lunes, 11 de abril de 2011

A Legal Analysis of the International Regime of Arrest of Ships: A Mexican Perspective

IMO
INTERNATIONAL MARITIME LAW INSTITUTE
Established under the auspices of the International Maritime Organization
A specialized agency of the United Nations
A Legal Analysis of the International Regime of Arrest of Ships: A Mexican Perspective
A Dissertation submitted in partial fulfillment of the requirements for the award of the Degree of Master of Laws (LL.M.) at the IMO International Maritime Law Institute
Submitted By: Jorge Humberto Jaimes Téllez (MEXICO)
Supervisor: Ms. Elda Belja
Academic Year 2010/2011


DEDICATION:
To my mother, for her endless love and support


Acknowledgments
This paper would not be possible without the help and knowledge of people that I met along the way in my life during this maritime adventure.
Firstly, to Ms. Elda Belja my infinite gratitude as a lecturer supervisor and tutor at IMLI,. Thank you for being the encourager and the actual builder of this paper. You more than anyone know that this paper is because of your patience and commitment.
Professor David Attard thank you for being the “Master of IMLI”, without you plus your effort, the legal maritime world would be incomplete.
Dr. Norman Martinez and Prof. Ruben Maceda, Prof. Riyaz Hamza, lecturers at IMLI for your knowledge and time.
Thank you Nippon Foundation, 2011 has been a very tough year for the Japanese community. I am committed to serve society
Ambassador Eduardo Medina Mora, thanks to you and your team for being the main support in this personal and professional project, without your help the fifth Mexican student at IMLI could not be writing these lines.
Lic. Alejandro Chacón Dominguez, General Coordinator of Ports and Mexican Merchant Marine. Thanks to your committed team I had the opportunity of achieving this dream that will help Mexico.
Capt. Marco Antonio Vinaza Martinez, General Director of the Mexican Merchant Marine without your support my nomination would not had ever been possible.
To IMLI family, thank you for walking side by side, now the maritime legal world is expecting us to perform properly, Good luck and many thanks.
To my father, Lic. Armando Jaimes Ramos
Lic. Alicia Sanchez Jara my Grandmother for being my storyteller.
To my family: Dra. Hannah de Lamadrid, Lic. Gabriel Ortiz, Lic. Jorge Javier Tellez Vargas, Chef Yngrid Mejia, Gonzalo Cervantes, Daniel Cervantes, Elisa, Pablo, Armando y Rodrigo Jaimes, Lic. Iris Sanchez, Lic. Javier Molina, Lic. Roxana Lopez Sanchez, without you, my life in Malta would have been very difficult.
To: Mayda Escobedo Tellez, Miroslava de Olaguibel, Jorge Quiroz Richards and Joaquin Álvarez del Castillo former Mexican IMLI students, thank you for your advices and guidance.


TABLE OF CONTENTS
Acknowledgments
i
CHAPTER I
Introduction
1
CHAPTER II
Historical background
3
CHAPTER III
The International Convention for the Unification of Certain Rules
relating to the Arrest if Sea-Going Vessels, 1962
7
CHAPTER IV
The 1999 Geneva Convention on Arrest of Ships
18
CHAPTER V
The Ship Arrest Procedure in Mexico
26
CHAPTER VI
Conclusions
31
BIBLIOGRAPHY
32
ANNEX I
International Convention for the Unification of Certain Rules relating to
the Arrest if Sea-Going Vessels, 1962
34
ANNEX II
The 1999 Geneva Convention on Arrest of Ships
35


CHAPTER I.
Introduction
Considering that in all legal systems the procedure to recover a debt exists, one of the essential performances of law is to protect the rights of a creditor while claiming what is entitled to.
Maritime claims are not different from other claims. However maritime claims are related to the shipping industry, which by its nature are international.
Considering the mobility of ships, the difficulty that arises is how a maritime creditor may enforce his/her claims. Most systems of laws have procedures relating to arrest of ships as a precautionary measure to obtain an accurate procedural remedy of stopping a vessel in a foreign jurisdiction, and to enforce against such vessel an eventually successful judgment.
The arrest of ships is thus a legal procedural remedy that prohibits anyone from moving the vessel in order for her to serve as security for a claim.
Therefore, arrest is a procedure that needs harmonization among different States. Due to the speed of the maritime business sometimes the claimant has to act in a much reduced lapse because ships only anchor just for a couple of days or even hours in different States.
A claimant might have to deal with the exercise of the proper legal action. In a common law country arrest of a vessel can be affected only if the claim is of a maritime nature. On the other hand, in a civil law country the arrest of a vessel can be performed even if the claim is not form a maritime nature. The only requirement that a claimant needs is exercising an action in personam against all the defendant´s assets.
Therefore, because of the speed of maritime business, the need for a claimant to act in a rapid way due to the mobility of ships, which in present day stay only few hours in a port, and not to interfere with trade and the engagements of a defendant ship owner the arrest procedure needs to be harmonized among different States.
All of these matters were intended to be solved by the International Convention for the Unification of certain Rules Relating to the Arrest of Sea-Going Vessels, 1952 (from now on 1952 Arrest Convention). As it is also known, the consolidation of this convention needed the best endeavors of all signatory parties.
This convention as it will be described in this paper tried to harmonize the differences among legal systems. It tried to give answers in respect of which were the claims that allowed the arrest of a vessel, the authorization of arrest of more than one vessel, the consequence of a wrongful arrest; in short to balance the different approaches of this procedure.
The 1952 Arrest Convention has been extremely successful over the last 50 years and it has been a very useful instrument. However the international community realized that it had to be updated.
The adoption of the 1999 International Convention on Arrest of Ships was not an easy task, and more countries were involved in this process. It raised issues such as the personal liability of the ship owner and arrest of a sistership, the release of a security, the issue of jurisdiction, etc.
This paper will try to explain some of these changes. It is important to mention that after 12 years that this instrument had been waiting to enter into force, this will be achieved on September 14, 2011, with Albania’s ratification.
This paper will analyze as well the current situation in Mexico and, taking into consideration its role in the maritime arena, the need for Mexico to harmonize its legislation with the existing international rules.


