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Arrest, Attachment and Related Maritime Law Procedures

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W. Tetley, " Arrest, Attachment, and Related Maritime Law Procedures[.pdf] " (1999) 73 Tul. L. Rev. 1895-1985.


Arrest, Attachment and Related Maritime Law Procedures

(final version published (1999) 73 Tul. L. Rev. 1895-1985)

Prof. William Tetley, Q.C.

Abstract

This article traces the Admiralty action in rem back to its civilian roots in medieval Europe and shows how the action in England gradually diverged from the Continental model, beginning in the sixteenth century. The action in rem and the arrest of ships in the contemporary law of the United Kingdom, the United States and Canada are outlined and compared to the civilian saisie conservatoire and its counterpart, the American maritime attachment. Two relatively new procedures employed in modern maritime law in the U.K. and British Commonwealth countries-- the Mareva injunction and the Anton Piller order-- are also discussed. The author concludes with comments on the Arrest of Ships Convention 1999 and the urgent need for greater international uniformity in this vitally important area of maritime law.


ARREST, ATTACHMENT AND RELATED MARITIME LAW PROCEDURES

William Tetley, Q.C.(1)

INDEX

I. Introduction

II. The Purpose and Plan of this Article

III. The History of Arrest in rem and the Admiralty Attachment - England

    1) Roman law and the Admiralty action in rem

    2) The processus contra contumacem

    3) Characteristics of the Admiralty process to compel appearance in Tudor/Stuart England

    4) Gradual emergence of contemporary Admiralty procedures - England

    5) Did the Admiralty attachment expire in the 18th century?

IV. Arrest in rem - United Kingdom, Canada and United States

        1) United Kingdom

    a) Arrest in rem - the characteristic Admiralty proceeding
    b) In rem process in a nutshell
    c) Closed list of maritime claims
    d) Arrest to enforce maritime liens
    e) Arrest to enforce statutory rights in rem
    f) Sister ship arrest
    g) Beneficial ownership
    h) Demise charterers may bind the ship in rem
    i) Issue of the writ gives rise to statutory rights in rem in the U.K.
    j) Release from arrest
    k) Wrongful arrest
    l) Arrest and the protection of property rights
    m) Conclusion - arrest - U.K.


    2) Canada

            a) Introduction ' "Canadian maritime law"
            b) Canadian maritime jurisdiction
            c) Open list of maritime claims
            d) The action in rem - Canada
            e) Arrest for maritime liens, statutory rights in rem and quasi-maritime liens
            f) Canadian in rem process
            g) The statutory right in rem arises in Canada with arrest of the ship
            h) Beneficial ownership
            i) The demise charterer does not bind the ship in rem in Canada
            j) Sister ship arrest
            k) Release of the ship
            l) Wrongful arrest
            m) Arrest and the protection of property rights
            n) Conclusion - arrest in rem - Canada

    3) United States

            a) Introduction
            b) American maritime liens and lien law
            c) Binding the ship for U.S. maritime liens
            d) Enforcement in rem
            e) Arrest in rem under Supplemental Rule C
            f) Maritime attachment under Supplemental Rule B
            g) Release of the ship
            h) Wrongful arrest or attachment
            i) Constitutional safeguards of shipowners' property rights
            j) Conclusion - attachment and arrest - America

V. The Saisie Conservatoire - France

    1) Introduction

    2) Attachment of ships and other assets

    3) Attachment of ships - two regimes

    4) Claims permitting maritime attachment

    5) Attachment of ships and sister ships

    6) Attachment procedures and jurisdiction

    7) Release from attachment and voyage authorization

    8) Wrongful attachment

    9) Protection of private property rights of shipowners

    10) Conclusion - France

VI. The Mareva Injunction

    1) Introduction

    2) Conditions for the issuance of a Mareva injunction

    3) "Worldwide" Mareva injunctions

    4) Mareva injunctionprocedures - United Kingdom

    5) Mareva injunctions - Canada

    6) The Mareva injunciton, the action in rem and the attachment

    7) Conclusion - Mareva injunction

VII. The Anton Piller Order

    1) Introduction

    2) The Anton Piller order - United Kingdom

    3) Anton Piller orders - U.K. procedural safeguards

    4) Anton Piller orders - Canada

    5) Conclusion - Anton Piller orders

VIII. The Arrest of Ships Convention 1999 (Adopted March 12, 1999)

    1) Introduction

    2) General observations on the Arrest Convention 1999

            a) The definition of "arrest"
            b) A "closed" list of "maritime claims"
            c) Some specific maritime claims
            d) Arrest of ships about to set sail or sailing
            e) Arrest for maritime liens and statutory rights in rem
            f) Sister ship arrest
            g) Limitation on security for release
            h) Countersecurity and wrongful arrest
            i) Application of the Convention
            j) Convention does not create maritime liens
            k) International uniformity is essential

IX. The Challenges

X. Conclusion - The Arrest Convention 1999

Appendix The Arrest of Ships Convention 1999


ARREST, ATTACHMENT AND RELATED MARITIME LAW PROCEDURES

William Tetley, Q.C.(2)

I. Introduction

Essential to the practice of maritime law in any country is a knowledge of the procedures which provide pre-judgment security for claims, as well as post-judgment execution if a suit is allowed. Pre-judgment security is of the highest importance to the maritime creditor, who always faces the threat of being unable to recover his debt from an impecunious or unscrupulous debtor, if the debtor's ship--the main asset on which so many maritime creditors depend in extending credit--should sail away without the debt having been paid. Similarly, the possibility of post-judgment execution, by way of the judicial sale of the arrested ship, is a key consideration for maritime creditors concerned about the solvency of their debtors.

In common law countries whose maritime law is primarily derived from the admiralty law of England, the action in rem is the basic procedure on which creditors rely for pre-judgment security and post-judgment enforcement. The arrest of the ship or other res (e.g. cargo or freight) in the action in rem places the res under judicial detention pending adjudication of the claim. It usually also secures the appearance in the action of the defendant shipowner and it establishes the jurisdiction of the court. If the court subsequently allows the claim, the judgment is then enforceable against the arrested res (by judicial sale) or the security given to take its place.

In civil law jurisdictions, where no action in rem exists, the action in personam may be combined with a "saisie conservatoire", or conservatory attachment. The saisie permits any property of the debtor (including ships) to be seized and detained under judicial authority pending judgment. The subsequent judgment, if favourable to the plaintiff, may then be enforced against the attached property or the security replacing it.

The United States, in a sense, has the best of both worlds, because American maritime law affords the creditor both the arrest in rem(3) and the maritime attachment.(4)

England (supposedly) lost the Admiralty attachment in the eighteenth century, resulting in a serious weakness in its maritime process compared to that available in civilian countries.(5) This lacuna has been only partially filled since 1975 by the Mareva injunction. In that same year, the Anton Piller order was developed, as a tool for preserving evidence. Both procedures are applied today in maritime and non-maritime cases alike, not only in England, but throughout the British Commonwealth.

On the international plane, over 70 nations are party to the Arrest Convention 1952.(6) The Convention provides a legal regime covering all aspects of arrest and attachment of seagoing ships before judgment, but has undergone a major review and and has been replaced by a new convention (see Appendix).

In consequence, now would seem to be a propitious moment to take a fresh look at the various procedures of pre-judgment security in the maritime law of common law and civilian jurisdictions, as well as at the proposed new international convention on the arrest of ships.
 
 

II. The Purpose and Plan of this Article

This article will first review the historical background of the action in rem and the Admiralty attachment in England. It will challenge again, but briefly, the prevalent view that the English Admiralty attachment is extinct. The main characteristics of the action in rem in the United Kingdom, Canada and the United States will be reviewed, with emphasis on the role of arrest in the process. American maritime attachment will also be outlined. The article will then examine the civilian saisie conservatoire, as practised in France, after which the Mareva injunction of the U.K. and other British Commonwealth states such as Canada will be studied, as well as the Anton Piller order. Finally, the article will comment briefly on the International Convention on the Arrest of Ships, 1999, adopted a week ago, on March 12, 1999, in Geneva,(7) at a diplomatic conference convened by the International Maritime Organization (IMO) and the United Nations Conference on Trade and Development (UNCTAD).
 
 

III. The History of Arrest in rem and the Admiralty Attachment - England

1) Roman law and the Admiralty action in rem

Since at least the early nineteenth century, the origin of the English Admiralty action in rem has been traced to the actio in rem of Roman law. Arthur Browne, in his monumental work, A Compendious View of the Civil Law and of the Law of the Admiralty, published in 1802, wrote:(8)

"This remedy in rem against the ship or goods is founded on the practice of the civil law, which gives an actio in rem, to recover or obtain the thing itself, the actual specific possession of it..."


More recent legal historians, however, have questioned the Roman pedigree of the action in rem. They point out that by the sixteenth century, English Admiralty Court judges were hearing in rem claims of a purely personal nature, having none of the proprietary character required by the Roman actio in rem.(9) Moreover, they can find no indication in the case law of the late medieval or early modern period that anything resembling a maritime lien or a ship hypothec was necessary to found the Admiralty in rem action against ships.(10)

2) The processus contra contumacem

Rather than being derived from Roman law, English Admiralty in rem actions are derived, in the opinion of at least some legal historians today, from a process of arrest of property to compel appearance of the defendant, a procedure developed in medieval Europe and firmly established in England by the fifteenth century.

