Berlingieri on Arrest of Ships Volume 2
Release of the ship from arrest and release of the security
Article 4: Release from arrest
- 1. A ship which has been arrested shall be released when sufficient security has been provided in a satisfactory form, save in cases in which a ship has been arrested in respect of any of the maritime claims enumerated in Article 1, paragraphs 1(s) and (t). In such cases, the court may permit the person in possession of the ship to continue trading the ship, upon such person providing sufficient security, or may otherwise deal with the operation of the ship during the period of the arrest.
- 2. In the absence of agreement between the parties as to the sufficiency and form of the security, the court shall determine its nature and the amount thereof, not exceeding the value of the arrested ship.
- 3. Any request for the ship to be released upon security being provided shall not be construed as an acknowledgement of liability nor as a waiver of any defence or any right to limit liability.
- 4. If a ship has been arrested in a non-party State and is not released although security in respect of that ship has been provided in a State party in respect of the same claim, that security shall be ordered to be released on application to the court in the State party.
- 5. If in a non-party State the ship is released upon satisfactory security in respect of that ship being provided, any security provided in a State party in respect of the same claim shall be ordered to be released to the extent that the total amount of security provided in the two States exceeds:
- (a) the claim for which the ship has been arrested, or
- (b) the value of the ship, whichever is the lower. Such release shall, however, not be ordered unless the security provided in the non-party State will actually be available to the claimant and will be freely transferable.
- 6. 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.
In this article are assembled both provisions on the release from arrest of the ship, whether in a party State or in a non-party State. But since the scope of application of the Convention is obviously limited to party States, the arrest of a ship in a non-party State is considered only in respect of the release of the security provided in order to obtain the release of the ship. Such provisions will be considered separately.