CHAPTER II.
Historical background
The topic of arrest was discussed since 1930 and several sub-committees studied the different issues. There were also held conferences during 1932, 1937, and after the Second World War three more in 1947, 1949 and 1951. Then during the Brussels Conference in 1952, States reached the first Convention on Arrest of Ships.
The 1952 Convention took in consideration the opinion of different law associations. The most participative were the German, French and Italian. The result of the first meetings were the discussions about the list of maritime claims, especially whether it should be a closed one or not, the issue of a wrongful arrest and the opportunity to arrest a sistership.
Having in mind that the civil law and common law countries approached differently the arrest of ships, the three law Associations were focused on solving issues on what basis, which were clearly related for which claims, arrest would be allowed.
The uniformity issue arose from the German Association in the light of the fact that the maritime liens which granted a security right were different among States. The first draft attempted to provide uniformity among other States; however the rule of wrongful arrest and issues of liability in such event were strongly opposed by the British Association.[1]
As a result of this last conference a Sub-committee was established. The issue of wrongful arrest was still “making noise” to different States. However the principal issue that started to create differences was the opposite idea of the civil law countries which would effect an arrest as a security for any claim whether or not of a maritime nature; on the other hand in the common law countries, especially the United Kingdom this last argument was out of question, considering that in these jurisdictions an arrest in these conditions could only be performed by an action in rem and thus for a claim of maritime nature.
Following meetings of the Sub-committee both group of States (civil law and common law countries) agreed that to start a real harmonization process an accurate procedure must be formulated but in relation to claims secured by a maritime lien exclusively.[2]
Negotiations were suspended due to the Second World War, however in 1947 the CMI forwarded a new questionnaire to different States to continue the work done in 1937 in Paris. Consequently, the British and Dutch Maritime Law Associations thought that efforts should be made to reach wider uniformity on the subject of arrest of ships[3].
The Convention supports this approach and indeed provides that claims which would allow an arrest are only of maritime nature. However recognizing the precautionary purpose of the Convention, it allows the detention of a Ship under the authority of a court pending a find judgment. Or course it does not regulate the seizure of a ship in execution of a given judgment.[4]
Another issue that was considered in this Conference was the one of the discussion on the merits of the claim. Common law countries representatives suggested that by virtue of arrest the jurisdiction on the merits was given to the court where the arrest had been performed. This proposal was not even considered by the French delegation, arguing the unjustifiable and lack of equity of this procedure. Perhaps this argument was made because under the French law the critical point was only to seize temporary the vessel not permanently, and the security to be exercised while the merits of the claim had to be decided in the place of the jurisdiction of the origin of the debt.
The United Kingdom drew always the attention of the parties to be cautious with the language of the Convention. It was their concern that although arrest would be allowed for a wide list of maritime claims (curiously enough of a reproduction of the list of claims for which the Admiralty Court had jurisdiction) that does necessary converts these claims in maritime liens if not recognized by the ley fori. The Convention supports this approach in its article 3 (1) and 9.
The purpose of the Convention is to strike a compromise between the common law and civil law systems in respect the law of ship arrest[5], and provides uniform rules in relation to arrest in a Contracting State.
Finally in 1952 the birth of the first Arrest Convention saw the light and it was ratified by 13 votes and 6 abstentions.
For several years the 1952 Arrest Convention has been served successfully its purpose. Times change and with issues such as the increased need to protect the environment and one ship companies appearing, the security remedy was no longer as effective as it should.
During the 1980’s the Comité Maritime International thought that it was important to update the Maritime Lien and Mortgages and Arrest Conventions. Professor Tony Kegels describes that the diverging interests had changed since 1952; shipowners, carriers, their banks, and P&I Clubs were not the only parties at stake. There were thus three players on the market and in order to achieve uniformity the agreement of each of them should have been looked for and there was a feeling that this was not done, or not achieved at least.[6]
The arrest Convention of 1999 is drafted in a much more precise way. The main change is that the concept of personal liability of the shipowner whose vessel is arrested is clearly stipulated; the list of maritime liens is expanded and it includes even those claims which although considered in 1952 were at that time left out, the situation where an arrest is possible, even if the shipowner is not personally liable is expressly stated. This example will be the advantage of the States that participated.
The text of the CMI was submitted to a Joined Committee the International Maritime Association and the United Nations Conference on Trade and Development (UNCTAD) the so called JIGE, formed by various experts of the two international Institutions.
The draft text was approved in 1997 in a Diplomatic Conference in Geneva and it was crystallized in the final text of 1999 of the Arrest of Ships Conference. It is worth to know that this instrument is going to be in force form the 14 of September of 2011, after the ratification of ten countries, being Albania the last that adopted it.


