Pianura Armatori v Ferrari Shipping

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DMC/SandT/11/18

The Netherlands

Pianura Armatori SpA v Ferrari Shipping Agency G.A. - The "Halcyon Star”

Court of Rotterdam (summary proceedings) : Mr A.F.L. Geerdes, LJN:BQ5031, October 7, 2010 (published May 19, 2011)

http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=kenmerken&vrije_tekst=bq5031

Mr L.M. Schat for Pianura Amatori SpA

Mr M. Verhagen for Ferrari Shipping Agency GA

ARREST CONVENTION 1952 ART. 3(4) SECOND PARAGRAPH: ARREST OF VESSEL OWNED BY A VESSEL MANAGER FOR MARITIME CLAIMS AGAINST THE VESSEL MANAGER RELATING TO OTHER VESSELS NOT OWNED BY THE MANAGER

Summary

A creditor of a maritime claim against a Vessel’s Manager may arrest a vessel that is owned by the Manager, even though no connection exists between the claim and the arrested vessel.

Case note contributed by Nigel Margetson, Advocaat in the Rotterdam law office of Hampe Meyjes Advocaten.

Facts

Pianura Armatori SpA (“Pianura”) were the Owners of the “Halcyon Star”. They were also the Managers of several other vessels (“Other Vessels”), which they did not own. Ferrari Shipping Agency G.A. (“Ferrari”) arrested the “Halcyon Star” at Flushing to obtain security in the amount of EURO 507,000.- for claims for agency services in France rendered at Pianura’s request to various vessels, including the “Halcyon Star”,. The part of Ferrari’s claim that pertained to services rendered to the “Halcyon Star” was EURO 52,667.

In these proceedings, Pianura requested the court to order Ferrari to lift the arrest on the “Halcyon Star” within one hour of payment to Ferrari of the amount of EURO 52,667. Pianura argued that Ferrari’s claims pertained to the Manager, and not to the Owners, of the Other Vessels and that the arrest of the “Halcyon Star” for claims against the Other Vessels, which were not owned by Pianura, was wrongful. Pianura cited Art.3(1) of the International Convention Relating to the Arrest of Sea-Going Ships (Brussels, May 10, 1952) (“Arrest Convention”) and alleged that that article required a connection between the arrested ship and the claim.

Ferrari contended that Art.3(1) of the Convention did not require a connection between the vessel and the claim. Alternatively, it said that, by the second paragraph of Art.3(4) of the Convention, it was entitled to arrest the “Halcyon Star” to obtain security for claims against Pianura in its capacity as manager of the Other Vessels.

Judgment

The relevant parts of Article 3 of the Arrest Convention say:

(1) Subject to the provisions of para.(4) of this article and of article 10, 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, even though the ship arrested be ready to sail; but no ship, other than the particular ship in respect of which the claim arose, may be arrested in respect of any of the maritime claims enumerated in article 1, (o)[disputes as to title or ownership], (p)[disputes between co-owners] or (q)[disputes relating to the mortgage of the ship]. (…)

(4) When in the case of a charter by demise of a ship the charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the charterer by demise, subject to the provisions of this Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claim. 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. [Emphasis added]

The judge (Mr Geerdes) said that the travaux préparatoires of the Arrest Convention made clear that the purpose of that Convention was that the creditor of a maritime claim must be able to arrest a vessel that was owned by the debtor. By allowing a sister ship arrest, the Convention did not as a matter of principle require a strict connection between the alleged maritime claim and the arrested ship, apart from the exceptions mentioned in Art.3(1). Mr Geerdes said that this would be his starting point.

Mr Geerdes further found that, as Pianura was not the Owner of the Other Vessels, Art.3(1) of the Convention did not apply.

He then considered whether Art.3.4 second paragraph allowed the arrest, concluding as follows: “The words of Art.3(4) second sentence allow this arrest. Maritime claims that we are dealing with in this case – maritime claims against the manager who is not the owner of the vessels, [which themselves] are in no way connected to the claim – were, as far as one can tell from the travaux préparatoires, not considered by the framers of the convention. Considering the above-mentioned purpose of the convention, the court does not believe that it was their purpose to deny a creditor of a maritime claim the possibility to arrest a vessel that is owned by the debtor on the basis that a connection does not exist between the claim and the arrested vessel. For that reason, Pianura’s request is denied.

Comment

This judgment makes clear that the second sentence of Art.3(4) of the Convention, in the same manner as Art.3(1), does not require a connection between the arrested vessel and the maritime claim for which the vessel is arrested.