giving effect thereto,in the State where an arrest iseffected.

(7) Nothing in this Conventionshall modify or affect the rules oflaw in force in the States Partiesrelating to the arrest of any shipphysically within the jurisdiction ofthe State of its flag procured by aperson who has his habitual residenceor principal place of business inthat State, or by any other personwho has acquired a claim from suchperson by subrogation, assignment orotherwise.

Article 2

A ship flying the flag of one of theContracting States may be arrested inthe jurisdiction of any of theContracting States in respect of anymaritime claim, but in respect of noother claim; but nothing in thisConvention shall be deemed to extendor restrict any right or powersvested in any Governments on theirDepartments, Public Authorities, orDock or Harbour Authorities undertheir existing domestic laws orregulations to arrest, detain orotherwise prevent the sailing ofvessels within their jurisdiction.

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Articl e 8 - paragraphs 4 and 5

(4) Nothing in this Conventionshall modify or affect the rules oflaw in force in the respectiveContracting States relating to thearrest of any ship within thejurisdiction of the State of her flagby a person who has his habitualresidence or principal place ofbusiness in that State.

(5) When a maritime claim isasserted by a third party other thanthe original claimant, whether bysubrogation, assignment or otherwise,such third party shall, for thepurpose of this Convention, be deemedto have the same habitual residenceor principal residence or principalplace of business as the originalclaimant.

JIGE(IX)/2page 24


Comment

Article 8 of the draft articles corresponds to articles 2, 8 and 9 of the

1952 Convention. Article 8(1) is based on paragraphs (1) to (3) of article

8 of the 1952 Convention. Unlike the provisions of the 1952 Convention, and

following the trends in modern maritime conventions, it provides for general

application of the draft convention. Paragraph (2) is new and excludes the

application of the draft convention to State-owned ships, provided they are used

for non-commercial services. The terminology is based on that of article 3(2)

of the 1993 MLM Convention. Paragraph (3) is based on article 9 of the 1952

Convention. The placement of this paragraph in article 8 which deals with

application of the draft convention may be questioned. Paragraph (4) is based

on article 2 of the 1952 Convention. Paragraphs (5) and (6) are new. The latter

is to avoid conflict between conventions. Paragraph (7) is based on article 8

paragraphs (4) and (5) of the 1952 Convention.

Articl e 9 - Reservations

A State may, when signing,ratifying, accepting or acceding tothis Convention, reserve the right torefrain from applying the Conventionto ships not flying the flag of aState Party.

Article 8(1)

(1) The provisions of thisConvention shall apply to any vesselflying the flag of a ContractingState in the jurisdiction of anyContracting State.

Comment

Article 9 of the draft articles corresponds to paragraph (1) of article

8 of the 1952 Convention.

Documents

UNITED NATIONS TD - unctad.orgunctad.org/en/docs/tbige1d2.en.pdf · UNITED TD NATIONS United Nations Conference on Trade and Development Distr. GENERAL TD/B/IGE.1/2 6 June 1996 Original