CHAPTER III.
The International Convention for the Unification of Certain Rules relating to the Arrest of Sea-Going Vessels, 1952.
The Arrest Convention of 1952 appeared into the scene of the international law to harmonize the rules of the arrest of ships procedures in different legal systems law. As noted, the civil law countries adopted a wider approach where a claimant is entitled to arrest any property (maritime and non maritime nature) of a debtor or defendant including a vessel which was found within the jurisdiction of the court ordering the arrest in a foreign jurisdiction. On the other hand common law countries establish a close list according to the principle followed by the action in rem in respect of a maritime claim.[7]
Before the 1952 Arrest Convention was adopted, in a civil law country a vessel could be arrested for any claim of the creditor, even when it was not related to a claim of a maritime nature, but in common law countries, […] a vessel could only be arrested in the limited cases where claimants are entitled to enforce their claim in a proceeding in rem.[8]
Article 1 (1) of the Convention defines what is a maritime claim in respect of which arrest is allowed. It is not a true definition. This article simply gives a list of the different claims that would entitle a claimant to arrest a vessel. The list which is a replica of the United Kingdom Supreme Court of Judicature Consolidation of 1925[9] has been through the years criticized for not catering for circumstances which would clearly lead to a claim of a maritime nature.
The list of maritime claims according to Article 1 (1) is described as follows:
In this Convention the following words shall have the meanings hereby assigned to them:
(1) "Maritime Claim" means a claim arising out of one or more of the following:
(a) damage caused by any ship either in collision or otherwise;
(b) loss of life or personal injury caused by any ship or occurring in connexion with the operation of any ship;
(c) salvage;
(d) agreement relating to the use or hire of any ship whether by charterparty or otherwise;
(e) agreement relating to the carriage of goods in any ship whether by charterparty or otherwise;
(f) loss of or damage to goods including baggage carried in any ship;
(g) general average;
(h) bottomry;
(i) towage;
(J) pilotage;
(k) goods or materials wherever supplied to a ship for her operation or maintenance;
(1) construction, repair or equipment of any ship or dock charges and dues;
(m) wages of Masters, Officers, or crew;
(n) Master's disbursements, including disbursements made by shippers, charterers or agent on behalf of a ship or her owner;
(o ) disputes as to the title to or ownership of any ship;
(p) disputes between co-owners of any ship as to the ownership, possession, employment, or earnings of that ship;
(q) the mortgage or hypothecation of any ship.
Authors have correctly pointed out that it is obvious that the list has not included other claims which would clearly be of a maritime nature, like claims arising out of ship sale and purchase, claims of ship brokers or agents etc. Curiously enough not even all the claims secured by a lien as provided in the 1926 Convention on Maritime Liens and Mortgages feature in this list. Furthermore, the language used, especially in the English version has created difficulties and has been several times subject to the interpretation of the courts.
However the contracting States provided for a close list and in this respect is important to note that only in respect of those claims listed a vessel may be arrested.
The concept of arrest is defined in article 1(2) of the 1952 Convention as:
…the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.
This means that the substantial difference between arrest covered by the convention and seizure excluded from its scope is that the former is a security measure which is requested before the claim is heard on the merits by a court.[10]
In this article it is clearly described that there are two different types of claims, the claim that arises from the merits where clearly in case of a successful judgment, the vessel will be subject to a judicial sale. The second option that the article describes is to stop the vessel and be treated as a security remedy to compel a defendant to perform a payment that has not been made; thus to have assets available to recover such payment when a successful judgment will be obtained.
Article 2 confirms the principle by providing that a ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim, but in respect of no other claim. In this respect, the Convention describes that a vessel flying a flag of a contracting State will only be detained if the claim falls under the claims provided in article 1(1). This provision made aware the civil law countries not to arrest a vessel as a security remedy for any claim, just claims of a maritime nature.
It can be seen that when this article is read together with article 8 (2) of the Convention[11] a vessel flying the flag of a contracting state would be arrested in that contracting State, not only for a claim listed in article 1 (1) but also for any other claim in relation to which the law of that State would allow the arrest. That means that in civil jurisdictions, where arrest is a “conservative measure which may be executed against any asset of a debtor as security for any claim, ships flying the flag of a non-contracting state may, subject to the conditions set forth by the ley fori, be arrested in respect of any claim against the owner.[12] Thus article 8(2) excludes the application of article 2 to vessels flying a flag of a non contracting State. Berlingeri suggests that this is the correct interpretation of Article 8 (2), i.e. all the provisions of the Convention save for article 2 will apply to a vessel flying the flag of a non contracting State.[13]
For the sake of completeness article 8 (1) states that: The provisions of this Convention shall apply to any vessel flying the flag of a Contracting State in the jurisdiction of any Contracting State.
The Court of Appeal of Genoa, stated that in respect of article 8 (2) of the Convention:
A ship flying the flag of a non-Contracting State may be arrested also in respect of a claim other than a maritime claim if a prima facie evidence (fumus boni iuris) of the claim is provided and proof is given of the danger that assets of the debtor may in the future be unavailable for the enforcement of a judgment (periculum in mora).[14]
Finally, in paragraph 4 of article 8 of the Convention provides, that arrest of a vessel would not apply in a contracting state when the vessel is flying a flag of the state in which the arrest is applied for and the claimant has his habitual residence or place of business in that contracting state. In such circumstances ley fori will apply.
The principle is confirmed by the Italian Court in Spezia which states:
The 1952 Arrest Convention is not applicable, pursuant to its article 8(4), in case the person applying for the arrest has its principal place of business in the country where the arrest is applied for and the ship flies the flag of that country.[15]
It is to be understood that the Convention will not regulate arrest procedures in a non contracting State. Indeed after analyzing the last provision, the custom doubt is in case the arrest is made in a non contracting State. Unfortunately the Arrest Convention of 1952 will not describe any provisions in this matter, consequently the procedural law applicable in this cases is the ley fori.
Article 3 (1) deals with the issue of which ship should be arrested. It states that:
[…]a claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship […].
Although not clearly stipulated in this part it is necessary the existence of a relationship between the person liable and the particular ship subject to arrest. This issue was considered by Lord Diplock in The Eschersheim:[16]
…it is clear that to be liable to arrest a ship must not only be the property of the defendant to the action but must also be identifiable as the ship in connection with which the claim made in the action arose…
The existence of the relationship between the person liable and the particular ship has significance; if such a ship is to change ownership before an arrest is made, in such circumstances a claimant may not enforce his claim against that ship which at the time of arrest will not be owned by the person liable. It has to be notice that in this particular issue, Professor Berlingeri describes that during the travaux preparatoires te British delegation pointed out the following:
Supposing Ship A was subject to a maritime claim through collision and was then sold, as that sub clause at present reads the unfortunate buyer of that ship might have another ship in his ownership arrested. That of course, is not what we wanted to achieve, We must accept the fact that if the ship which is concerned with the casualty or occurrence is sold, the maritime lien passes with her and remains upon her in whose ever hand she may before two year; but it would be very hard luck on the buyer of a vessel which was susceptible to a maritime claim, if by resale, he rendered all the rest of his fleet liable to arrest.[17]
However, a claimant may arrest a sister ship as provided for in article 3 (1); A sister ship maybe arrested only subject to the conditions laid down in article 3 (2) which states that: “ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons”. The relevant time to define the ownership of a sistership is the time to arrest. What matters is that at the time of arrest the person liable owns all the shares of the sister ship although he / she did not owned all the share of the ship in respect of which the maritime claims arose.
Professor Berlingieri gives an example under which a ship shall be deemed to be in the same ownership, and I quote:
If ship A, in respect of which the claim arose, is owned for 20 sharesby Mr. W, for 20 shares by Mr. X and for 20 shares by Mr. Y, and ship B is owned by 20 shares by Mr. W, for 30 shares by Mr X and for 10 shares by Mr Z, ship B may not be arrested. But ship B may be arrested if 50 out of the 60 shares therein are owed by Mr W and 10 by Mr X.
A sistership arrest is not allowed if the claim is one of those listed under article 1 (1) (o), (p) and (q)[18]; however it is important to note Article 10 and to take in consideration the reservations made by a contracting state.[19]
However, the particularities about property and possession are the quid of this provision. Sometimes the owner is a demise charterer or even a voyage or a time charterer, and in these circumstances the property interest is shifted and as in any maritime affairs the difficulty arises as to who is the liable party.
Article 3 (4) describes that in the case of a charter by demise of a ship when the charterer and not the registered owner is liable in respect of the maritime claim, the claimant may arrest the ship or any other ship in the ownership of the charterer by demise. In The "Sargasso" case in France, the Court of Montpellier held that:
…(1) Pursuant to article 3(4) of the 1952 Arrest Convention a bareboat chartered vessel may be arrested as security for a claim against the bareboat charterer.[20]
Additionally, the last part of article 3 (4) provides that the provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship. In the case of a voyage or time charterer, the voyage charter can be liable for a loss or damage under a contract of carriage as the time charters can also be liable for contracts of carriage, repairs or bunker. Berlingieri describes that a uniform interpretation of Art. 3 (4) will be reached when speaking about the same rights of a demise charter.[21]
Article 4 of the 1952 Arrest Convention states that: a ship may only be arrested under the authority of a Court or of the appropriate judicial authority of the contracting State in which the arrest is made. This provision means that if a ship is arrested it has to be under the powers of a court. Arrest can only be ordered by the court that has jurisdiction. No self defense is allowed and the claimant has to follow the rules and principles of justice.
Article 9 says that nothing in this Convention shall be construed as creating a right of action, which, apart from the provisions of this Convention, would not arise under the law applied by the Court which was seized of the case, nor as creating any maritime liens which do not exist under such law or under the Convention on maritime mortgages and liens, if the latter is applicable. In this case the Court that will decide if the arrest can be exercised by the claimant has also to take in consideration if it arises from a maritime lien according to the 1926 Liens and Mortgage Convention or if the latter is applicable in the ley fori.
Article 9 is a very important provision considering that the maritime claims are not secured by the same maritime liens in different jurisdictions. As the British delegation pointed out, only few of these claims listed in article 1(1) are secured under English law by a maritime lien; therefore it was important to note that if the ley fori does not grant a maritime lien that can certainly not arise out of the Convention. It is for this reason as well that article 3 (1) is subject to article 9.[22] Thus excluding the droit de suite characteristic of a lien from the maritime claims as noted above a change in ownership before the arrest effected would make the arrest invalid.
Article 5 of the Convention provides that the Court or other appropriate judicial authority within whose jurisdiction the ship has been arrested shall permit the release of the ship upon sufficient bail or other security being furnished, save in cases in which a ship has been arrested in respect of any of the maritime claims enumerated in article 1, (o) and (p).
For the procedure of the release of the vessel article 5 provides that the Court shall permit the release of the vessel if sufficient security has been provided. This provision is closely related to article 3 (3) which also provides when a vessel shall be released […] if a ship has been arrested in any of such jurisdictions, or bail or other security has been given in such jurisdiction either to release the ship or to avoid a threatened arrest, any subsequent arrest of the ship or of any ship in the same ownership by the same claimant for the maritime claim shall be set aside.
The money of the bail paid to the court usually is an obligation that undertakes the P&I Club which the shipower uses. In fact this is not the only fund that nowadays is being used (explanation will be given in the chapter of the 1999 Arrest Convention).
Another fundamental issue that civil law and common law countries discussed during the travaux preparatoires and which brought tension are the provisions described in article 6 discussing the liability of a wrongful arrest. The Convention’s approach is to leave this to the discretion of the domestic law of the contracting State.
Unfortunately the provision does not solve the differences and still supports the practice of forum shopping.
Concluding, the provisions of Article 6 in the light of the differences for compensation in cases of a wrongful arrest between civil law and law countries could not conciliate the issue and consequently, and thus the assessment of damages in this matter will again be governed by the domestic law of each Contracting State.
Under the 1952 Arrest Convention and due to the intentions to fulfill the postures of all the States involved, as it has been discussed that the judicial process of the arrest of a ship has to be considered as a provisional measure without taking in consideration the merits of the claim.
Article 7, in the attempt to bridge the gap between the different methods of establishing jurisdiction of the two major systems, provides that; the Courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts, or in any of the following cases namely.
Article 7(1) (a) if the claimant has his habitual residence or principal place of business in the country in which the arrest was made; (b) if the claim arose in the country in which the arrest was made; (c) if the claim concerns the voyage of the ship during which the arrest was made; (d) if the claim arose out of a collision or in circumstances covered by article 13 of the International Convention for the unification of certain rules of law with respect to collisions between vessels, signed at Brussels on 23rd September 1910; (e) if the claim is for salvage; (f) if the claim is upon a mortgage or hypothecation of the ship arrested.
Article 7 (2) provides that […] if the Court within whose jurisdiction the ship was arrested has no jurisdiction to decide upon the merits, the bail or other security given in accordance with article 5 to procure the release of the ship shall specifically provide that it is given as security for the satisfaction of any judgment which may eventually be pronounced by a Court having jurisdiction so to decide…
It is not clear from the wording of this rule whether the judgment of a court having jurisdiction on the merits entitles the claimant to payment without any need for its recognition and enforcement in the jurisdiction of the court where the bail or other security is provided, or whether such recognition and enforcement are required.[23] Following the practice of States most probably there will be a need for a decision of a national court to recognize and enforce a judgment obtained in a different jurisdiction.
According to Berlingieri Section 26 had its origin in Article 7 (2) of the Arrest Convention of 1952, which deals with the situation which arises when the court, within whose jurisdiction a ship has bee arrested, has no jurisdiction to determine the case upon the merits. Section 26 was intended to make provision and does make provision for the case in which, after a plaintiff has issued a writ in rem and arrest the ship, the owners or other persons interested in that ship successfully apply for a stay of proceedings on the ground (a) that the parties had a greed to submit the dispute to arbitration, or (b)that the dispute should be to the determination of the courts of another country.
In terms of article 7 (3)[24] the jurisdiction of the courts of the State where the ship is arrested is not exclusive and therefore, the claimant is free to choose by virtue of agreement a different court which will may have jurisdiction in the case.[25]
Examples like this in terms of relationship of the court that can decide on the merits pursuant to arrest is the Admiralty court by itself and in terms of the action in rem is entitled to decide both issues of the arrest and the “original claim”. In terms of a civil law country the Procedural Civil Code will give the jurisdiction to the court to give a judgment on the merits or to redirect it to the court of the law of the contract which was breached; while under its authority the vessel can still arrested or released upon sufficient bail or security is given.
It is important to note that if the claimant does not submit the claim on the merits to the competent court, the vessel of security shall be released.[26]


