UNITED
NATIONS
INTERNATIONAL CONVENTION ON
ARREST
OF SHIPS, 1999
The
States Parties to this Convention,
Recognizing
the desirability of facilitating the harmonious and orderly development of
world seaborne trade,
Convinced
of the necessity for a legal instrument establishing international uniformity
in the field of arrest of ships which takes account of recent developments in
related fields,
Have
agreed as follows:
For
the purposes of this Convention:
1.
"Maritime Claim" means a claim arising out of one or more of the
following:
(a) loss or damage caused by
the operation of the ship;
(b) loss of life or personal
injury occurring, whether on land or on water, in direct connection with the
operation of the ship;
(c) salvage operations or
any salvage agreement, including, if applicable, special compensation relating
to salvage operations in respect of a ship which by itself or its cargo
threatened damage to the environment;
(d) damage or threat of
damage caused by the ship to the environment, coastline or related interests;
measures taken to prevent, minimize, or remove such damage; compensation for
such damage; costs of reasonable measures of reinstatement of the environment
actually undertaken or to be undertaken; loss incurred or likely to be incurred
by third parties in connection with such damage; and damage, costs, or loss of
a similar nature to those identified in this subparagraph (d);
(e) costs or expenses
relating to the raising, removal, recovery, destruction or the rendering
harmless of a ship which is sunk, wrecked, stranded or abandoned, including
anything that is or has been on board such ship, and costs or expenses relating
to the preservation of an abandoned ship and maintenance of its crew;
(f) any agreement relating
to the use or hire of the ship, whether contained in a charter party or
otherwise;
(g) any agreement relating
to the carriage of goods or passengers on board the ship, whether contained in
a charter party or otherwise;
(h) loss of or damage to or
in connection with goods (including luggage) carried on board the ship;
(i) general average;
(j) towage;
(k) pilotage;
(l) goods, materials,
provisions, bunkers, equipment (including containers) supplied or services rendered
to the ship for its operation, management, preservation or maintenance;
(m) construction,
reconstruction, repair, convertingor equipping of the ship;
(n) port, canal, dock,
harbour and other waterway dues and charges;
(o) wages and other sums due
to the master, officers and other members of the ship's complement in respect
of their employment on the ship, including costs of repatriation and social
insurance contributions payable on their behalf;
(p) disbursements incurred
on behalf of the ship or its owners;
(q) insurance premiums
(including mutual insurance calls) in respect of the ship, payable by or on
behalf of the shipowner or demise charterer;
(r) any commissions,
brokerages or agency fees payable in respect of the ship by or on behalf of the
shipowner or demise charterer;
(s) any dispute as to
ownership or possession of the ship;
(t) any dispute between
co-owners of the ship as to the employment or earnings of the ship;
(u) a mortgage or a "hypothèque" or a charge of the same
nature on the ship;
(v) any dispute arising out
of a contract for the sale of the ship.
2.
"Arrest" means any detention or restriction on removal of a ship by
order of a Court to secure a maritime claim, but does not include the seizure
of a ship in execution or satisfaction of a judgment or other enforceable
instrument.
3.
"Person" means any individual or partnership or any public or private
body, whether corporate or not, including a State or any of its constituent
subdivisions.
4.
"Claimant" means any person asserting a maritime claim.
5.
"Court" means any competent judicial authority of a State.
1.
A ship may be arrested or released from arrest only under the authority of a
Court of the State Party in which the arrest is effected.
2.
A ship may only be arrested in respect of a maritime claim but in respect of no
other claim.
3.
A ship may be arrested for the purpose of obtaining security notwithstanding
that, by virtue of a jurisdiction clause or arbitration clause in any relevant
contract, or otherwise, the maritime claim in respect of which the arrest is
effected is to be adjudicated in a State other than the State where the arrest
is effected, or is to be arbitrated, or is to be adjudicated subject to the law
of another State.
4.
Subject to the provisions of this Convention, the procedure relating to the
arrest of a ship or its release shall be governed by the law of the State in
which the arrest was effected or applied for.
Article 3
Exercise of right of arrest
1.
