- 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:
Article 1
Definitions
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, converting or 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.
Article 2
Powers of arrest
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.
Article 4
Release from arrest
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 re-arrest 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.
Article 8
Application
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.
Article 10
Reservations
1. Any State may, at the time of signature, ratification, acceptance,
approval, or accession, or at any time thereafter, reserve the right to
exclude the application of this Convention to any or all of the
following :
- (a) ships which are not seagoing;
(b) ships not flying the flag of a State Party;
(c) claims under article 1, paragraph 1 (s).
- 2. A State may, when it is also a State
Party to a specified treaty on navigation on inland waterways, declare
when signing, ratifying, accepting, approving or acceding to this
Convention, that rules on jurisdiction, recognition and execution of
court decisions provided for in such treaties shall prevail over the
rules contained in article 7 of this Convention.
Article 11
Depositary
This Convention shall be deposited with the Secretary-General of the
United Nations.
Article 12
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open for signature by any State at the
Headquarters of the United Nations, New York, from 1 September 1999 to
31 August 2000 and shall thereafter remain open for accession.
- 2. States may express their consent to
be bound by this Convention by:
- (a) signature without reservation as to ratification, acceptance or
approval; or
(b) signature subject to ratification, acceptance or approval, followed
by ratification, acceptance or approval; or
(c) accession.
- 3. Ratification, acceptance, approval or
accession shall be effected by the deposit of an instrument to that
effect with the depositary.
Article 13
States with more than one system of law
1. If a State has two or more territorial units in which different
systems of law are applicable in relation to matters dealt with in this
Convention, it may at the time of signature, ratification, acceptance,
approval or accession declare that this Convention shall extend to all
its territorial units or only to one or more of them and may modify this
declaration by submitting another declaration at any time.
- 2. Any such declaration shall be
notified to the depositary and shall state expressly the territorial
units to which the Convention applies.
- 3. In relation to a State Party which
has two or more systems of law with regard to arrest of ships applicable
in different territorial units, references in this Convention to the
Court of a State and the law of a State shall be respectively construed
as referring to the Court of the relevant territorial unit within that
State and the law of the relevant territorial unit of that State.
Article 14
Entry into force
1. This Convention shall enter into force six months following the date
on which 10 States have expressed their consent to be bound by it.
- 2. For a State which expresses its
consent to be bound by this Convention after the conditions for entry
into force thereof have been met, such consent shall take effect three
months after the date of expression of such consent.
Article 15
Revision and amendment
1. A conference of States Parties for the purpose of revising or
amending this Convention shall be convened by the Secretary-General of
the United Nations at the request of one-third of the States Parties.
- 2. Any consent to be bound by this
Convention, expressed after the date of entry into force of an amendment
to this Convention, shall be deemed to apply to the Convention, as
amended.
Article 16
Denunciation
1. This Convention may be denounced by any State Party at any time after
the date on which this Convention enters into force for that State.
- 2. Denunciation shall be effected by
deposit of an instrument of denunciation with the depositary.
- 3. A denunciation shall take effect one
year, or such longer period as may be specified in the instrument of
denunciation, after the receipt of the instrument of denunciation by the
depositary.
Article 17
Languages
This Convention is established in a single original in the Arabic,
Chinese, English, French, Russian and Spanish languages, each text being
equally authentic.
DONE AT Geneva this twelfth day of March, one thousand nine hundred and
ninety-nine.
- IN WITNESS WHEREOF the undersigned being
duly authorized by their respective Governments for that purpose have
signed this Convention.
-
-
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