Changes

Furtrans appealed to the SCN. The SCN allowed Furtrans’ appeal. It said that the words of the Convention, which words it considered “in the first place to be deciding”, (fn.1) did not offer any support for the narrow interpretation that the Court of Appeal had placed on the second paragraph of Art.3.4. The SCN then went on to explain why, in its view, the words of Art.3.4 were clear.

The SCN then pointed out that the travaux préparatoires made clear that there were objections to Art.3.4 because of the broad possibilities that that article seemed to create to arrest a vessel for a maritime claim which pertained to a vessel that was not owned by the debtor of the claim. After discussing the travaux préparatoires the SCN said:

2) In its two decisions of 12 September 1997 relating to the HANJIN OAKLAND (United Kingdom Mutual Steamship Assurance Association (Bermuda) Ltd. versus Hanjin Shipping Co. Ltd, NJ 1998, 687) and the MICOPERI 7000 (United Towing Limited versus Micoperi Offshore S.p.A., NJ 1998, 688), the SCN decided that under Dutch Private International Law (Conflict of Laws), an arrest of a vessel to secure a claim against a different party other than the Owner of the Vessel was only lawful if it was possible to enforce the claim against the arrested vessel under both the lex causae (the law that governs the merits of the claim) and the lex registrationis (the law of the place where the vessel is registered). It would now seem that, in the light of the decision in the CONSTANZA M, a vessel can be lawfully arrested in the Netherlands, in a case where the Arrest Convention applies, for a claim against a different party than the owner if the claim can be enforced against the vessel under only the lex causae. If this conclusion is correct, the possibilities to arrest vessels in the Netherlands for a claim against a different party than the owner of the vessel have been broadened.