CHAPTER IV.
The 1999 Geneva Convention on Arrest of Ships
The purpose of a new Convention was to bring the practice of arrest of ships up to date and in accordance with the changes that had taken place in maritime operations since the adoption of the 1952 Arrest Convention.
The joint Governmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE) was established by IMO and UNCTAD to review the maritime liens and mortgages conventions and related enforcement procedures. After drafting the final text of the International Convention on Maritime Liens and Mortgages of 1993 JIGE decided to examine the 1952 Arrest Convention due to the changes and developments of the MLMC of 1993.[27]
During the seventh session of the JIGE in Geneva in 1994 the first draft of the new Arrest Convention making special reference to articles 1 (Definitions), 3 (Exercise of the right of to arrest) and 5. (The Right of re arrest and multiple arrest).
In April of 1997 a new set of draft articles was prepared at the request of the JIGE, IMO and UNCTAD secretariats which constituted the basis of the Discussions at the Diplomatic Conference of UNCTAD in 1999.
The text of the Convention was adopted on March 12 of 1999 and it will come into force on September 14 of 2011 with the signatures of ten countries (Albania, Algeria, Benin, Bulgaria, Ecuador, Estonia, Latvia, Liberia, Spain and the Syrian Arab Republic).
Article 1 (1) of the 1999 Convention still does not give a precise definition of what is a maritime claim. The first conflict developed over whether or not the new Convention should include a closed and exhaustive list of maritime claims or an open-ended list.[28]
Although many options were considered, at the end article 1 (1) of the 1999 Convention provides for a closed list of maritime claims which would allow arrest. However the list was expanded to include additional claims.
The new claims were for: (d) damage or threat of damage to the environment; (e) costs and charges of wreck removal; (n) port, dock, harbour dues and charges; (q) insurance premiums (including mutual insurance calls) in respect of the ship; (r) any commissions, brokerages or agency fees in respect of the ship; plus some modifications for example in paragraph (m) the concept of reconstruction.
Each and every one of the last maritime claims were added in the draft because of the changes and the development of the shipping sector.
The introduction of paragraph d) in article 1(1) which deals with several concepts such as damage, threat of damage caused by the ship to the environment, measures taken to prevent, minimize, or remove such damage, compensation for such damage; costs of reasonable measures[29] of reinstatement of the environment was necessary considering the increased concerns about the environment. During the drafting of the Convention, several delegations tried to give an answer to all these matters caused by accidents around the world that happened during the lapse of 40 years.
The Shipping industry wanted some security for their vessels to make front to all the economic losses attached to an environmental accident [bear in mind the unrecoverable environmental damage that this kind of losses produces]. Actually the wording of this paragraph is taken form article 1 (7) Convention on Civil Liability for Oil Pollution Damage, 1969 (hereinafter referred to as the “1992. CLC Protocol”).
In respect of paragraph e) that deals with the costs of a wreck removal. The drafters wanted to make sure that although the wreck of a vessel was no longer considered as subject to a maritime lien according to the final text of the International Convention on Maritime Liens and Mortgages of 1993 (herein after MLMC 1993), this provision gives security to the cargo of a sunk vessel as well as the costs of the removal of the ship. Moreover wreck had to be qualified as a maritime claim even if the costs of such removal are paid out of the proceeds of sale before all other claims secured by a maritime lien on the vessel.[30]
Giving continuity to the issue of maritime liens with the list of maritime claims, paragraph n)[31] of Article 1(1) of the Arrest convention has to be read with article 4 the MLMC 1993 which in its (1) is recognizes that a claim arising from a port, canal, and other waterway dues and pilotage dues are secured by a maritime lien.
Paragraphs r) and q) have to be considered as claims listed in Article (1) that are very related. Both of them have to deal with insurance contracts and the link that makes them special is the wording in respect of the ship in paragraph (r). The interpretation of this wording is clearly referring to the operation of the ship.[32]
However, paragraph r) deals with the commissions, brokerages or agency fees payable in respect of the ship or on behalf of the ship owner or demise charterer. Therefore commissions and brokerages may be due in relation to insurance contracts.[33] This kind of payments are always covered by a P&I Club or any other type of insurance. On the other hand but in a very close way paragraph q) includes insurance premiums and mutual insurance calls. However, the premium must be related to the ship the arrest of which is requested[34]. Such relationship has to be in respect of the vessel (same as paragraph (r)); it does not need to be physical but the insurance has to cover the loss.
Finally the inclusion of paragraph q) as a maritime claim made more obvious that all kinds of protection and indemnity cover are included such as liabilities in respect of passengers, seamen, and third parties, damage to property, liability for pollution, liabilities in respect of wreck removal. Therefore the analyzed maritime claims are also an answer to the view and extent that the Convention gives in the light of the harmonization among contracting and non contracting States.
In the 1999 Convention the definition of arrest according to article 1(2)[35] is similar to the 1952 Convention and still includes both concepts of civil and common law countries; the saise conservaitore and action in rem, respectively. As with the 1952 Convention, this instrument will not apply to the seizure of the execution or satisfaction of a judgment or other enforceable instrument.
Moreover, it clearly establishes that the arrest is permissible in relation to a maritime claim which is not necessary secured by a maritime lien. The Convention provides in article 9 that no maritime liens can be created by virtue of the application of this Convention[36].
According to Professor Tetley the convention explains in article 8 (3)[37] that:
[…] the new arrest convention would recognize many, but seemingly not at all, special legislative rights[38], meaning that the Convention of 1999 will allow the governments to exercise the ley fori in respect of the statutory provisions concerning liens and mortgages.
Moreover, with this provision the avoidance of any inconsistency on the rights of each State to detain a vessel will distinguish an arrest arising from claim of article 1(1) and any detention from an administrative authority in terms of any domestic legislation.
The Convention provides in article 3 for the exercise of the right of arrest. Article 3 (1) establishes as a requirement for the arrest of the ship in respect of which a maritime claim arose the personal liability of her owner[39] The article has been drafted in much clearer language than in the 1952 Arrest Convention and puts aside any doubts whether or not there is a need for the personal liability of the owner.
Article 3 (1) b [considering that most of the national laws accept the liability of the demise charter] provides that the ship in respect of the maritime claim arose would be arrested even when the demise charter is the person liable.
The arrest of a vessel is also allowed in respect of which a maritime claim arose against an owner, demise charterer, manager or operator of the ship and is secured by a maritime lien that arises under the law of the state where the arrest is made.[40] In such circumstances and considering that all nations recognize the same characteristics of a maritime lien there is no need for the personal liability of the owner for the claim secured by a maritime lien to be enforced against the ship in respect of which the maritime claim arose. The lien attaches to the ship from the moment that gave birth to the claim and follows that ship in whosoever hands it may be found. Thus, a claimant will be able to enforce his / her claim even against a bona fide purchaser.
A close interpretation would follow even for the claims in relation to mortgage. The holder of the security, though he normally may enforce it by means of seizure and forced sale of the ship, needs sometimes to make recourse to a provisional measure such as the arrest in order to prevent the sailing of the ship and gain time for the subsequent seizure.[41]
In respect of the arrest of a sister ship, Article 3 (2) provides that:
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
Article 3 (2) as it is in the 1952 predecessor still requires that a sister ship to be arrested shall be in the same legal ownership as the particular ship. The language of the convention seems to restrict the right to look beyond the legal ownership and to arrest a ship which is beneficially owned by the personal liable.
In this respect to this article the author also quotes Professor Tetley who states that:
Article 3 (2) is useful, in authorizing the arrest of ships belonging to all categories of charterers for maritime claims on which they are liable in respect of the “offending ship”, as well as of sister ships belonging to the owner of the “offending ship” who is personally liable on such claims. The provision, like article 3 (1) on the arrest of the “offending ship” itself, also quite properly identifies the time of the arrest, rather than the time of the issue of the writ in rem or the time of the filing of the statement of the claim, as the relevant moment for determining when the right of the arrest arises.[42]
However, this provision establishes the restriction of arrest of a sister ship considering the “beneficial ownership” and the “registered ownership”, this comes regarding the maritime business and the dynamism know in this matter. Sometimes beneficiary and registered ownerships are not the same person and consequently liability falls over a different person.
The normal practice of shipping shows the existence of a “parent company” (beneficially owned) that owns many vessels but these are operated (charter parties and demise charter) by other holding companies (registered ownership) but still the difference of juridical persons is at glance.
As in the 1952 Convention re-arrest and multiple arrest is prohibited. However the 1999 Convention clarifies any doubts in respect to the circumstances under which a Court would make an exception to the rule.
The 1999 Convention provides in article 5 (1) that in respect to a vessel already arrested but which has been released, the court can order its re arrest for the same claim unless the nature or amount of the security in respect of that ship already is inadequate, on condition that the aggregate amount of security may not exceed the value of the vessel itself.[43]
Article 6 (1) of the Convention allows the court that made the arrest to impose on the claimant the obligation to provide counter security for losses that may be incurred by the defendant as a result of the arrest and for which the claimant may be found liable.
In article 6 (2) describes that in case of a wrongful or unjustified arrest or when the provided and demanded security is excessive, the Court 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 the ship. In addition, this article confirms the point of view of the civil law system in case the arrest effected is erroneous without proper legal motivation, but not motivated by bad faith or gross negligence[44].
In terms of the merits of the claim, the 1999 Convention makes a clear statement that the court where an arrest has been effected or security provided to obtain release has jurisdiction to determine the case on its merits, unless there is a valid jurisdiction or arbitration clause. It clearly sets out that when an arrest is made in a Contracting State, its Court shall redirect the merit of the case to an arbitral tribunal or another Court which accepts jurisdiction, if both parties agreed so prior the arrest procedure.
However, in accordance to article 7.2 the Courts of the State in which an arrest has been effected, or security provided to obtain the release of the ship, will refuse to assume its jurisdiction if this refusal allowed by the law of that State and a Court of another State
accepts jurisdiction. This article is written in the light of the total avoidance of a forum shopping. Professor Lynn states that:
[…]most of the work to improve the ability of proactive forum shopping is done by Article 7(1). Article 7(1) permits a ship to be arrested in the jurisdiction where it is currently lying, while at the same time allowing the case to proceed on the merits in the forum stipulated to by the parties. The language of Article 7(1) seems clear on this procedure.
Finally the scope of application of the 1999 Convention provided in article 8 reflects one of the most significant changes and it reads as follows:
Article 8: this Convention shall apply to any ship[45] within the jurisdiction of any State Party, whether or not that ship is flying the flag of a State Party.
In short this Convention will be applicable to a non contracting state vessel within the jurisdiction of a contracting State regarding the maritime claims of article 1(1) as a sole basis unless the reservation in article 10 (1) is applied by the State that performed the arrest.