This processus contra contumacem, in use on the Continent by the fourteenth century, was described by an anonymous Italian civilian author, an extract from whose description was transcribed into the Blacke Booke of the Admiralty(11) under the title Ordo Judiciorum.(12) In England, the procedure was well established in the Admiralty Court by the sixteenth century and it appears to have been somewhat different from the Continental model. It is described in the account of the Court's process written by Francis Clerke, a proctor in the Court during the reign of Queen Elizabeth I.(13)

The primary purpose of the process was to counteract the defendant's contumacious refusal to appear before the court and contest the suit brought against him. In England, the person and/or the property of the defendant in the jurisdiction of the Admiral could be arrested by the Admiralty Marshal or other officer at the same time as the defendant (or anyone else having an interest in the property) was cited to appear.(14) In a second stage, the defendant received a series of citations to appear, and after four defaults by him, the plaintiff would formulate his claim in the form of a draft sentence or article upon first decree.(15) The Admiralty Court, in the "first decree" (primum decretum), could then award possession of the property arrested to the plaintiff on grounds of the defendant's contumacy.(16)

3) Characteristics of the Admiralty process to compel appearance in Tudor/Stuart England

The English Admiralty process by citation, defaults and first decree, unlike the Continental processus contra contumacem, made little distinction between the actio in rem (or actio realis) and the actio in personam (or actio personalis).(17) Its chief characteristics were as follows:

a) Arrest of the person of the defendant was the primary mode in which the process was exercised, with arrest of his property being a subsidiary mode, although the modes were alternative and could also be combined.(18)

b) Any property of the defendant in the jurisdiction (not only his ship, but also his goods) could be arrested.(19) In fact, arrest appears to have extended to goods of the defendant in the possession of a third party, as well as to goods of a party indebted to the defendant and even to incorporeal rights. (20) Sister ships could also be arrested.(21)

c) The possibility of arresting any goods of the defendant in the jurisdiction was a particularly useful (and often the only effective) remedy to secure the plaintiff's claim where the defendant himself was out of the jurisdiction (as frequently happened in the case of claims against the seafaring foreign merchants of those times).(22) This aspect of the procedure has been seen in retrospect as the origin of the "Admiralty attachment" (as it later came to be called in the eighteenth or nineteenth centuries), a pre-judgment security process which could be added to the action in personam.(23) The civilian judges of the High Court of Admiralty in the 1500's and 1600's did not distinguish clearly between actions in rem and in personam, however, there being for them but a single procedure, or ordo, although one which had two variants: arrest of the person and arrest of his property.

d) The arrest did not depend for its validity on the existence of any sort of lien against, or hypothecation of, the ship or goods. The procedure was valid as long as the ship or goods belonged to the defendant and were within the Court's jurisdiction. (24)

e) The claimant, in his draft sentence on first decree, was required to identify the arrested property.(25)

f) Execution on the property arrested was limited to the value of that property, even if that value was insufficient to cover the full amount of the successful plaintiff's claim. (26)

4) Gradual emergence of contemporary Admiralty procedures - England

After the Restoration in 1660, a number of interrelated factors continued to shape English Admiratly process, slowly giving it a form and content more closely resembling its characteristics today:

a) The need, under the Admiralty procedure of the Tudor/Stuart period, to identify the arrested res, and the fact that enforcement was limited to its value, contributed to the concept that the ship itself, as opposed to its owner, was liable for certain claims, such as seamen's wages and salvage. Arrest of the "wrongdoing" res came to be seen as the exclusive mode in which Admiralty process was exercisable in respect of such claims.(27) The late seventeenth and eighteenth centuries consequently saw the beginnings of a sharp distinction between the action in rem and the action in personam as we now know them.

b) The common law courts, which had been locked in combat with the High Court of Admiralty for centuries, (28) seized upon the idea that Admiralty jurisdiction was limited, not only to geographical areas within the ebb and flow of the tide, but also to causes of action involving the liability of the vessel, as opposed to the personal liability of the owner.(29) The Court of King's Bench lost no time in issuing writs of prohibition to impose this new subject-matter restriction on the civilian Admiralty judges sitting at Doctors' Commons.(30)

c) The increased use of writs of prohibition against the Admiralty Court resulted in a significant decline in the in personam practice of the Court, especially after the Glorious Revolution of 1688.(31) Mercantile litigants began to institute their personal actions in the common law courts, where they were sure that their suits would at least come to trial, leaving the Admiralty judges with practically no jurisdiction other than the action in rem.(32) Arthur Browne could thus write in 1802 that: "...at present the Admiralty acts only in rem...."(33) The withering away of the Admiralty action in personam necessarily caused the slow decline, and eventually the virtual disappearance in England, of the Admiralty attachment as well.(34)

The in personam jurisdiction of the Admiralty Court experienced a brief renaissance in the nineteenth century, thanks to the Admiralty Court Acts of 1840(35) and 1861,(36) prior to and just after the dissolution of Doctors' Commons in 1858.(37) The Admiralty attachment remained unused in England, however, resulting in the view that it had ceased to exist as a legal procedure. Fortunately, it survived in the United States, where the American Revolution (1775-1783) predated the alleged demise of the attachment in England, and where it continues to flourish.

5) Did the Admiralty attachment expire in the 18th century?

Despite the general opinion ,(38) there is a strong argument supporting the view that the Admiralty attachment did not become extinct in England at the end of the eighteenth century. The speech of Fry L.J. in The Heinrich Bjorn(39) certainly suggests that the procedure continued to exist after 1800, and his contention to that effect has never been clearly addressed in subsequent English decisions.(40)
 
 

IV. Arrest in rem - United Kingdom, Canada and United States

1) United Kingdom

a) Arrest in rem - the characteristic Admiralty proceeding

In the United Kingdom, the action in rem is the characteristic Admiralty proceeding to enforce all types of maritime claims. It tends to be regarded primarily as a procedural device to secure the defendant's personal appearance in the suit, rather than as an action against the "wrongdoing ship" seen as a person.(41) It differs from an action in personam, in that the ship (and, in some cases, the cargo, bunkers and freight, or the proceeds of the judicial sale(42)) is the defendant, together with the shipowner.(43) The availability of the action in rem to enforce maritime liens, statutory rights in rem and other maritime claims in England is governed by the Supreme Court Act 1981,(44) at sect. 21(2), (3) and (4), providing for the exercise in rem of the Admiralty jurisdiction of the Queen's Bench Division of the High Court of Justice against the ship or property concerned by the claim, or, in some cases, against a sister ship.(45) The action in rem provides pre-judgment security for the claim, founds the jurisdiction of the court and usually secures the appearance of the shipowner.(46) It typically is enforced by the arrest of the res.

Arrest in rem is not permitted, however, in respect of Crown ships(47) or a ship belonging to a foreign State, unless it was in use or intended for use for commercial purposes when the cause of action arose.(48) In general, however, the flag, registry, ownership of the ship or the place where the claim arose, do not restrict Admiralty jurisdiction.(49)

b) In rem process in a nutshell

The procedures regulating both the action in rem and the arrest are provided for principally in Order 75 of the Rules of the Supreme Court.(50) In brief, the action begins with the issuance of the writ in rem by the Admiralty and Commercial Registry in London or one of the District Registries elsewhere in the U.K.(51) The arrest warrant, obtained on motion to the High Court supported by the "affidavit to lead warrant" of the claimant, is valid for twelve months.(52) It is ordinarily served with the writ in rem,(53) and may only be served where the ship or other res is within the jurisdiction.(54) When the action is served or where service is deemed to have occurred by virtue of the shipowner's acknowledgment of the issue of the writ before service (the modern equivalent of the appearance in the action by the defendant), the proceeding continues as a joint action in rem and in personam, so that the eventual judgment is enforceable against both the arrested res and the debtor's other property.(55) The ship is usually released from arrest (or its arrest is prevented) by the issuance of a bail bond or a letter of undertaking (LOU) from the protection and indemnity club of the shipowner.(56) Following the trial of the suit, if the claim is allowed and the plaintiff remains unpaid, the ship or other arrested res may be sold by judicial sale, or the judgment may be executed against the security which has been given to prevent the arrest or to release the res following its arrest.(57) Judicial sale conveys a title free and clear of liens.(58) The proceeds are then distributed to the plaintiff and any other claimaints who may have intervened in the action, according to the order of priorities established by law, with equity also playing an important role in the ranking.(59)

c) Closed list of maritime claims

The Supreme Court Act 1981, at sect. 20(2), presents a closed list of maritime claims which fall within the Admiralty jurisdiction of the High Court under sect. 20(1)(a), and which permit of enforcement by in personam and in rem proceedings. The list reflects the provisions of art 1(1) of the Arrest Convention 1952,(60) which, in turn, reproduced the list of maritime claims enacted by the United Kingdom in its Supreme Court of Judicature (Consolidation) Act, 1925.(61) There are also a few other specific types of claims, however, under sect. 20(3), (4) and (5) of the Act, but no general head of maritime jurisdiction.

The maritime claims listed in sect. 20(2) of the Supreme Court Act 1981 may generally be enforced in personam, under sect. 21(1). Under sect. 21(2), in rem enforcement is permitted with respect to claims relating to ownership and possession of a ship or any of its shares (sect. 20(2)(a)); claims and questions relating to possession, employment or earnings of a ship (sect. 20(2)(b); claims in respect of mortgages or charges on a ship or any share in it (sect. 20(2)(c)); and claims for the forfeiture and condemnation of a ship or goods (sect. 20(2)(s)). A great many maritime claims enforceable in rem, however, fall under either of two other categories: maritime liens and statutory rights in rem.

d) Arrest to enforce maritime liens

Jurisdiction to bring an action in rem to enforce a maritime lien is vested in the High Court of Justice by sect. 21(3) of the United Kingdom's Supreme Court Act 1981.(62) A maritime lien is a secured claim against the ship (and in some cases against cargo, freight and/or bunkers) for a service done to the ship or damage done by it.(63). It is a true "privilege", derived from the civil law and the lex maritima of medieval Europe.(64) As such, it constitutes a substantive right in the property of another, a ius in re aliena,(65) and should not be regarded as a mere matter of procedure.(66) Maritime liens arise with the claims which they secure without any registration, notification or other formalities; they are independent of possession and follow the ship into whosever hands it passes (therefore surviving a sale of the ship by mutual agreement, although not a judicial sale); and they rank immediately after special legislative rights, the costs of arrest and judicial sale and custodia legis expenses and prior possessory liens.(67) They therefore take precedence over ship mortgages and hypothecs in the distribution of the proceeds of the judicial sale of the arrested res. Under English maritime law, maritime liens are limited to salvage, damage, seamen's and master's wages, master's disbursements, bottomry and respondentia (the last two being virtually obsolete).(68)

e) Arrest to enforce statutory rights in rem

A statutory right in rem, on the other hand, is a pure procedure, the function of which is to confer on a claimant having a certain type of maritime claim the right to arrest the vessel in an action in rem as security for that claim.(69) Such claims include supplies, repairs, shipbuilding and other "necessaries", as well as claims for breach of charterparty, cargo loss or damage, towage, pilotage, and general average.(70) The High Court may exercise its jurisdiction over such claims by virtue of sect. 21(4) of the Supreme Court Act 1981, but only provided the specific conditions prescribed by that provision are met, as outlined below. For claims falling under sect. 20(2)(e) to (r) of the Act, many of which are statutory right in rem claims, only one ship may be served or arrested (sect. 21(8)).(71)

