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CHAPTER 11 Liability for wrongful arrest

Berlingieri on Arrest of Ships Volume 2

Page 120 CHAPTER 11 Liability for wrongful 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. Introduction 11.01 The question whether uniform rules should be provided in respect of the obligation of the arrestor to provide security and of his liability in the event of wrongful arrest was again debated by the CMI International Sub-committee and by the Lisbon Conference at which alternative proposals had been submitted, including (i) to leave the decision on whether security should be provided for wrongful arrest to the complete discretion of the court and (ii) to make it a rule Page 121 of the Convention that such security should be provided and give the court a possibility in exceptional cases to dispense with the security.

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