CHAPTER V.
The Ship Arrest Procedure in Mexico
Mexico since the beginning of contemporary times has been considered as a very important State in the developing world in international affairs. At the same time Mexico is a contracting party in 70% of Maritime International Instruments adopted by the IMO.
Mexico is ranked second in Trade Agreement Treaties worldwide, with a total number of 43 countries in three continents which represent the basis for foreign trade and foreign investment.
The benefits are uncountable, considering that this amount of trade agreements means a potential benefit of more than a billion consumers and represents 66% of international import operations and 75% of the World Gross Income.
International Trade Agreements for Mexico are the key to progress and development which involves the exchange of goods using all kind of transportation, and in terms of shipping the sector is growing.
According to the Maritime Authority during the last report of February 2011 Mexico managed to 44 million tons of general cargo, divided in 22 million tons of crude oil and mineral 10 million tons of mineral bulk cargo.
The gross tonnage of Mexican fleet is mainly formed by oil tankers, chartered and they work mostly in domestic trade with just a few trading beyond Mexican Borders, mostly with the United States of America.
All these facts mentioned mean that the Mexican shipping industry is growing. In order to cope with such progress the development of the legal regime has to be in the same range and according to international standards.
For the purpose of this paper it is important to note that Mexico has not ratified any of the international conventions on the Arrest of Ships. Mexico follows the monist tradition which means that by virtue of ratifying a treaty and publishing it in the Federal Official Gazette the treaty will be applicable in the country and will be considered Supreme Law second only to the Constitution. It will certainly prevail over other national federal laws.
Mexico enacted the Navigation and Commerce Act in 1964. No provisions reflecting the 1952 Arrest Convention – which as stated is not ratified – were made in the Act. In 1994 the Mexican Legislator enacted the Federal Navigation Act which replaced the former in the light of the North American Free Trade Agreement for the Foreign Investment in Shipping Companies. The opportunity was not seized and the Act remained again silent on issues of arrest. The latest amendment of the Act was in 2006 which is again marked by a total indifference to provide comprehensively issues of arrest.
Thus, in Mexico there is no particular legislation to deal with this special procedure and a claimant will have to rely on the typical civil procedure in a Federal Courts, which does not make any distinctions whatsoever in relation to claims of a maritime nature.
The procedure of arrest of a ship in Mexico has no particular differences from another country of a civil law system. Under Mexican law a ship is considered as a hybrid object, a movable object because of its own nature but is treated as an in movable because of the range of its size, being an object that requires registration for proprietary purposes and the recognition of a hypothec.
According to Articles 2539 to 2545 of the Federal Civil Code the concept of arrest is called “Secuestro” and is considered part of the Deposit Contract. One of the characteristics of the Secuestro is that can be conventional or judicial. For the purpose of this paper reference will be made only to the judicial secuestro that is ordered by a court judgment. However the wording in a commercial procedure is called embargo and for the case of an arrest as a precautionary measure is called embargo precautorio.
In resolving private commercial disputes, a Mexican court must follow the federal Commerce Code. In addition for matters of procedure, the court follows the applicable Federal Civil Proceedings Code. Moreover the Court must follow international law on procedural matters. Concerning international maritime contract disputes, the court must consider the parties’ choice of mechanism (i.e. arbitration) for resolving a dispute and their choice of forum.[46]
In case of maritime claims, as there is no special legislation incorporating either the 1952 or 1999 Arrest Convention there is a lack of special procedure to stop a ship which needs to be detained as a security for the eventual satisfaction of a judgment on the merits of the claim.
To note that the Navigation and Maritime Commerce Law recognizes maritime privileges but just for the issue of ranking when a judgment needs to be enforced on the property. Thus for the arrest of a ship in relation to a maritime claim the procedure to be followed is the same as in any other arrest procedure notwithstanding the peculiar nature of the claim and not taking into consideration the necessity for immediate actions when it comes to security measures against ships.
Consequently the process does not treat a ship as a special object, the sole characteristic is to be considered as movable object that can be arrested for any debt and the claimant is trying to compel the debtor to perform his payment duties.
The procedure of arrest a ship (movable object) begins when the creditor files a claim asking the court for an embargo precautorio prohibiting the debtor from moving or transferring title or other rights to cited assets which automatically are attached to the debtor just for the sake of owning them and pending a resolution on the merits in a commercial proceeding.
Although attachment is available to all creditors, there are certain requirements that must be complied with:[47]
a) the petition for an attachment order as a precautionary measure has to be well supported by documents or witnesses showing that (i) petitioner has a prima facie underlying claim on the merits; and (ii) there’s a potential risk that debtor will hide or transfer
b) ownership rights on his real or personal property. Once the attachment order is granted, the creditor must post a bond that will indemnify the debtor for damages if there’s any wrongful attachment, or if creditor fails to obtain judgment in the suit. The attachment will be then executed only after the bond is posted, (The amount required for the bond is left to the court’s decision).
c) the attachment will be ineffective if there’s no suit filed within three days of the execution. Such term can be extended if the suit has to be filed or followed in any foreign jurisdiction.
As there is no special procedure, the Court will order the detention of a vessel and as a sui generis procedure the next step will probably be the order of the arrest followed by the proper notice from the Court to the Maritime Administration. When the submission is already done it has to be properly handed to the Federal District Court which the claimant appointed. Unfortunately this process will last for days, much longer than a maritime litigator would imagine. As it was mentioned the maritime international trade has developed so quickly that nowadays a vessel can only be anchored in a port just a few hours and this procedure proves most of the time a futile tool in the hands of a creditor.
However, as there is no national law regulating such matters like both the Arrest Conventions, the claimant can continue with the merits of the claim. The court will order execution through a public sale of the attached property, and the author believes will give uncertainty to any shipowner that makes maritime business Mexico.
As the procedure continues, the petitioner’s request must be in writing. The defendant does not receive notice until the court issues its ruling. If the petitioner submits its request after a commercial proceedings has begun (rather than as a pre-filing matter), the court of competent jurisdiction is the same as that of the commercial proceeding.[48]
With all the facts mentioned, if Mexico ratifies the 1999 Arrest convention will have not only the opportunity to give certainty to international maritime procedures, but also will develop the maritime practice in its territory (seeking for legal harmonization).
Many advantages will be done if Mexico ratifies the 1999 Arrest Convention. However the national laws as the Navigation and Commercial Act and the Federal Civil Proceedings Code must change to bring in provisions for this special maritime procedure.
Mexico can certainly provide for a wider list of maritime claims for which arrest would be allowed. However, for the vessels flying the flat of a contracting state such arrest would be made only in relation to those claim specifically provided for in article 1(1) of the 1999 Convention. In relation to vessels flying the flag of a non contracting State, Mexico should reserve its right in terms of Article 10 and not apply the Convention to such vessels.