Arrest is permissible of any ship in respect of which a maritime claim is
asserted if:
(a) the person who owned the
ship at the time when the maritime claim arose is liable for the claim and is
owner of the ship when the arrest is effected; or
(b) the demise charterer of
the ship at the time when the maritime claim arose is liable for the claim and
is demise charterer or owner of the ship when the arrest is effected; or
(c) the claim is based upon a mortgage or a "hypothèque" or a
charge of the same nature on the ship; or
(d) the claim relates to the
ownership or possession of the ship; or
(e) the claim is against the
owner, demise charterer, manager or operator of the ship and is secured by a
maritime lien which is granted or arises under the law of the State where the
arrest is applied for.
2.
Arrest is also permissible of any other ship or ships which, when the arrest is
effected, is or are owned by the person who is liable for the maritime claim
and who was, when the claim arose:
(a) owner of the ship in
respect of which the maritime claim arose; or
(b) demise charterer, time
charterer or voyage charterer of that ship.
This
provision does not apply to claims in respect of ownership or possession of a
ship.
3.
Notwithstanding the provisions of paragraphs 1 and 2 of this article, the
arrest of a ship which is not owned by the person liable for the claim shall be
permissible only if, under the law of the State where the arrest is applied
for, a judgment in respect of that claim can be enforced against that ship by
judicial or forced sale of that ship.
1.
A ship which has been arrested shall be released when sufficient security has
been provided in a satisfactory form, save in cases in which a ship has been
arrested in respect of any of the maritime claims enumerated in article 1,
paragraphs 1 (s) and (t). In such cases, the Court may permit the person in
possession of the ship to continue trading the ship, upon such person providing
sufficient security, or may otherwise deal with the operation of the ship
during the period of the arrest.
2.
In the absence of agreement between the parties as to the sufficiency and form
of the security, the Court shall determine its nature and the amount thereof,
not exceeding the value of the arrested ship.
3.
Any request for the ship to be released upon security being provided shall not
be construed as an acknowledgement of liability nor as a waiver of any defence
or any right to limit liability.
4.
If a ship has been arrested in a non-party State and is not released although
security in respect of that ship has been provided in a State Party in respect
of the same claim, that security shall be ordered to be released on application
to the Court in the State Party.
5.
If in a non-party State the ship is released upon satisfactory security in
respect of that ship being provided, any security provided in a State Party in
respect of the same claim shall be ordered to be released to the extent that
the total amount of security provided in the two States exceeds:
(a) the claim for which the
ship has been arrested, or
(b) the value of the ship,
whichever
is the lower. Such release shall, however, not be ordered unless the security
provided in the non-party State will actually be available to the claimant and
will be freely transferable.
6.
Where, pursuant to paragraph 1 of this article, security has been provided, the
person providing such security may at any time apply to the Court to have that
security reduced, modified, or cancelled.
Article 5
Right of rearrest and multiple arrest
1.
Where in any State a ship has already been arrested and released or security in
respect of that ship has already been provided to secure a maritime claim, that
ship shall not thereafter be rearrested or arrested in respect of the same
maritime claim unless:
(a) the nature or amount of
the security in respect of that ship already provided in respect of the same
claim is inadequate, on condition that the aggregate amount of security may not
exceed the value of the ship; or
(b) the person who has
already provided the security is not, or is unlikely to be, able to fulfil some
or all of that person's obligations; or
(c) the ship arrested or the
security previously provided was released either:
(i) upon the application or
with the consent of the claimant acting on reasonable grounds, or
(ii) because the claimant
could not by taking reasonable steps prevent the release.
2.
Any other ship which would otherwise be subject to arrest in respect of the
same maritime claim shall not be arrested unless:
(a) the nature or amount of
the security already provided in respect of the same claim is inadequate; or
(b) the provisions of
paragraph 1 (b) or (c) of this article are applicable.
3.
"Release" for the purpose of this article shall not include any
unlawful release or escape from arrest.
Article 6
Protection of owners and demise charterers of arrested ships
1.
