Arrest of Ships in the Black Sea
All countries of the Black Sea: Ukraine, Russia, Georgia, Turkey, Bulgaria, Romania, and the new Black Sea state - Moldova have its own special rules of ship arrest. Yes, those special rules govern the relations on the ship arrest in each Black Sea country. Thus, we can say that the efforts to unify those rules have not yielded positive results yet, making it difficult to provide legal support of arrest of ships and release them from detention. But this does not mean that the efforts made by the maritime world to unify these rules do not work. For example, Russia, Romania and Ukraine are the members of the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships (Brussels, 10.05.1952), Bulgaria is the member of the International Convention on the Arrest of Ships (Geneva, 12.03.1999). Other countries are not members of any of the conventions on Arrest of Ships.
Although in Turkey no international convention regarding arrest of sea-going ships acts, the new Commercial Code of Turkey, which entered into force on 01.07.2012, provides regulations on ship arrest which are in line with the achievements and standards of the international global practice. Nevertheless, Turkish common practice of ship arrest remains quite conservative. For example, arrest of a ship can only be made for the debts of the ship owner, except for the case when the vessel is subject to maritime lien. Counter-security or bail is widely practiced, although the size of the collateral (usually - it's a bank guarantee or deposit) rarely exceeds the amount of 15 - 40% of the maritime claim. Amount of cross-collateral may reach SDR 10 000 regardless of the amount of the claim. Turkish legislation is rather variable. But, under the new rules, a new practical problem emerged - to prove jurisdiction of the Turkish court.
The Russian Federation
Although Russia has acceded to International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships (Brussels, 10.05.1952), the practice of arrest of ships is still quite controversial. For example, a ship can be arrested in bankruptcy proceedings as a simple object, property, that is, not only for maritime claims. The procedure that exists in the family of common law (in rem) is not available in the Russian Federation. If a defendant requires providing a counterclaim to the claimant for the arrest of the vessel, the court usually decides on cross-collateral, although according to many lawyers access to justice is limited in such a case.
Romania has introduced new rules on arrest of ships in connection with the entry into force of the new Civil Procedure Code from 01.02.2013. The most important novelty, perhaps, is that the ship may be arrested before the statement of the claim on the merits is filed. The latter must be submitted to the court within 20 days from the date of claim on a ship arrest. If within this period the statement of claim is not filed, the vessel shall be released.
Bulgaria is one of the few (10) Member States of the International Convention on Arrest of Ships (Geneva, 12.03.1999) that entered into force on 14.03.2011. Ship may be arrested in the Bulgarian port both as a security of maritime claim, and as the security of a claim under the Civil Procedure Code of Bulgaria. Merchant Shipping Code of Bulgaria does not provide for the right of arrest of associated vessels to secure a maritime claim, but in the said Convention, to which Bulgaria is a party, such arrest is provided under the following conditions: at the start of the procedure relating to the arrest of a ship or ships, they are owned by the person liable for the maritime claim and which at the time when the claim arose was the owner of the ship in respect of which the maritime claim arose, or charterer or the bareboat charterer, time charterer or voyage charterer of that ship.
A similar situation is observed in Ukraine, that is, the vessel may be arrested as a security for a claim or for the adoption of interim measures under the Civil Procedure or the Code of Commercial Procedure, as well as to ensure maritime claims. Of course, Ukraine's accession to the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships (Brussels, 10.05.1952) brought an element of order and civility in the practice of ship arrest in Ukraine. It seems now that the extra-judicial arrest of a ship in a modern legal framework of Ukraine is impossible, but the court practice is still quite controversial and unsettled.
Moldova and Georgia
Moldova has only recently become a maritime nation, getting access to the sea through the port of Giurgiuleşti. Ship Arrest practice in Moldova is in its infancy. Although the Merchant Shipping Code of Moldova, Articles 45 - 51, provides fairly progressive standards of ship arrest, Moldova, like Georgia, is not a member of the international conventions on Arrest of Ships. Maritime Code of Georgia regulates arrest of ships in a rather simplified form. Political situation in and around Georgia is very tense, so the arrest of ships in Georgian ports is often performed as a compulsory measure which has the nature of international economic sanctions.
Thus, the arrest of vessels in any of the jurisdictions is not easy, even for professionals. Each jurisdiction has its own quirks and nuances, which is characteristic of relations of private international law in general. Relationship of the parties who enter into the procedure of arrest of the ship is usually quite complicated. As a result of arrest may be a situation that is difficult to resolve by using legal means, so that the arrested vessels are idle for months. Therefore, we usually recommend that the parties seek a compromise on time, without bringing the matter to the arrest of the vessel.
© А. Ницевич, 2013
Партнер, адвокат Председатель Морского института Украины, MNI
© Н. Мельников, 2013
Партнер, специалист по морскому праву член Морского института Украины, MNI