CHAPTER VI.
Conclusions
1. It has to be noticed that either the 1952 or the 1999 Arrest Conventions are a beneficial legal asset to the international community due to the main objective to harmonize the procedures of arrest in different legal systems.
2. The legal certainty that the 1952 Convention has given to the maritime community is the basis for hopping that the 1999 Convention will also be as successful as the first one.
3. If more countries ratify the 1999 Arrest Convention the underpinning purpose of the Convention of harmonized rules in relation to such procedures will be achieved.
4. Mexico as a well known actor in the maritime community and as a country that is growing, to confirm the development that has achieved over the last 15 years needs to ratify the 1999 Arrest Convention in order give certainty to its own fleet and to the vessels entering its territory.
5. The legal certainty for vessels flying a flag contracting State that trades with Mexico will be increased and more fluent for the sake of the business. That will be accompanied with an increase in the income of the country and will be in favor Mexico and its Ports.
6. Litigators will feel free to use international applicable law avoiding forum shopping due to the restrictions of the Convention itself.
7. Mexico as contracting State can increase the gross tonnage of its fleet of oil tankers and other types of vessels and be sure that when arriving to any other contracting State, reciprocity in terms of the international instrument will be applied and Mexican Shipowners can be sure of the lack of arbitrary detentions.
8. It is also important that Mexico ratifies as soon as possible this Convention and be an example of development and progress.


