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Arrest of a sister ship for maritime claims

2012 January 17
by Hein Kernkamp

Furtrans Denizcilik Ticaret Ve Sanayi AS v. Augusta Due Srl.

Court: Netherlands Supreme Court

Date: December 9, 2011

LJN Number: BT2708

Case:  Ship arrest for a maritime claim on a sister ship owned by the same debtor

Augusta Due Srl has ordered Furtrans to build the ship "Stromboli M", for a price of € 29,950,000. According to the agreement, Furtrans remains the owner of the ship during its construction. Augusta has made a downpayment of approximately 3 million euros; the remainder of the purchase price is to be paid upon delivery of the ship. Delivery was planned to take place on the 4th of February, 2010; however, Augusta failed to take delivery.

Furtrans petitioned the Amsterdam court to obtain leave for arrest on the "Costanza M", a ship which is also owned by Augusta. Leave was granted, and the "Costanza M" was arrested on the 24th of February 2010, in the harbor of Amsterdam, for an alleged claim by Furtrans of € 29,366,615. Augusta started to proceedings to have the arrest lifted, claiming that arrest in this matter was not possible, due to article 3 of the International Convention Relating to the Arrest of Sea-Going Ships (Brussels, 1952). The court of first instance denied the claim; however, the court of appeals lifted the arrest on this ground.

Held: The ships which may be arrested, are pointed out in article 3 of the Brussels Convention. Firstly, this is the ship on which the claim sees, and secondly, every other ship owned by the same owner (at the moment the claim came into existence) may be arrested as well. In case of a bare boat charter, only the charterer may be held liable, and arrest on sister ships owned by the same owner (not being the charterer) is not possible. Furthermore, article 3 paragraph 4 stipulates: "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".

According to page 341 of the "travaux préparatoires" (preparatory works) of the Brussels Convention, arrest is always possible if a person (or company) other than the owner is responsible for a claim, and this arrest may then also be made on other ships owned by this other person or company.

Augusta has not denied that Furtrans has a maritime claim on Augusta. Therefore, the decision made by the court of appeals is quashed by the Supreme Court, and the csae is sent back to be decided upon by another court of appeals. This court will have to examine whether or not Furtrans' claim is indeed a maritime claim as meant in the Brussels convention.


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