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The Convention Relating to the Arrest of Seagoing Ships of 1952. Some Questions

Published online by Cambridge University Press:  21 May 2009

J.P. Verheul
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Extract

The Convention relating to the arrest of seagoing ships entered into force for the Netherlands on 20 July 1983. Its purpose is, first of all, to limit the possibility of arrest to maritime claims, as summed up in Article 1 (inter alia, claims arising from: collisions, salvage, carriage, wages, mortgage). In addition, Article 7 grants jurisdiction on the merits to the courts of the country where the arrest was made, if the domestic law of that country so provides, or in any of six situations enumerated in that Article.

Type
Notes and Shorter Articles
Information
Netherlands International Law Review , Volume 30 , Issue 3 , December 1983 , pp. 383 - 386
Copyright
Copyright © T.M.C. Asser Press 1983

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References

1. The Netherlands made the reservations referred to in Article 10(a) and 10(b). The other parties to the Convention are: Costa Rica, Egypt, Haiti, Spain, Switzerland, Vatican City, Kampuchea, Portugal, France, U.K., Belgium, Nigeria, Algeria, Greece, Congo, Yugoslavia, Paraguay, Syria, West-Germany, Poland, Tonga, Italy. The Convention is dated 10 May 1952 and published in Tractatenblad 1981 no. 165 (see also Maandbericht Jan. 1983).

2. Articles 543 and 569 of the Commercial Code, for collisions and salvage respectively. For all other actions the forum arrestiis derived from Article 767 of the Code of Civil Procedure. For France, the same may become true, i. e. if the forum arresti for garnishment, introduced by Cass. civ. 6 Nov. 1979. Rev. Crit. 1980 588, is extended to attachment of movables.

3. Philip, A., “Maritime Jurisdiction in the EEC”', Nordisk Tidsskrift for internat. ret 1977, p. 120Google Scholar. Cf., Article l(b) of the Convention on Civil Jurisdiction in matters of Collision of 10 May 1952. See also, Article 36(1) of the Convention of Accession of Denmark, Ireland and the U. K. (to the Convention on jurisdiction and judgments of 1968) of 9 Oct. 1978, Off. Journal EC, L 304, 30 Oct. 1978, p. 11, where a temporary regulation is provided on jurisdiction in maritime matters for Denmark and Ireland, borrowed from the Convention on arrest of ships, anticipating their becoming a party to the latter Convention (“or could have been so arrested there but bail or other security has been given”). Similarly Article 5(7) of the Convention on jurisdiction and judgments of 1968, as it is to be amended by the Accession Convention, on arrest of cargo or freight.

4. G. Ripert, on behalf of the Commission ad hoc for the drafting of this Article, Com. Mar. Int., Conference de Naples (Sept. 1951), 1952, p. 142: “C'est pourquoi il faut décider que même ces navires peuvent etre saisis en vertu de la Convention ou de la loi locale”, (italics added).

5. One may ask, more generally, whether Articles 1 to 7 obtain in the case of Article 8(2). The President of the Tribunal de commerce de Bordeaux 28 July 1969, Droit Mar. Fr. 1970 111, applied Article 1(1) to solve the question whether prima facie evidence of the claim must be furnished in order to obtain authorization for the arrest (French text for “claim”: alligation d'un droit ou d'une creance: perhaps this question should be brought under the domestic law of procedure, see Article 6, but that is not the point under discussion).

6. Article 12 of the Convention on Collisions, of 1910.

Article 15 of the Salvage Convention of 1910.

Article 12 of the Convention on limitation of Liability of 1924.

Article 14 of the Convention on Liens and Mortgages of 1926.

Article 6 of the Convention on Immunity of State-Owned Vessels of 1926.

Article 8 of the Convention on Civil Jurisdiction in Matters of Collision of 1952.

7. Article 8(4) excludes from the scope of the Convention purely “domestic” cases. In relation thereto it is natural to read in Article 8(3) the possibility of excluding purely “foreign” cases, i. e., where neither the ship nor the claimant have any connection with a Contracting State.

8. Even if the defendant is domiciled in an EEC country which is not a party to the particular convention, see the authentic interpretation given to Article 57 by the Accession Convention, Article 25 (not yet in force, however). See also, District Court of Amsterdam 14 August 1975, NILR 1975 350, concerning the Benelux Convention on Trade Marks (defendant domiciled in Paris).

9. Loc. cit. p. 121.

10. This list alone has been adopted in the temporary regulation for Denmark and Ireland in the Accession Convention. Originally, this regulation was destined to be inserted in the EEC Convention itself, as a special section on admiralty jurisdiction. See Report Schlosser, Off. Journal C 59, 5 March 1959, pp. 108 and 111. Consequently, Philip's proposal seems to be in conformity with the drafters' intentions.