The Court may as a condition of the arrest of a ship, or of permitting an
arrest already effected to be maintained, impose upon the claimant who seeks to
arrest or who has procured the arrest of the ship the obligation to provide
security of a kind and for an amount, and upon such terms, as may be determined
by that Court for any loss which may be incurred by the defendant as a result
of the arrest, and for which the claimant may be found liable, including but
not restricted to such loss or damage as may be incurred by that defendant in
consequence of:
(a) the arrest having been
wrongful or unjustified; or
(b) excessive security
having been demanded and provided.
2.
The Courts of the State in which an arrest has been effected shall have
jurisdiction to determine the extent of the liability, if any, of the claimant
for loss or damage caused by the arrest of a ship, including but not restricted
to such loss or damage as may be caused in consequence of:
(a) the arrest having been
wrongful or unjustified, or
(b) excessive security
having been demanded and provided.
3.
The liability, if any, of the claimant in accordance with paragraph 2 of this
article shall be determined by application of the law of the State where the
arrest was effected.
4.
If a Court in another State or an arbitral tribunal is to determine the merits
of the case in accordance with the provisions of article 7, then proceedings
relating to the liability of the claimant in accordance with paragraph 2 of
this article may be stayed pending that decision.
5.
Where pursuant to paragraph 1 of this article security has been provided, the
person providing such security may at any time apply to the Court to have that
security reduced, modified or cancelled.
Article 7
Jurisdiction on the merits of the case
1.
The Courts of the State in which an arrest has been effected or security
provided to obtain the release of the ship shall have jurisdiction to determine
the case upon its merits, unless the parties validly agree or have validly
agreed to submit the dispute to a Court of another State which accepts
jurisdiction, or to arbitration.
2.
Notwithstanding the provisions of paragraph 1 of this article, the Courts of
the State in which an arrest has been effected, or security provided to obtain
the release of the ship, may refuse to exercise that jurisdiction where that
refusal is permitted by the law of that State and a Court of another State
accepts jurisdiction.
3.
In cases where a Court of the State where an arrest has been effected or
security provided to obtain the release of the ship:
(a) does not have
jurisdiction to determine the case upon its merits; or
(b) has refused to exercise
jurisdiction in accordance with the provisions of paragraph 2 of this article,
such
Court may, and upon request shall, order a period of time within which the
claimant shall bring proceedings before a competent Court or arbitral tribunal.
4.
If proceedings are not brought within the period of time ordered in accordance
with paragraph 3 of this article then the ship arrested or the security
provided shall, upon request, be ordered to be released.
5.
If proceedings are brought within the period of time ordered in accordance with
paragraph 3 of this article, or if proceedings before a competent Court or
arbitral tribunal in another State are brought in the absence of such order,
any final decision resulting therefrom shall be recognized and given effect
with respect to the arrested ship or to the security provided in order to
obtain its release, on condition that:
(a) the defendant has been
given reasonable notice of such proceedings and a reasonable opportunity to
present the case for the defence; and
(b) such recognition is not
against public policy (ordre public).
6.
Nothing contained in the provisions of paragraph 5 of this article shall
restrict any further effect given to a foreign judgment or arbitral award under
the law of the State where the arrest of the ship was effected or security
provided to obtain its release.
1.
This Convention shall apply to any ship within the jurisdiction of any State
Party, whether or not that ship is flying the flag of a State Party.
2.
This Convention shall not apply to any warship, naval auxiliary or other ships
owned or operated by a State and used, for the time being, only on government
non-commercial service.
3.
This Convention does not affect any rights or powers vested in any Government
or its departments, or in any public authority, or in any dock or harbour
authority, under any international convention or under any domestic law or
regulation, to detain or otherwise prevent from sailing any ship within their
jurisdiction.
4.
This Convention shall not affect the power of any State or Court to make orders
affecting the totality of a debtor's assets.
5.
Nothing in this Convention shall affect the application of international
conventions providing for limitation of liability, or domestic law giving
effect thereto, in the State where an arrest is effected.
6.
Nothing in this Convention shall modify or affect the rules of law in force in
the States Parties relating to the arrest of any ship physically within the
jurisdiction of the State of its flag procured by a person whose habitual
residence or principal place of business is in that State, or by any other person
who has acquired a claim from such person by subrogation, assignment or
otherwise.
Article 9
Non-creation of maritime liens
Nothing
in this Convention shall be construed as creating a maritime lien.