The statutory right of action in rem (also sometimes inaccurately termed a "statutory lien") differs from a maritime lien in a least three major ways. First, the right arises only from the time of the issue of the writ in rem in the U.K., whereas the maritime lien arises when the services are provided to, or the damage is done by, the ship concerned.(72) Secondly, the statutory right in rem, unlike a maritime lien claim, does not follow the ship into whosever hands it passes;so the ship may not be arrested if it is sold by mutual consent before the issue of the writ. Legislative expression of this point is found in sect. 21(4)(b)(i) of the Supreme Court Act 1981. The rule requires that the action in rem for claims mentioned in sects. 20(2)(e) to (r) of the Act (including the statutory right in rem claims) may only be brought against a ship to which such a claim relates if the person who would be liable on the claim in an action in personam (the "relevant person") was the owner, charterer or person in possession or control of the ship when the cause of action arose, and if that "relevant person" is, at the time the action in rem is brought, either the "beneficial owner" as respects all the shares in the ship or the vessel's demise charterer.(73) Finally, the statutory right in rem claimant has a much lower priority than the maritime lienholder in the distribution of the proceeds of the judicial sale, ranking after, rather than before, the vessel's mortgagee.(74)

f) Sister ship arrest

Sister ship arrest is also permitted under sect. 21(b)(4)(ii) of the Supreme Court Act 1981, but subject to the condition that the "beneficial owner" of the sister vessel, at the time the action in rem is brought against it, is the "relevant person" who was liable personally on the claim when the cause of action arose.(75)

g) Beneficial ownership

"Beneficial ownership" is therefore a key concept in the United Kingdom's law of arrest. It has been held to refer to "... such ownership as is vested in a person who, whether or not he is the legal owner of the vessel, is in any case the equitable owner."(76) Ascertaining where beneficial ownership truly lies has sometimes involved courts in the U.K. and Commonwealth jurisdictions in "lifting the corporate veil", particularly where evidence has been adduced to show that the corporate facade has been manipulated as part of a sham calculated to confuse and/or defraud creditors.(77)

h) Demise charterers may bind the ship in rem

In addition to beneficial owners, a demise charterer may bind the ship for maritime claims contemplated by sect. 20(2)(e) to (r) of the Supreme Court Act 1981, if he was the charterer or party in possession and control of the ship and personally liable on the claim when the cause of action arose and if he is the demise charterer when the action in rem is commenced (sect. 21(4)(b)(i)).(78) By comparison, in Canada, the demise charterer may not bind the ship, this right being restricted only to "beneficial owners", a term which excludes demise charterers, despite their complete possession and control of the vessel.(79) On the other hand, U.K. law is less liberal than American law in this regard, because it does not authorize a time or a voyage charterer or a shipping agent to bind the ship in rem, in the absence of proof that the time or voyage charterer or the shipping agent had some actual authority to bind the credit of the owner or demise charterer on the claim when it arose, or that the owner or demise charterer "held out" the time or voyage charterer or shipping agent as being authorized to bind the owner's or the demise charterer's credit when the claim arose.(80)

i) Issue of the writ gives rise to statutory rights in rem in the U.K.

In the United Kingdom, the statutory right in rem arises on the issue of the writ, not the arrest of the ship.(81) In consequence, the statutory right in rem can defeat the claim of a bona fide third party purchaser of the vessel, who acquires the ship between the issuance of the writ in rem and the arrest, even if he is then unaware of the existence of the statutory right.(82) This appears inequitable, as well as fundamentally incompatible with the true nature of the statutory right in rem as a mere procedure of arrest to provide pre-judgment security, because it turns the statutory right in rem into an inchoate maritime lien, a substantive right, which it was never intended to be.(83)

The British insistence on the statutory right arising with the writ has also entailed jurisdictional complications in maritime suits instituted against defendants domiciled in other member-States of the European Union.(84) Such a defendant may ordinarily be sued only in the other European country in which he is domiciled, as required by the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968(85) and the similar provisions of the Lugano Convention 1988 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters.(86) By its art. 57, however, the Brussels Convention 1968 does not affect any other conventions on jurisdiction or the recognition and enforcement of judgments which bind contracting States in relation to "particular matters". One such convention is the Arrest Convention 1952. But because art. 7 of the Arrest Convention 1952 makes jursidiction dependent on the actual arrest of the ship, U.K. courts have sometimes been held to have lost jurisdiction in actions in rem to enforce statutory rights in rem where the defendant ship has not actually been arrested.(87) Such complications would not arise if the U.K. recognized, as does Canada, that the statutory right in rem procedure arises only with arrest of the ship. U.K. courts appear to be backtracking on the matter, in recognizing that they are only finally "seised" of jurisdiction in rem when the writ is served or the ship is arrested (or if the defendant submits to the jurisdiction of the court).(88) There is reason to hope that the U.K. may change its position on this matter.

j) Release from arrest

Following its arrest, the ship is usually released from arrest after security has been provided by the shipowner for the claim. The security may be in the form of a bail bond, a payment of money into court, a bank guarantee or a letter of undertaking (LOU) from the shipowner's protection and indemnity club (P. & I. club). The security is seen as replacing the arrested res, thereby precluding rearrest in most cases.(89) The amount of the security is set by the court in its discretion, but the general principle is a sum sufficient to cover the claimant's "reasonably arguable best case", together with interest and costs, not exceeding the value of the arrested vessel.(90) A final judgment in the claimant's favour may be enforced against the substituted security, just as it could have been against the arrested ship.

Although the arrest of his ship may have grave effects on the shipowner's business, it is not usual for the courts to impose any requirement on the claimant to put up countersecurity to guarantee the defendant against losses which the latter may incur as a result of the arrest, although countersecurity is sometimes ordered, in the court's discretion.(91) Defendants can, however, be held liable in damages for having demanded excessive security, this rule having even been codified by statute in Australia.(92)

k) Wrongful arrest

Wrongful arrest in the United Kingdom may result in a condemnation of the claimant for damages only where the court is satisfied that the arrest was motivated by mala fides (bad faith) or crassa negligentia (gross negligence).(93) Merely unjustified (i.e. erroneous) arrest would not normally entitle the defendant to claim damages, although he might then be able to recover costs.(94)

l) Arrest and the protection of property rights

Less concern is voiced in the United Kingdom than in the United States about the safeguarding of private property rights when ships or other assets are arrested in rem by the Admiralty Court.(95) There is no general requirement in the U.K. for a post-seizure hearing following the arrest, as there now is in the U.S. because of the American constitutional principle of "due process". Nevertheless, some safeguards of ownership rights are built into the British system of ship arrest. For example, a party wishing to prevent the arrest of property in an action in rem may, by filing a praecipe in the prescribed form, obtain the entry of a caveat against arrest in the caveat book kept in the Admiralty and Commercial Registry in London.(96) Although the entry of the caveat does not prevent arrest of the res, the caveator, on a subsequent motion after arrest, may obtain the discharge of the arrest warrant and the condemnation of the arresting party in damages, if the latter is unable to show "good and sufficient reason" for having arrested.(97)

Where a foreign ship registered in a port of a state having a consulate in London is to be arrested in the U.K. in an action in rem for wages, prior notice of the arrest must be given to the consul concerned.(98) Similar notification rules exist where the U.K. has undertaken by treaty or convention to minimize the possibility of arrest of ships of another state.(99)

Admiralty Practice Direction No. 3 provides procedures to protect the rights of owners of arrested cargo to secure its discharge from a ship not under arrest, as well as the rights of owners of cargo not under arrest to secure its discharge from a ship which is under arrest.(100)

Such procedures provide significant protections for private property rights, although a general rule would appear desirable.

m) Conclusion - arrest - U.K.

The action in rem and the arrest of ships, as developed over the centuries by English Admiralty judges, provide an effective means of enforcing maritime claims falling within the categories enumerated today in the United Kingdom's Supreme Court Act 1981. England, through its ancient admiralty law, has also provided the basis for the arrest in rem in other common law countries, particularly Commonwealth countries such as Canada. It is particularly important that the right to arrest in the U.K. is limited to a "closed list" of maritime claims.

2) Canada

a) Introduction - "Canadian maritime law"

The central fact of Canadian history is that Canada did not join the American Revolution in 1776, but rather remained within the British Empire, now the British Commonwealth of Nations. Canadian law, including Canadian maritime law,(101) therefore traditionally adhered closely to English law, except in Québec, Canada's sole civil law province, where the civilian legal tradition of France developed independently, although influenced by the common law of the neighbouring Canadian and American jurisdictions.

The Supreme Court of Canada, in The Buenos Aires Maru,(102) held that Canadian maritime law(103) consists of two major components: 1) a body of federal law encompassing the (English) common law principles(104) of tort, contract and bailment, received from England as of 1934,(105) as subsequently developed in Canada by statute and judicial precedent;(106) and 2) a wider category of law which the former Exchequer Court of Canada (now the Federal Court of Canada) would have administered if it had had, on its Admiralty side, an unlimited jurisdiction in relation to maritime and admiralty matters.(107) The words "maritime" and "admiralty" were to be interpreted "within the modern context of commerce and shipping".(108) They were not to be limited by the historical confines of English admiralty jurisdiction, but only by the division of legislative powers between the federal Parliament and the provincial legislatures, under Canada's Constitution Act, 1867.(109) To fall under the second branch of "Canadian maritime law", the court must determine that "the subject-matter [of the claim] under consideration... is so integrally connected to maritime matters as to be legitimate Canadian maritime law within federal legislative competence."(110)

Both branches of the definition of "Canadian maritime law" are reflected in the statutory definition of the term at sect. 2(1) of Canada's Federal Court Act.(111)

b) Canadian maritime jurisdiction

Admiralty jurisdiction in Canada is exercised today by the Federal Court of Canada, concurrently with the courts of the provinces and territories, under sect. 22(1) of the Federal Court Act. Most maritime law cases are heard and decided in the Federal Court, rather than in the provincial/territorial courts, however, because the Federal Court provides litigants with the action in rem and the Court's process runs throughout Canada (sect. 55(1)). The Federal Court has a Trial Division and an Appeal Division, from the latter of which there is an appeal to the Supreme Court of Canada by leave of that Court.

