Lloyd's Maritime and Commercial Law Quarterly
The 1952 Arrest Convention revisited
Francesco Berlingieri*
The purpose of this paper is to consider issues to which the answer is unsettled under the 1952 Arrest Convention and whether and to which extent an answer is provided in the 1999 Arrest Convention.
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The issues that will be considered are the following: (1) scope of application of the uniform rules; (2) jurisdiction for arrest; (3) conditions for arrest; (4) ships that may be arrested; and (5) right of re-arrest and multiple arrest. It is possible that certain of such issues have found a clear solution in some states parties to the 1952 Convention, but it is nevertheless advisable to consider them because either the wording is not clear or disagreement exists in other states parties.
1. Scope of application of the Uniform Rules
a. Type of ships
There is no clear answer to the question whether the International Convention for the Unification of Certain Rules relating to the Arrest of Sea-going Ships 1952 (“the 1952 Convention”) applies only to sea-going ships. Reference to sea-going ships is made in the title, but nowhere else, and the fact that in Art 7(5) it is provided that the provisions of that Article shall not apply in cases covered by the provisions of the revised Rhine Convention of 17 October 1868 seems to imply that the Convention generally does apply also to inland navigation ships.2
If this were not the case, it would be necessary to consider which is the basis of the distinction between the two categories of ships. There are theoretically three
* Advocate, Senior Partner, Studio Legale Berlingieri; former Professor of Maritime Law, University of Genoa; President ad Honorem, CMI.
1. The paper was originally delivered at the International Academic Workshop on Vessel and Flag organized by the Axel Ax:son Johnson Institute of Maritime and Transportation Law, University of Stockholm, held at Anguilla Sabaudia, Italy on 11–14 November 2004.
2. Reference to “sea-going ships” either in the title or in the text is made in the 1924 and 1957 Limitation of Liability Conventions and in the 1976 Limitation Convention (LLMC 1976). However, such reference does not seem to exclude inland navigation ships from the scope of this latter Convention, since Art 15(2)(a) provides that states parties may regulate by specific provisions of national law the system of limitation of liability to be applied to ships which according to the law of those states are intended for navigation on inland waterways; this means that, if states do not take advantage of this provision, the uniform rules apply.
However, the expression “sea-going ship” is used in all Pollution Conventions in order to confine their application to ships that are actually employed for navigation in the seas. A recent Convention, the OPRC Convention of 1990, no longer uses that expression, but refers instead to vessels “of any type whatsoever operating in the marine environment”.
Probably the same conclusion holds for the 1967 and the 1999 MLM Conventions, in both of which the expression “sea-going ship” is used, as it is in the UN Convention on Conditions for Registration of Ships 1986, in Art 2 of which “ship” is defined as “any self-propelled sea-going vessel used in international seaborne trade”.
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