BIBLIOGRAPHY
BOOKS
  1. Arrest of Ships A Commentary on the 1952 and 1999 Arrest Conventions, Fourth Edition, Francesco Berlingieri, CMIInforma, London, 2006.
  2. Enforcement of Maritime Claims, Fourth Edition, D.C. Jackson, LLP London Singapore 2005.
  3. International Civil Procedure, Shelby R Gubbs, Kluwer Law International, The Hague, London, New York, 2003
  4. Manual de Derecho de la Navegación Marítima, Jose Luis Gabaldón García, Jose María Ruiz Soroa, Ed. Marial Pons Ediciones Juridicas y Sociales, S.A., Madrid, Barcelona, 2002
  5. Curso de Derecho Marítimo, Ignacio Arroyo Martínez, Editorial, Thomson Civitas , Madrid 2005
  6. Derecho marítimo/ Raúl Cervantes Ahumada, Editorial Porrúa, México D.F. 2001
  7. Maritime Liens and Claims, Tetley, W., 2nd Edition, International Shipping Publications, Montreal, In the United Kingdom 1998
ARTICLES
1. Berlingieri, ”The Scope of Application of the 1952 Brussels Convention on the Arrest of Ships”, JMLC, Vol. 22, No. 3 (1991).
2. Berlingieri, f., ”The 1952 Arrest Convention Revisited” (2005) LMCLQ
3. Robert W. Lynn, A Comment on the New International Convention on Arrest of Ships, 1999, 55 U. Miami L. Rev. 453
4. Tetley, William, Arrest Attachment and Related Maritime Law Procedures 73 Tul. L. Rev. 1895 (1998-1999)
5. Kegels, Tony, Arrest of Ships, The End of Uniformity,
6. Md. Rizwanul Islam Arrest of Ship Conventions 1952 and 1999: Disappointment for Maritime Claimants 38 J. Mar. L. & Com. 75
CASE LAW
1. Morsviazsputnik Satellite Communications and Navigational Electronic Aids v. Azov Shipping Company-The “Yuriy Dvuzhilny”, Court of Appeal of Genoa 12 February 2000 ” (2001 Dir. Mar. 1113).
2. The Eschersheim; Owners of the motor vessel Erkowit v Owners of the ship Jade; Owners of cargo lately laden on board the motor vessel Erkowit v Owners of the ship Eschersheim - [1976] 1 All ER 920
3. The "Sargasso" Cour d'Appel of Montpellier 1 December 2003, SA DK Lines v. Petredec Ltd. (2004 DMF 435).
4. Tarros S.p.A. Compagnia di Navigazione v. Cantieri Navali San Marco S.r.l. - The 'Vento di Maestrale' Tribunal of La Spezia 10 February 2004, Diritto Marittimo (2004), volume 106 , issue 2 , p. 452 http://www.ppl.nl/
WEBSITES
http://www.comitemaritime.org
http://www.i-law.com/ilaw/doc/view.htm?id=130438
http://www.lexisnexis.com.ejournals.um.edu.mt
http://www.solcargo.com.mx/mats/Publications/Collections%20in%20Mexico.pdf
http://www.kegels- co.be/pdf/file/Kegels