The Supreme Court has clearly established that the Federal Court's admiralty jurisdiction depends upon three criteria:(112) 1) a statutory grant of jurisdiction by the federal Parliament; 2) an existing body of federal law that is essential to the disposition of the case and which "nourishes" the statutory grant of jurisdiction ("Canadian maritime law" being such an existing body of federal law); and 3) the applicable law being a "law of Canada" as the phrase is understood in sect. 101 of the Constitution Act, 1867.(113)

c) Open list of maritime claims

Under the Federal Court Act, the jurisdiction of the Trial Division of the Federal Court extends generally to "...all cases in which a claim for relief is made or a remedy is sought under or by virtue of Canadian maritime law or any other law of Canada relating to any matter coming within the class of subject of navigation and shipping, except to the extent that jurisdiction has been otherwise specially assigned" (sect. 22(1)). Sect. 22(2) then sets forth nineteen specific heads of jurisdiction (sects. 22(2)(a) to (s) inclusive), closely resembling the enumerated heads of English Admiralty jurisdiction found in the U.K.'s Supreme Court Act 1981.(114) Sect. 22(2) begins with the words "[w]ithout limiting the generality of subsection (1)" and declares that the listing which follows is "for greater certainty". It therefore would appear that the list of maritime claims in sect. 22(2) is not a "closed list", but rather an "open list", the claims enumerated there being merely examples of the categories of claim subject to the Trial Division's original, general jurisdiction under sect. 22(1) over claims arising under "Canadian maritime law".(115)

d) The action in rem - Canada

As in the United Kingdom, the action in rem, focussed on arrest of the res, is the principal method of enforcing maritime claims in Canada, although in personam enforcement is also permitted by sect. 43(1) of the Federal Court Act.(116) In general, neither the flag, registry nor ownership of the vessel, nor the place where the claim arose restricts Admiralty jurisdiction.(117)

Nevertheless, as in the U.K., Canada's Crown Liability and Proceedings Act(118) prohibits proceedings in rem against Crown ships or cargoes. The Federal Court Act also expressly exempts warships, coast guard ships, police vessels, as well as ships owned or operated by Canada or a province, and their cargoes, from in rem actions.(119) Foreign sovereign immunity is also granted under the State Immunity Act(120) and the Federal Court Act(121) to ships and cargoes owned by foreign states and their agencies, but does not extend to foreign state-owned vessels or cargoes used or intended for use in commercial activity.

e) Arrest for maritime liens, statutory rights in rem and quasi-maritime liens

Arrest in rem is possible under the Federal Court Act for claims respecting title, possession or ownership of a ship or share or proceeds of sale of a ship;(122)questions between co-owners concerning possession, employment or earnings of a ship;(123) and claims arising from ship mortgages, hypothecation or charges.(124) Both traditional maritime liens (salvage, damage, seamen's and master's wages, master's disbursements, bottomry and respondentia)(125) and statutory rights in rem (e.g. supplies, repairs and other "necessaries", breach of charterparty, cargo claims and towage)(126) are also enforceable in rem.(127)

"Necessaries" is a somewhat wider concept in Canada than in the U.K., in that sect. 22(2)(m) of the Federal Court Act confers jurisdiction over claims, not only for "goods or materials" supplied to a ship for its operation or maintenance,(128) but also over claims for "services",(129) including claims for stevedoring and lighterage.(130) Marine insurance claims are also in rem claims in Canada,(131) whereas it is doubtful that any right against the ship for unpaid marine insurance premiums exists in England.(132)

The Federal Court Act also features three peculiar types of maritime claim which are best termed "quasi maritime liens", in that they follow the ship, even if it is sold by mutual consent (as do traditional maritime liens), and yet they rank as if they were statutuory rights in rem, after (rather than before) ship mortgages.(133) These claims are for dock charges, harbour dues and canal tolls(134); pilotage;(135) and general average contributions.(136)

f) Canadian in rem process

Arrest in rem in Canada follows procedures generally similar to those of the United Kingdom and is now governed by the Federal Court Rules, 1998(137) The statement of claim is served by a sheriff, together with the warrant of arrest issued by a "designated officer" of the Federal Court and the claimaint's "affidavit to lead warrant".(138) Service on a vessel is effected by attaching these documents to a "conspicuous part of the ship".(139) Service in rem may only be effected on a ship in the jurisdiction.(140) and must occur within sixty days of the issuance of the statement of claim.(141) The defendant shipowner's appearance in the action causes it to proceed as a joint in rem and in personam suit.

The ship is usually released from arrest upon the giving of security.(142) Following trial, if the claim has been allowed, the arrested vessel may be sold in a judicial sale to pay the debt or execution may be levied on the security which replaces it.(143) Property sold in a judicial sale is free of any liens.(144) Distribution of the proceeds is according to a ranking system generally identical to that of the U.K., subject to variation to take account of the demands of equity.(145)

g) The statutory right in rem arises in Canada with arrest of the ship

Contrary to the position in the United Kingdom,(146) statutory rights in rem in Canada do not make their holders secured creditors and such rights arise only when the ship or other res is actually arrested in the action in rem.(147) This solution is consistent with the true nature of the statutory right as a mere procedure, rather than a substantive property right or inchoate maritime lien, and it is also more equitable to third parties who acquire ships before their arrest without knowledge of the right of the in rem claimant.

h) Beneficial ownership

Under sect. 43(3) of the Federal Court Act, in order for the jurisdiction over various statutory right in rem claims to be exercised in rem,(148) the ship which is the subject of the action must be beneficially owned at the time of the commencement of the action by the person who was the vessel's beneficial owner at the time when the cause of action arose.(149) The statutory right therefore does not travel with the ship, but is defeated by a sale of the vessel by mutual consent prior to the service of the arrest warrant. Moreover, beneficial ownership in Canada is considered with respect to the vessel itself, rather than with respect to the shares in it as in the U.K.(150)

Although sect. 43(3) does not expressly so provide, the beneficial owner can only bind the ship in rem if he was personally liable on the claim at the time when the cause of action arose.(151)

The "beneficial owner" in Canada has been defined as including someone "...who stands behind the registered owner in situations where the latter functions merely as an intermediary, like a trustee, a legal representative or an agent".(152) The title of the beneficial owner has been described as one "...characterized essentially by the right to dispose of the res."(153) It could therefore include a parent corporation or a holding company of the registered shipowner, provided that party had some legal or equitable interest in the vessel, including a right to dispose of it.(154) This is generally similar to English law. A mere "beneficial interest" (e.g. management) does not qualify as "beneficial ownership".(155)

Canadian courts, like those of the U.K., are prepared to "lift the corporate veil" to determine where true beneficial ownership lies, but will generally do so only where they have evidence that the corporate structure is being manipulated to create a sham or fraud designed to avoid arrest and in rem liability.(156)

i) The demise charterer does not bind the ship in rem in Canada

Whereas in the United Kingdom, the demise charterer of a ship may bind the ship in rem,(157) in Canada only the beneficial owner of the vessel may bind the ship in rem.(158)

As in the U.K., time and voyage charterers do not ordinarily bind the ship in Canada, unless they act as agents of the beneficial owner.(159)

j) Sister ship arrest

Sister ship arrest has been permitted in Canada since 1992 under sect. 43(8) of the Federal Court Act(160) In Canada, sister ship arrest is permitted for any maritime claim under sect. 22 of the Act; and more than one ship may be arrested on a claim. By comparison, in the U.K., sister ship arrest, under sect. 21(4)(b)(ii) of the Supreme Court Act 1981, is limited to claims under sects. 20(2)(e) to (r) of that Act, and sect. 21(8) restricts arrest to one ship per claim. On the other hand, the U.K. statute permits sister ship arrest of a vessel beneficially owned by a charterer (including a time or voyage charterer) or a person who was in possession or control of the "offending ship" if that party was personally liable on the claim when it arose. In Canada, however, only ships beneficially owned by the owner of the "offending ship" may be arrested.(161) Also, in Canada, any change in the "beneficial ownership" of the "offending ship" occurring after the cause of action arises and before the action in rem is brought causes the court to lack jurisdiction over the sister ship,(162) which is arguably not the case in the U.K.(163)

k) Release of the ship

An arrested ship may be released in Canada, as in the U.K., on the giving of security, whether in the form of a bail bond, a payment into court, a bank guarantee or a P. & I. club letter of undertaking (LOU). The quantum is at the court's discretion, but generally the amount must be sufficient to cover the plaintiff's "reasonably arguable best case", together with interest and costs, without exceeding the value of the vessel.(164) The security replaces the res(165) and usually prevents its rearrest for the same claim.

The claimant is generally not required to give countersecurity, although the Federal Court Rules, 1998 do authorize the Court to order a plaintiff to give "security for costs" of the defendant in the action, in a number of specific situations (e.g. where the plaintiff is ordinarily resident outside Canada; where he has not provided and address or has provided an incorrect address; and where there is reason to believe that the action is frivolous and vexatious and that the plaintiff would have insufficient assets in Canada available to pay the costs of the defendant if ordered to do so).(166)

l) Wrongful arrest

Canada follows English admiralty law in condemning the arresting party in damages for wrongful arrest of a ship or other res only where the court decides that the arrest was prompted by bad faith (mala fides) or gross negligence (crassa negligentia).(167)

m) Arrest and the protection of property rights

Canada has no entrenched constitutional principle of "due process of law" comparable to the due process concept of the Fifth and Fourteenth Amendments to the United States Constitution. Both "due process" and the "enjoyment of property" are mentioned in Canada's 1960 Bill of Rights,(168) but the Bill was never entrenched in the Canadian Constitution and so can be amended like any other statute. Furthermore, it applies only to matters falling under federal (not provincial) legislative jurisdiction in Canada; and is purely declaratory, rather than executory in nature, having no "teeth" permitting incompatible legislation to be struck down for violation of the rights which it declares.(169) In addition, "due process of law" under the Bill of Rights of 1960 has been held to require only compliance with the legal processes recognized by Parliament and the courts.(170) The Bill is therefore of doubtful utility in challenging the validity of any arrest in rem which has been effected in compliance with the applicable statute and regulations.

Unlike the Bill of Rights, the Canadian Charter of Rights and Freedoms(171) of 1982 is entrenched in the Constitution; it applies to provincial as well as federal matters; and it is executory. Nevertheless, the Charter does not expressly protect private property rights, and it is unclear to what degree, if at all, the freedom from "unreasonable search and seizure" under sect. 8 could be invoked successfully by a shipowner to contest the arrest of his vessel without prior notice or hearing.(172) In addition, certain Charter provisions apply only to individuals, not to corporations, and are therefore ineffective in protecting the rights of most shipowners.(173) The possibility of alternative relief, through an action in damages for wrongful arrest, the importance of preventing the vessel leaving the jurisdiction, and the general principle of sect. 1 of the Charter, by which the rights and freedoms guaranteed are declared to be "subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society", could well render the Charter ineffective in challenging arrest inrem on sect. 8 grounds.(174) Nevertheless, such a challenge remains to be taken in Canada and, if pleaded skilfully, might result in a decision favouring the shipowner.(175)

Canada, like the U.K., permits a party wishing to prevent arrest of the res to enter a caveat warrant against arrest, by which he undertakes to give bail in respect of any action in rem within three days of being required to do so.(176) The caveat warrant then enables him to recover costs and damages if the party at whose instance the arrest warrant is issued is unable subsequently to satisfy the Court that he should not be so liable.(177) This procedure, however, is a far less effective safeguard against unreasonable arrest than a general and constitutionally-entrenched principle of "due process".

n) Conclusion - arrest in rem - Canada

While fundamentally similar to in rem proceedings under English law, the action in rem and arrest in Canada do have certain distinguishing features which result in important differences. Much more distinct from English law than Canadian maritime law, however, is the admiralty law of the United States. It is of particular importance to note that maritime claims which provide rights of ship arrest in Canada are not restricted, but form part of an open list.

3) The United States

a) Introduction

Because the United States broke away from the British Empire at the end of the eighteenth century, it retained the Admiralty attachment, as well as arrest in rem, as procedures for the enforcement of maritime claims. Today, the specific rules on both procedures are found in the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure,(178) at Supplemental Rules "B" (attachment) (179) and "C" (arrest). In consequence, a maritime claimant in the United States may may choose to take: a) an action in personam; b) an action in personam with attachment under Supplemental Rule "B"; or c) an action in rem, with arrest under Supplemental Rule "C".(180) Another hallmark of American maritime procedures is that both maritime attachment and arrest in rem are subject to certain constitutional safeguards rooted in the "due process" clauses of the Fifth and Fourteenth Amendments to the U.S. Constitution.

Before examining those matter, however, it is first necessary to note the particularities of American maritime law as regards maritime liens.

b) American maritime liens and lien law

Because of America's civilian maritime law heritage,(181) maritime liens in the U.S. have long been regarded as substantive rights, rather than as procedural remedies referred to in jurisdictional statutes, as they are in the U.K. and most British Commonwealth countries. Moreover they have been codified (except for a definition of the term "maritime lien" itself), in the Commercial Instruments and Maritime Liens Act,(182) and its predecessor statutes, which further confirms their substantive character as established prior to codification.(183) The statute also provides rules on ranking.(184) The "personification" of maritime liens, whereby the vessel is conceived of as a person responsible for the claim against it, contributes to this substantive understanding of liens in America.(185)

Secondly, there are no statutory rights in rem in American maritime law. All martime claims codified in the Act are secured by maritime liens, which arise with the claims, follow the ship and (frequently although not always) outrank ship mortgages. Claims for "necessaries" (supplies, repairs, bunkers, etc.), general average contributions, towage, and marine insurance premiums, for example, all give rise to maritime liens under American law. Moreover, "necessaries" is defined more widely in the United States than in the U.K. or any Commonwealth country, so that maritime liens are recognized for virtually any goods or services of benefit to the navigation, management, business or purpose of the ship.(186)

Thirdly, maritime liens in the U.S. are of two types, the distinction relating to ranking. "Preferred maritime liens"(187) include wages of the crew and master;(188) salvage (including contract salvage);(189) damages arising from maritime torts;(190) wages of a stevedore (i.e. a longshoreman) when employed directly by the shipowner, master, manager or certain agents;(191) and contract maritime liens(192) which arise before preferred ship mortgages.(193) Preferred maritime liens outrank preferred ship mortgages. Other (non-preferred) maritime liens are contract maritime liens accruing after the filing of preferred ship mortgages, which generally rank after such mortgages.

Fourthly, American maritime lien law contains two chauvinistic ranking rules, one of which subordinates foreign preferred ship mortgages which have not been guaranteed under title XI of the Merchant Marine Act, 1936 to U.S. preferred ship mortgages.(194) The other rule subordinates foreign preferred ship mortgages which have not been guaranteed under title XI of the Merchant Marine Act, 1936 to liens for necessaries supplied in the U.S.(195)

Fifthly, maritime liens for necessaries, if ordered by a party authorized or presumed authorized to order necessaries for a vessel, arise without the supplier having to prove that credit was given to the ship.(196) A necessaries lien may therefore arise, even where a prohibition of lien clause in the charterparty forbids the charterer from incurring liens on the vessel, unless the vessel owner can prove that the supplier had actual knowledge of the prohibition when the lien arose.(197) This is also significantly more liberal than English and Canadian law, where the necessariesman continues to have a duty to inquire which, if not fulfilled, can cause him to lose his statutory right in rem.(198) The contract underlying the necessaries claim must, however, be a "maritime" contract falling within U.S. admiralty jurisdiction.(199) The contract must also have been performed, at least in part, in order to give rise to the lien.(200)

c) Binding the ship for U.S. maritime liens

American law is more liberal that U.K. or Canadian law in defining who may bind the vessel in rem for maritime liens. This power is not restricted to owners and demise charterers. Rather, necessaries may be procured for the vessel by the owner, the master, a person entrusted with the management of the vessel at the port of supply, or by an officer or agent appointed by the owner, a (time or voyage) charterer, an owner pro hac vice (i.e. a demise, or bareboat, charterer) or an agreed buyer in possession of the vessel.(201)

American maritime lien law, unlike Anglo-Canadian law, does not distinguish between "legal" (registered) shipowners and "beneficial" owners of ships or their shares. "Owner" means registered owner of the vessel itself.

d) Enforcement in rem

Both the preferred ship mortgagee and the maritime lienor, under U.S. law, have a lien enforceable by a civil action in rem.(202)

Enforcement in rem is possible against both American and foreign ships. As in most other countries, however, no lien may be asserted in the U.S. against a "public vessel".(203) Arrest or seizure of any vessel owned, demise chartered or operated by the U.S. Government, as well as the creation of any lien against a public vessel, are prohibited by the Public Vessels Act(204) and the Suits in Admiralty Act.(205) Ships owned and operated by foreign states or their "agencies or instrumentalities" are also exempt from pre-judgment arrest or seizure, under the Foreign Sovereign Immunities Act,(206) but only in respect of their governmental, non-commercial activities.(207) Nevertheless, arrest is permitted, even against a state-owned foreign ship, to enforce a preferred ship mortgage.(208)

e) Arrest in rem under Supplemental Rule C

The action in rem in the U.S., under Supplemental Rule C, permits the arrest of any ship or other maritime property to enforce a maritime lien,(209) provided that the res is within the territorial jurisdiction of the federal district court concerned, at the time the suit is filed or during the pendency of the action.(210) Arrest perfects the lien, obtains jurisdiction and procures pre-judgment security for the claim.(211) Under Rule C, arrest is obtained by the filing of a complaint, verified on oath or solemn affirmation, accompanied by an affidavit. Judicial review is required before a warrant of arrest may issue (Rule C(3)), unless "exigent circumstances" make the review "impracticable". The warrant of arrest, accompanied by a summons to the defendant, are issued by the clerk, on the order of the court, and the Marshal arrests the vessel by posting the notice of arrest aboard the ship and serving a copy of the complaint and warrant upon the master or person in charge.(212) Any person claiming an interest in the property arrested is entitled to a prompt post-arrest hearing, under Rule E(4)(f). The vessel may be sold to satisfy the lien claim, but if the sale proceeds are insufficient to cover the claim, the owner is not liable for the balance, because the action in rem is directed exclusively against the ship or other res which has been arrested.(213)

U.S. federal district courts also have taken a kind of "constructive in rem" jurisdiction over shipwrecks, including wrecks lying on the seabed in international waters, in order to protect the rights of wreck salvors. This jurisdiction is defended on the somewhat questionable ground that the district court has jurisdiction where artifacts from the wreck are brought into the district by the salvors.(214)

f) Maritime attachment under Supplemental Rule B

Supplemental Rule B(1) permits a claimant having an in personam claim against a defendant which is cognizable in admiralty to attach the goods or chattels of the defendant, or the latter's credits or effects in the hands of garnishees, within the district, when the defendant cannot be found in the district. The attachment thus permits the assertion of jurisdiction over a defendant's property located within the district event though the court has no in personam jurisdiction over the defendant.(215) Derived from the general maritime law, with its civilian antecedents, maritime attachment in the U.S. resembles the saisie conservatoire, or conservatory attachment, of the civil law.(216) The attachment serves to assure the defendant's appearance and to to assure satisfaction in case the suit is successful.(217)

Attachment is not dependent, as is arrest in rem, on the existence of a maritime lien or preferrred mortgage lien, but necessitates merely an in personam claim against the defendant which falls within U.S. admiralty jurisdiction. The attachment is not restricted, as is arrrest in rem, to maritime property (ships, cargo, freight, bunkers), but may be taken against any goods or chattels of the defendant located within the jurisdiction of the federal district court seized of the claim, as well as the credits or effects of the defendant in the hands of third parties. Hence, it is used to seize both tangible and intangible assets, including, notably, bank accounts.(218)

Because the U.S. has the attachment, sister-ship arrest in rem is unncessary. A sister vessel may be attached as security for the claim, in the same way as any other goods or chattels of the defendant, if it is within the district and the defendant cannot be found there.(219)

For the purposes of determining when a defendant cannot be "found within the district" within the meaning of Supplemental Rule B, a two-pronged test applies, based upon jurisdiction and the service of process.(220) Attachment under Rule B is thus proper: a) when the defendant lacks "minimum contacts" with the district sufficient to found in personam jurisdiction;(221) and b) when he is not available for service of process within the district, because he has no office or authorized agent in the district where or through whom legal process may be served upon him.(222) The plaintiff bears the burden of proving that the defendant cannot be found within the district under Rule B, and must make reasonable, but not necessarily exhaustive, efforts to locate the defendant.(223)

Because Rule B jurisdiction is in personam, if the defendant appears in the action and the plaintiff's claim is allowed, the judgment is enforceable against all of the defendant's property, and not only against the property seized as in the action in rem.(224) If the defendant fails to appear, however, the plaintiff's judgment is enforceable only against the value of the property attached.(225)

The attachment may be combined with the action in rem,(226) the advantage of such joinder being that if the value of the ship or other arrested property is insufficient to satisfy the judgment, the balance of the damages awarded may be recovered from the defendant found personally liable on the claim. Joinder of arrest and attachment is also useful if the claimant is uncertain whether he has a valid maritime lien to assert in rem.

Procedurally, Supplemental Rule B requires the plaintiff to file a detailed complaint, accompanied by an affidavit. The plaintiff must show: 1) that he has an in personam claim against the defendant; 2) that the defendant cannot be found within the district where the action is commenced; 3) that property belonging to the defendant is present, or soon will be present, in the district; and 4) there is no statutory or general maritime law proscription to the attachment.(227) An ex parte applicationfor issuance of the attachment must also be filed, owing to the pre-seizure hearing required since 1985. The clerk of the court, on the court's order, issues the writ of attachment to the Marshal, as well as a summons addressed to the defendant, which the Marshal serves with the writ.(228) A prompt post-seizure hearing is also mandatory under Rule E(4)(f), at the request of any party claiming an interest in the property attached.

g) Release of the ship

The vessel may be released from arrest or attachment on the filing of sufficient security, under Supplemental Rule E(5). The security then replaces the res(229) and normally precludes re-arrest for the same claim.(230) In the U.S., security may take the form of a "special bond" (Rule E(5)(a)), which releases the res from arrest or attachment in the plaintiff's suit. A special bond is in an amount determined by the parties or, failing such agreement, in an amount set by the court, which is sufficient to cover the plaintiff's claim "fairly stated", together with interest and costs, but not exceeding the lesser of the value of the property or twice the amount of the claim.(231) Security may also take the form of a "general bond" (Rule E(5)(b)), which releases the res from arrest or attachment in respect of all actions which may be brought in the district. It must be maintained at double the aggregate amount claimed in actions begun and pending. Finally, security may consist of a "stipulation" (Rule E(5)(c)), which is usually a P. & I. club letter of undertaking (LOU), or in some cases, a letter of credit or an escrow deposit.