ANNEX I
International Convention for the Unification of Certain Rules relating to the Arrest if Sea-Going Vessels, 1962


ANNEX II
The 1999 Geneva Convention on Arrest of Ships



[1] Berlingieri, Francesco “ Arrest of ships a commentary on the 1952 and 1999 arrest Conventions, CMI p.3
[2] In accordance to the Maritime Lien and Mortgage Brussels Convention of 1926
[3] Berlingieri, p. 5.
[4] Berlingeri, p. 6.
[5] Berlingieri, at 4.
[6] Kegels, Tony, Arrest of Ships, The End of Uniformity, www.kegelsco.be/Default.aspx?catID=2&pgeID=&lngID=2
[7] Tetley, W., Maritime Liens and Claims, 2nd Edition, International Shipping Publications, Montreal, In the United Kingdom, the action in rem is the characteristic of admiralty proceeding to enforce all maritime claims. It tends to be regarded primarily as a procedural device to secure the defendant’s personal appearance in the suit, rather than as an action against the wrongdoing ship
[8] Berlingieri, note 4 at pp. 4
[9] Elihu, Lauterpacht, C. J. Greenwood, International Law Reports, Cambridge University Press, 2004, United Kingdom p. 4
[10] Berlingeri, paragraph 52.272 at pp.89
[11] A ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in article 1 or of any other claim for which the law of the Contracting State permits arrest.
[12] Berlingieri, ”The Scope of Application of the 1952 Brussels Convention on the Arrest of Ships”, JMLC, Vol. 22, No. 3 (1991) 405 at pp. 407-408.
[13] Berlingieri, at para 52.839 p 307
[14] Morsviazsputnik Satellite Communications and Navigational Electronic Aids v. Azov Shipping Company-The “Yuriy Dvuzhilny”, Court of Appeal of Genoa 12 February 2000 ” (2001 Dir. Mar. 1113).
[15] Tarros S.p.A. Compagnia di Navigazione v. Cantieri Navali San Marco S.r.l. - The 'Vento di Maestrale' Tribunal of La Spezia 10 February 2004, Diritto Marittimo (2004), volume 106 , issue 2 , p. 452 http://www.ppl.nl/
[16] The Eschersheim; Owners of the motor vessel Erkowit v Owners of the ship Jade; Owners of cargo lately laden on board the motor vessel Erkowit v Owners of the ship Eschersheim - [1976] 1 All ER 920
[17] Berlingieri, at 158
[18] (o ) disputes as to the title to or ownership of any ship; (p) disputes between co-owners of any ship as to the ownership, possession, employment, or earnings of that ship; (q) the mortgage or hypothecation of any ship.
[19] The High Contracting Parties may at the time of signature, deposit or ratification or accession, reserve:
(a) the right not to apply this Convention to the arrest of a ship for any of the claims enumerated in paragraphs (o ) and (p) of article 1, but to apply their domestic laws to such claims; (b) the right not to apply the first paragraph of article 3 to the arrest of a ship within their jurisdiction for claims set out in article 1 paragraph (q).
[20] The "Sargasso" Cour d'Appel of Montpellier 1 December 2003, SA DK Lines v. Petredec Ltd. (2004 DMF 435).
[21] Berlingieri, f., ”The 1952 Arrest Convention Revisited” (2005) LMCLQ 237 -416 at 332.
http://www.i-law.com/ilaw/doc/view.htm?id=130438
[22] For more information, look in the travaux preparatoires on this subject of the Arrest Convention of 1952.
[23] Berlongeri, para. 52.582 at o.221
[24] If the parties have agreed to submit the dispute to the jurisdiction of a particular Court other than that within whose jurisdiction the arrest was made or to arbitration, the Court or other appropriate judicial authority within whose jurisdiction the arrest was made may fix the time within which the claimant shall bring proceedings.
[25] Berlingeri at pp. 277
[26] Article 7 (4)
[27] . Berlingieri para. 99.4 at 9 The decision was made in May 1993 by the United Nations /IMO Conference during the adoption of the new Convention on Maritime Liens and Mortgages
[28] Robert W. Lynn, A Comment on the New International Convention on Arrest of Ships, 1999, 55 U. Miami L. Rev. 453 p. 5
[29] “Preventive measures” means any reasonable measures taken by any person after an incident has occurred to prevent or minimize pollution damage.
[30] Berlingieri, para 99.31 at 64
[31] Claims arising out of port, canal, dock, harbour and other waterway dues and charges;
[32] Berlingeri, para 99.57 at 82
[33] Ibid
[34] Ibid, para 99.50 at 81
[35] . "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.
[36]Article 9 of the 1999 Arrest Convention
[37] 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.
[38] Tetley, William, Arrest Attachment and Related Maritime Law Procedures 73 Tul. L. Rev. 1895 (1998-1999) note 404 p. 1963
[39] Arrest is permissible of any ship in respect of which a maritime claim is asserted if: 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;
[40] Art. 3 (1) (e) of the 1999 Arrest Convention
[41] Berlingieri para 99.61 at p.85
[42] Ibid. p. 1969
[43] Article 5 (1) a
[44] Tetley, William, Arrest Attachment and Related Maritime Law Procedures 73 Tul. L. Rev. 1895 (1998-1999) p. 1971
[45] Emphasis added
[46] Vera V. Manuel, Grubbs R. Shelby editor, in International Civil Procedure, Kluwer Law International, Great Britain, 2003, p. 434
[47] http://www.solcargo.com.mx/mats/Publications/Collections%20in%20Mexico.pdf
[48] Vera V. Manuel, Grubbs R. Shelby editor, in International Civil Procedure, Kluwer Law Inrternational, Great Britain, 2003, p. 444

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