In addition, the claimant may be ordered to give countersecurity in respect of counterclaims arising out of the same transaction, where the defendant has given security in the claimant's action, unless the court directs otherwise for "cause shown" (Rule E(7)). Countersecurity has also been required of the plaintiff where the claim and the defendant's posted security greatly exceeded the amount of the actual loss.(232)

If the claim succeeds, the res may be sold in a judicial sale or the judgment may be enforced against the substituted security. The judicial sale terminates all claims existing on the date it occurs, and the vessel is then sold free of all such claims.(233) The proceeds are then distributed according to the U.S. order of ranking.(234)

h) Wrongful arrest or attachment

U.S. courts have not hesitated to grant damages for the wrongful arrest or attachment in maritime cases. As in England and Canada, however, damages are only granted where the arrest or attachment is found to have been motivated by bad faith, malice or gross negligence. The analogy to malicious prosecution is frequently drawn. (235) Where the arrest or attachment is merely erroneous, costs may sometimes be awarded, but not damages.(236) U.S. courts may also condemn a party in damages for demanding excessive security.(237)

i) Constitutional safeguards of shipowners' property rights

The Fifth Amendment to the U.S. Constitution, adopted in 1791 in respect of federal matters, prohibits depriving any person of life, liberty or property without due process of law. The Fourteenth Amendment, of 1868, applies a similar prohibition in respect of state matters. As a result of certain U.S. Supreme Court decisions on civil (non-maritime) matters such as garnishments, rendered in the 1960's and 1970's,(238) the door was opened to constitutional challenges of both maritime attachment and arrest in rem, on grounds of due process, particularly in respect of the question of whether these maritime enforcement procedures should be required to provide for prior notice and hearing of the defendant shipowners directly affected by them. Various contradictory decisions were rendered by American courts on the issue, and legal academics engaged in a vigorous debate on the matter in the law reviews.(239)

Finally, in 1985, Supplemental Rules B and C were amended to provide for the procedural safeguards considered compatible with due process. The new rules provided for judicial authorization prior to arrest or attachment, more detailed complaints (especially in attachment cases) and speedy post-seizure hearings.(240) At the post-seizure hearing, the onus is on the arresting or attaching party to show that he had "probable cause" for arresting or attaching the vessel.(241) Supplemental Rule C(4) also requires public notice of the action in rem and the arrest, in a newspaper, if the property has not been released within ten day after execution of process.(242)

Further safeguards were enacted in the Commercial Instruments and Maritime Liens Act in 1988, requiring "actual notice" of a civil action in rem which has been brought to enforce a preferred mortgage lien or a maritime lien to be given, in the manner directed by the federal district court, to: 1) the master or individual in charge of the vessel; and 2) any person who recorded a notice of claim of an undischarged lien on the vessel under 46 U.S. Code sect. 31343(a) or (d); and 3) a mortgagee of an undischarged mortgage file or recorded under sect. 31321.(243)

j) Conclusion - attachment and arrest - America

In addition to recognizing a larger number of maritime liens than any other nation, American maritime law is uniquely rich in affording admiralty claimaints both the attachment and arrest in rem as mechanisms for asserting their claims and obtaining pre-judgment security.(244) The United States has also led the world in developing and implementing effective constitutional protections of the private property rights of shipowners with respect to both attachment and arrest. In that domain in particular, American maritime law can well serve as a model for other nations.

Effectively, because of the broad interpretation of the Commercial Instruments and Maritime Liens Act and, in particular, of "necessaries", the claims permitting ship arrest and attachment in the U.S. are contained in an "open list".

V. The Saisie Conservatoire - France

1) Introduction

Civil law countries such as France never experienced the conflict between admiralty and common law courts which plagued the English judiciary for centuries. Pre-judgment seizure of any property of a debtor therefore was never "lost", as it supposedly was in England. Nor was there ever in civilian jurisdictions a separate in rem proceeding, with the ship a notional defendant. Rather, civilian countries to this day have but a single action, the action in personam, which may, however, be combined with a saisie conservatoire, or conservatory attachment, in order to give the claimant security for his claim before judgment. In addition, France at least appears to have been untroubled by the risk of maritime attachment without prior notice or hearing infringing on "due process" rights of defendants.(245)

2) Attachment of ships and other assets

Ship attachment in France, as provided by Law no. 67-5 of January 3, 1967,(246) is governed by special regulatory provisions. The procedures are found in Decree no. 67-967 of October 27, 1967,(247) as amended by Decree no. 71-161 of February 24, 1971.(248) Procedures regulating the attachment of cargo,(249) freight(250) and other assets, such as bank accounts and insurance proceeds,(251) on the other hand, are subject to the general law of France on civil procedures of execution, found in Law no. 91-650 of July 9, 1991,(252) completed by Decree no. 92-755 of July 31, 1992.(253) In 1998, the Cour de Cassation, reversing some previous case law of various courts of appeal, held that, because bunkers were a "component of the ship" ("élément du navire"), their attachment. like that of the vessel itself, was to be governed by maritime law (i.e. the 1967 Decree), rather than by the general legislation of 1991/1992 on execution on movable property.(254)

3) Attachment of ships - two regimes

There are two regimes of ship attachment in France: the "international" regime, based on the Arrest Convention 1952 to which France is party,(255) and the "domestic", or "residuary", regime. governed by the 1967/1971 Decree. The international regime governs the attachment of seagoing ships(256) flying the flag of a state which is party to the Arrest Convention 1952, as required by art. 8(1) of the Convention. The domestic regime applies to the attachment of French vessels in French ports by French residents.(257)

Under art. 8(2) of the Arrest Convention 1952, where the ship attached is not a French vessel and does not fly the flag of any other state party to the Convention, it may be attached for a maritime claim recognized under art. 1(1) of the Convention or for any claim permitting attachment under the law of the contracting state concerned (i.e. France, in this case).(258) France's domestic regime may be applied in this case, because art. 8(3) permits a state party like France to exclude from the benefits of the Convention any non-contracting state or any person who, at the time of the arrest or attachment, has no habitual residence or principal place of business in a contracting state.(259)

4) Claims permitting maritime attachment

Ships under the international regime may be attached in France only for "maritime claims" listed in art. 1(1) of the Arrest Convention 1952, that "closed list" being interpreted restrictively.(260) The judge merely verifies that the claim alleged falls into one of the categories on the list.(261)

Under France's residuary regime, ships may be attached for anyclaim whatsoever, whether maritime or not, provided that the claim appears "founded in principle".(262) The judge must, however, be satisfied that the claim is "certain and serious" before authorizing the vessel's attachment.(263)

In consequence, neither regime restricts attachment to claims giving rise to a maritime lien (a "privilège maritime"). France nevertheless recognizes maritime liens on ships for: 1) law costs and costs of judicial sale; 2) tonnage and port charges, pilotage, and costs of preservation of the vessel since its entry into the last port (the port where the attachment occurs); 3) claims resulting from the contract of employment of the master, crew and other persons engaged for on-board work; 4) remuneration for salvage and assistance and general average contributions; 5) damages for collisions and other accidents of navigation, damages to port installations or waterways, damages for bodily injury to passengers and crew and compensation for loss of or damage to cargo or baggage; 6) claims arising from contracts concluded or operations carried out by the master away from the ship's home port, under his legal powers, for the real needs of preservation of the ship or the continuation of the voyage (including both what are deemed "master's disbursements" and "necessaries" in common law jurisdictions).(264) Most of these maritime lien claims, although differently worded in some cases, are included, as "maritime claims" under art. 1(1) of the Arrest Convention 1952. They would therefore permit attachment under either regime in France.

The Convention is not to be construed, however, as creating maritime liens not recognized under the law of the court seized of the case or under the Maritime Liens and Mortgages Convention 1926 (art. 9).(265)

5) Attachment of ships and sister ships

The ship concerned by the claim may be attached under both the internal regime and art. 3(1) and (4) of the Convention. Both regimes also permit sister ship attachment where the owner is liable on the claim.(266) Where a charterer is liable on the claim, art. 3(4) of the Convention permits the attachment of either the "offending ship" or another ship owned by the charterer. Only one ship may be seized.(267) Under the domestic regime, there is authority for the view that only a ship owned by the charterer may be seized, although a privilège maritime (maritime lien) will enable a chartered ship to be attached.(268)

French courts have applied the théorie de l'apparence (theory of appearance) to "lift the corporate veil", so as to determine true ownership, where a "community of interests" has been found between the legal entities concerned, where they lack genuine operational autonomy and particularly where the reality of related shipowners and ships has been concealed behind the mask of "one-ship companies".(269) The Cour de Cassation, France's Supreme Court, however, has more recently taken a more conservative position on the application of this theory, stressing the importance of respecting the integrity of corporate personality.(270) Increasingly, the corporate veil will only be lifted or pierced where there is clear evidence that the corporate facade is being manipulated as part of a sham in order to perpetrate a fraud on creditors.(271)

6) Attachment procedure and jurisdiction

Under both the domestic and the international regimes in France, the legal procedures for the attachment of ships are those of arts. 29 and 30 of Decree no 67-967 as amended by Decree no. 71-161.(272) Application for the saisie conservatoire is made by motion to the president of the Tribunal de commerce or, if he is unavailable, to a judge of the Cour d'instance (a lower court). The order of seizure is served on the debtor by a bailiff, generally in the presence of the master of the vessel. The bailiff appoints a guardian.(273) The ship may be attached even where it is preparing to set sail.(274) Attachment prohibits the ship from leaving port,(275) but does not otherwise affect the rights of the owner.(276)

As a result of a 1995 decision of the Cour de Cassation,(277) it is now uncertain whether attachment in France in itself suffices to found the international jurisdiction of the French court to adjudicate the claim. The decision reversed what had been thought of as a settled rule supporting the international jurisdiction of the forum arresti. The Supreme Court now requires some connecting factor recognized by French rules of private international law, apart from the place of seizure, in order to confer jurisdiction over the merits of the claim.(278)

France, in common with other countries, does not permit the attachment of ships belonging to the French Government, because French law absolutely prohibits all measures of execution and all forms of seizure against any property of "public persons".(279) Similarly, France subscribes to the principle of restrictive foreign sovereign immunity enshrined in the Immunity of State-Owned Ships Convention 1926 and its Additional Protocol 1934, (280) under which immunity from seizure, arrest and detention of foreign state-owned and state-operated vessels is recognized, but only in respect of such vessels engaged exclusively in governmental, non-commercial service when the cause of action arises.(281) Because many vessels today which in fact belong to states are formally owned and operated by state agencies or state corporations, French courts, applying the "théorie de l'émanation" (theory of emanation), have at times denied immunity where foreign governments, operating through such allegedly "independent" bodies, have attempted to avoid their debts. As with the théorie de l'apparence in sister ship attachment, however, a more conservative approach to the "émanation" doctrine is now being taken by French judges and legal scholars.(282)

7) Release from attachment and voyage authorization

French law provides two modes of lifting the saisie conservatoire. The shipowner may seek release of the ship, by motion to the Tribunal de grande instance. If release is granted, the seizing creditor loses all preference for his claim, and will normally be condemned to pay damages occasioned by the seizure, notably, the costs of the release.(283) Because release procedures in France tend to be protracted, however, shipowners often prefer the second option for lifting the saisie, which is a motion to the president of the Tribunal de grande instance seeking an order authorizing the vessel to leave the port of attachment for one or more determined voyages, in return for the giving of adequate security by the shipowner.(284) The president must set a deadline for the vessel's return to the port of seizure. Should the deadline be missed, the creditors are entitled to the security. The security generally takes the form of a letter of undertaking from the shipowner's P. & I. club, although a bank guaraantee may also be given. The security is regarded as taking the place of the vessel.(285)

As in other countries, judicial sale of the ship remains the final mode of exercise of maritime enforcement jurisdiction. It is governed in France by provisions of the Decree of 1967 on "saisie-exécution" (attachment in execution of the final judgment).(286)

8) Wrongful attachment

Art. 6, first para., of the Arrest Convention 1952 leaves to national law of the contracting state where the arrest was made or applied for the question of liability for damages for arrest of ships. There is no specific maritime legislation on this matter in France.(287) Nevertheless, jurisprudence shows that at least some French courts are prepared to grant damages for the wrongful seizure of ships, where it appears to have been motivated by malice or gross negligence.(288) Where the attachment is merely unfounded in law (i.e. erroneous, as opposed to malicious), the seizing creditor has been held liable to compensate the shipowner for the expenses of maintaining the vessel during its period of attachment.(289)

9) Protection of private property rights of shipowners

The Declaration of the Rights of Man and of the Citizen, 1789, at art. 2, declares the right to liberty, property, security and resistance to oppression. Art. 17 declares that property is an inviolable and sacred right, of which no one may be deprived except when public necessity, lawfully established, so requires, and on condition of a "just and prior indemnity". These lofty principles were invoked successfully to challenge the attempted nationalization of French banks in 1981.(290) They have yet to be raised to contest the constitutional validity of a ship attachment in France, however. Nevertheless, the possibility of such a challenge cannot be discounted.

10) Conclusion - France

Although France has no writ in rem, its maritime enforcement procedures are clear and unified, because France never permitted the attachment and the action in rem to separate. The historic saisie conservatoire, inherited from the general civilian lex maritima of Continental Europe, continues to flourish in civilian jurisdictions, and in France has been adapted to the demands of international shipping in the twentieth century. It provides a logical and effective procedural tool for providing modern maritime creditors with prejudgment security against the main asset on which they rely, the ship. It remains to be hoped that France, with its noble tradition of concern for fundamental rights and freedoms, will further refine its maritime legislation, as the United States has done, so as to provide additional, constitutionally-grounded protection to shipowners' rights of property in their vessels.

It is noteworthy that, as a party to the Arrest Convention 1952, France operates under a "closed list" of maritime claims.
 
 

VI. The Mareva Injunction

1) Introduction

The reputed loss of the Admiralty attachment in England has been partially mitigated by the invention of the "Mareva injunction". Considered by its creator, Lord Denning, as "...the greatest piece of judicial law reform in my time",(291) the Mareva injunction draws its name from the second decision granting the remedy which Lord Denning rendered while Master of the Rolls in the English Court of Appeal, Mareva Compania Naviera S.A. v. International Bulkcarriers (The Mareva).(292) The purpose of the Mareva injunction is to prohibit the defendant, before or during a suit, from removing assets (real or personal, movable or immovable) from the jurisdiction and/or from dealing with them,(293) where it appears to the court that without such an order the plaintiff's recovery on his claim will be jeopardized.(294)

Explicit authority for the issuance of Mareva injunctions is now conferred on the High Court of Justice in the United Kingdom by sect. 37(3) of the Supreme Court Act 1981,(295) which provides:

"The power of the High Court under subsection (1) to grant an interlocutory injunction restraining a party to any proceedings from removing from the juridiction of the High Court, or otherwise dealing with, assets located within that jurisdiction shall be exercisable in cases where that party is, as well as in cases where he is not, domiciled, resident or present within that jurisdiction."


In 1994, a "Practice Direction" was issued governing various details as to Mareva practice in the U.K.(296)

2) Conditions for the issuance of a Mareva injunction

The main conditions for the granting of a Mareva injunction were determined very early on in some of the first Mareva decisions in England., most of which were maritime law judgments.(297) In Third Chandris Shipping Corp. v. Unimarine S.A., (298) Lord Denning M.R. set out five guidelines to ensure that the Mareva would not be granted indiscriminately. The guidelines related to the contents of the affidavit of the applicant for the injunction. They require: 1) full and frank disclosure of all matters known to the applicant which are material for the judge to know; 2) disclosure of particulars of the applicant's claim, including its grounds and amount, and a fair statement of the points made against it by the defendant; 3) the applicant's grounds for believing that the defendants have assets in the jurisdiction (i.e. England or Wales); 4) the applicant's grounds for believing that there is a risk of the assets being removed before the judgment or arbitral award is satisfied; 5) the giving by the applicant of an undertaking in damages to indemnify the defendant for his losses should the claim fail or the injunction prove to be unjustified.(299) A sixth condition, or guideline, emerges from London's central position as a place for foreigners to litigate or arbitrate disputes efficiently before judges of unquestioned learning and impartiality. As described in The Niedersachsen,(300) the plaintiff must show some evidence of a serious risk, not merely that the assets in the jurisdiction will be removed or dissipated, but that, without the injunction, there will be no means in or outside the jursdiction available to enforce the judgment when rendered.(301)

The basic criteria governing the grant of Mareva injunctions in the United Kingdom today require the plaintiff to show: 1) a cause of action against the defendant in the jurisdiction at the time of the application.;(302) 2) a "good arguable case";(303) 3) that the defendant has assets within the jurisdiction (tangible, non-tangible, real or personal, including, inter alia, ships, cargoes, bunkers, proceeds of sale, bank accounts, etc.);(304) 4) that the defendant is likely to frustrate judgment by removing his assets from the jurisdiction or dissipating them;(305) 5) the balance of convenience favouring issue of the injunction.(306)

3) "Worldwide" Mareva injunctions

The Mareva injunction was applied originally to prevent both British and foreign defendants who had assets within England or Wales from transferring or dissipating those assets. Since 1988, however, English courts have begun to issue so-called "worldwide" Mareva injunctions, in order to restrain defendants subject to English jurisdiction from dealing with or dissipating their assets situated outside of England and Wales.(307) An order, pursuant to a Mareva injunction, may also be issued requiring that assets outside the jurisdiction be transferred to a jurisdiction where the Mareva remedy will be recognized.(308) Apart from the various matters which must be proven in Mareva injunction applications generally, worldwide Marevas also require the applicant to satisfy the court that the party enjoined lacks sufficient assets within the jurisdiction to satisfy the claim and that the circumstances of the case "cry out" for the Mareva order.(309)

The issuance of worldwide Marevas continues to cause consternation among many jurists, to whom the extra-territorial impact of such injunctive relief suggests overreaching by U.K. courts, particularly where the assets in question and those in possession of them (e.g. foreign banks) are located far from the British Isles.(310)

4) Mareva injunction procedures - United Kingdom

Procedures relating to Mareva injunctions in the U.K. are now largely codified in the Practice Direction 1994.(311) Mareva procedures pay significantly more heed to the protection of the property rights of the party to be enjoined than do the procedures applicable to the issuance of the writ in rem.

A Mareva injunction may issue before or after the start of the trial. Where granted before trial, the injunction is customarily issued after the writ, although it may be issued even before the writ is taken out, provided that the applicant undertakes to issue the writ "forthwith" or "as soon as practicable".(312) A Mareva injunction may also be sought by the defendant to the suit, in support of a counterclaim.(313)

The applicant typically seeks the injunction at an ex parte hearing before a judge in chambers, after submitting to the judge's clerk the writ (where it is already out), the affidavit setting forth the relevant facts and reasons for the application, and a draft minute of the order sought.(314) The applicant must also give a "cross-undertaking in damages" to indemnify the defendant for losses resulting to him should the claim be unsuccessful, as well as to compensate third parties for any expenses which they may reasonably incur in complying with the order or losses which the order may cause them.(315)

The Mareva injunction takes effect as soon as it is granted, but the order must be served on the defendant as well as upon third parties contemplated by its provisions.(316) The Mareva may also be combined with one or more "ancillary orders".(317) In particular, it may be combined with an action in rem.(318)

Worldwide Marevas today normally include a provision requiring that the injunction be declared enforceable or that it actually be enforced by a court in the relevant foreign jurisdiction, as a condition of the effectiveness of the injunction against third parties there who are not subject to the High Court's jurisdiction.(319)

U.K. courts also discharge or vary Mareva injunctions, particularly where they adversely affect the rights of innocent third parties.(320) In some cases, the injunction is also varied or discharged to benefit the defendant, provided that the purpose for which the Mareva was originally issued is not thereby compromised.(321)

5) Mareva injunctions - Canada

Following the United Kingdom, Canada lost little time in accepting the Mareva injunction, as early as 1979.(322) The Supreme Court of Canada, in Aetna Financial Services v. Feigelman,(323) recognized the Mareva order, but warned that the English rules regarding its use could not simply be transplanted into a federal state such as Canada without some adaptation.(324) The Court further held that in Canada, a "strong prima facie" case, rather than merely a "good arguable case", would have to be shown by the Mareva applicant in order to obtain the injunction.(325) Mareva injunctions were also approved by the Federal Court of Canada.(326) Canadian courts have also followed the British lead in issuing "worldwide" Mareva injunctions.(327)

Mareva process in the Federal Court of Canada (where most maritime law disputes are tried) is governed by the general rules on interlocutory and interim injunctions in the Federal Court Rules, 1998.(328) The injunction is granted by the judge on motion (Rule 373(1)). The moving party for an interlocutory injunction is required to "undertake to abide by any order concerning damages caused by the granting or extension of the injunction", unless a judge orders otherwise (Rule 373(2)). This is, in effect, the "cross-undertaking in damages" of the U.K., and the applicant may be required to put up security in case the injunction proves to have been unjustified. An interim injunction may be issued, on an ex parte motion, for a period not exceeding fourteen days, when the judge is satisfied, in a case of urgency, that no notice is possible or that to give notice would defeat the purpose of the motion (Rule 374(1)). As in the U.K., the Mareva injunction in Canada may be taken at the same time as the action in rem and arrest.(329)

Although the matter has yet to be decided, it is by no means certain that the issuance of a Mareva injunction ex parte could be successfully challenged in Canada on grounds relating to the Bill of Rights of 1960(330) or the Canadian Charter of Rights and Freedoms of 1982,(331) particularly because of the possibility of the defendant: 1) obtaining the discharge or variance of the injunction, or 2) giving security to obtain release of the assets, or 3) securing the enforcement of the plaintiff's cross-undertaking in damages, or 4) suing for damages for bad faith by the plaintiff in issuing the injunction wrongfully.(332)

6) The Mareva injunction, the action in rem and the attachment

Because the Mareva injunction is purely a court order freezing assets, it does not in itself found the jurisdiction of the court over the merits of the underlying claim, nor does it place the "frozen" assets under the court's authority so as to permit their judicial sale in satisfaction of an eventual judgment allowing the claim. For these reasons, the Mareva injunction is a less effective mechanism for assisting the claimant in quest of pre-judgment security than the civilian saisieconservatoire, the old English Admiralty attachment or the modern American maritime attachment.(333) Nevertheless, the Mareva injunction also has certain advantages in comparison with those more traditional maritime enforcement procedures.

The saisie conservatoire can immobilize either the defendant's property or, in some cases, that of a third party, whereas the Mareva order is limited to the defendant's property. On the other hand, the Mareva injunction can "freeze" any or all of the defendant's assets in or out of the jurisdiction and can be used in aid of any type of claim. By comparison, the saisie conservatoire under the Arrest Convention 1952 permits only the attachment of one ship by any one claimant for any one "maritime claim" listed in art. 1(1) of the Convention. Neither the Mareva nor the saisie conservatoire founds jurisdiction.(334)

The action in rem is more effective than the Mareva injunction in that: (335)

1) It gives the court jurisdiction to adjudicate the claim on its merits and puts the ship or other res in the court's custody. The Mareva applicant, on the other hand, must establish the court's in personam jurisdiction over the claim, and the injunction merely prohibits the removal or dissipation of the assets affected, on pain of contempt of court.

2) The action in rem plaintiff has been held entititled to an arrest warrant as of right, whereas the Mareva injunction petitioner must depend on judicial discretion.

3) The action in rem, asserting maritime liens or statutory rights in rem, enforces those claims according to their respective ranking, while the Mareva injunction confers no special priority on the underlying claim.

4) Moreover, under U.K. law, where the "offending ship" is chartered, either it or a sister ship belonging to the charterer may be arrested in rem if the charterer would have been personally liable on the claim when it arose. By comparison, the Mareva injunction permits only the property of the defendant (the charterer, in this example) to be "frozen".

5) Arrest in rem claimants are rarely condemned in damages, unless their arrest was "wrongful" (i.e. motivated by malice or gross negligence). On the other hand, Mareva petitioners are more frequently found liable in damages, where their injunctions are held to be either unjustified or abusive.

6) Finally, third parties may assert certain well-defined procedures where they are affected by an arrest in rem (e.g. a caveat against arrest), whereas third parties prejudiced by Mareva injunctions must take substantive proceedings to protect their rights.

Among the advantages of the Mareva injunction over the action in rem are the following:(336)

1) The action in rem permits only the arrest of the ship (or in some cases, cargo, freight, bunkers or judicial sale proceeds) in the jurisdiciton. Mareva injunctions, on the contrary, may affect all types of property of the defendant, located both inside the jurisdiction and abroad.

2) Mareva injuctions may affect more than one ship, whereas only one ship may be arrested for any one maritime claim under the Arrest Convention 1952.

3) The Mareva injunction leaves the "frozen" property in the hands of the defendant, thus minimizing costs pending trial of the claim. Arrest in rem, by comparison, entails significant costs of arrest and expenses in custodia legis.

4) Mareva injunction applicants furnish undertakings to pay damages if so ordered, while action in rem plaintiffs must furnish security for the Marshal's expenses of arrest and custody.

5) Mareva injunctions are obtainable when the judge is available. On the other hand, actions in rem may be filed only when the appropriate court offices are open.

6) Mareva petitioners in the U.K. need only undertake to issue proceedings and file an affidavit. Action in rem plaintiffs, however, must actually issue proceedings and file an affidavit.

7) Assets subject to a Mareva order may, with the court's permission, be used to pay ordinary trade debts or to carry on business or personal life, whereas use of assets arrested in rem is inconsistent with their custody by the Admiralty Marshal.

7) Conclusion - Mareva injunction

The Mareva injunction has become an entrenched part of legal process, including maritime law process, in England and other British Commonwealth countries, since its inception in 1975. It compensates partially for the alleged extinction by non-user of the old Admiralty attachment. One may well ask, however, whether Lord Denning would not have been on more solid legal ground in reviving the moribund attachment than in creating a wholly new species of injunction with particular rules of its own. Had he resuscitated the Admiralty attachment, Lord Denning would have provided judges with a more useful pre-judgment security device, which would have confirmed the court's jurisdiction and would also have enabled the U.K. to comply more fully with the essentially civilian regime of the Arrest Convention 1952 in respect of seizures for any maritime claim.(337)

Civilian countries such as France, which never lost the saisie conservatoire, and the United States, which preserved the attachment after its presumed demise in England, are fortunate to possess that most useful weapon in the arsenal of their pre-judgment admiralty procedures.
 
 
 

VII. The Anton Piller Order

1) Introduction

At almost the same time that the English Court of Appeal created the Mareva injunction, it also approved another type of injunction, now known as the "Anton Piller order", the name being attributable to the Court's 1975 decision in Anton Piller KG v. Manufacturing Processes Ltd.(338) The House of Lords, in Rank Film Distributors v. Video Information Centre,(339) upheld the High Court's jurisdiction to grant Anton Piller orders, either as part of the Court's inherent jurisdiction or under its power to issue injunctions, now provided for in sect. 37(1) of the Supreme Court Act 1981.(340)

In 1997, the Anton Piller order was put on a statutory basis in the United Kingdom, by virtue of sect. 7 of the Civil Procedure Act 1997.(341) Under sect. 7(1) of the Act, the High Court may make an order for the purpose of securing, in the case of any existing or proposed proceedings in the Court, the preservation of evidence which is or may be relevant or the preservation of property which is or may be the subject-matter of the proceedings or as to which any question arises or may arise in the proceedings. Any person who is, or who appears to the High Court likely to be, a party to proceedings in the Court, may apply for such an order (sect. 7(2)). The order may direct any person to permit any person described in the order to enter premises (including any vehicle) in England or Wales, and, while on those premises, to carry out a search for or inspection of anything described in the order and to make or obtain a copy, photograph, sample or other record of anything so described. (sect. 7(3), (4) and (8)).(342) The order may also direct the person concerned to provide any person described in the order with any information or articles described in the order and to allow him to retain for safe-keeping anything described in the order (sect. 7(5)). The order has effect subject to any conditions which it may specify (sect. 7(6)). Sect. 7 does not affect any right of a person to refuse to do anything on the ground that to do so might tend to expose him or his spouse to proceedings for an offence or for the recovery of a penalty (sect. 7(7)).

This type of court order, non-compliance with which is sanctioned by contempt of court, has proven to be a valuable procedure for securing and preserving evidence, particularly in intellectual property litigation, although it is used in all types of suits, including maritime cases.

2) The Anton Piller order - United Kingdom

The applicant for an Anton Piller order must show evidence of: 1) a strong prima facie case favouring issuance of the injunction; 2) serious damage (actual or potential) to himself; if the injunction is refused; 3) possession by the defendant of incriminating documents or things; and 4) the possibility that such evidence may be destroyed before any application inter partes can be made.(343) The balance of convenience must also favour issuance of the order.(344) The procedure requires a motion, either before or after trial, supported by an affidavit, in which the applicant must make "full and frank disclosure" of all relevant facts and the specific provisions he is seeking.(345)

3) Anton Piller orders - U.K. procedural safeguards

Anton Piller orders gave rise to an understandable concern over the civil rights of defendants, particularly in respect of the privilege against self-incrimination.(346) As a result, quite elaborate procedural safeguards were established in the United Kingdom, in an effort to prevent any potential abuse of the injunction. These safeguards are included in the same Practice Direction of July 28, 1994 which regulates Mareva injunction process in the U.K.(347)

Among the most important procedural controls on Anton Piller orders are: 1) applications for such an order are no longer heard by judges in chambers; 2) the order is served by a "supervising solicitor", independent of the law firm representing the applicant, who must explain the order to the defendant fairly and in "every day language", inform him of his right to seek legal advice and to apply for the variance or discharge of the order, and report in writing to the plaintiff's solicitor on the carrying out of the order; 3) the defendant may insist that nobody be present who could gain commercially from anything he might read or see on the premises; 4) the defendant may refuse entry to the premises to be searched before 9:30 a.m. or after 5:30 p.m. and all day Saturday and Sunday; 5) the premises may only be searched in the presence of the defendant or a person appearing to be his responsible employee; 6) the items removed from the premises must be listed before removal, with a copy of the list to be remitted to the defendant; and 7) the defendant may seek to have the order varied or discharged.(348)

The plaintiff applying for an Anton Piller order must undertake, inter alia: 1) to compensate the defendant in damages for losses caused by the order or its carrying out; 2) to issue and serve a writ on the defendant (if not already done); 3) to serve the defendant with the affidavits and a notice of motion/summons; as well as with a copy of the supervising solicitor's report on the carrying out of the order; 4) not to use any information or documents obtained as a result of the carring out of the order, except for the legal proceedings concerned; and 5) not to inform anyone else of the proceedings until after the return date.(349) Additional procedural obligations are imposed on the plaintiff's solicitor, particularly regarding return of the items removed.(350)

Among the main grounds for discharging an Anton Piller order are: 1) the applicant's bad faith or material non-disclosure in obtaining the order; 2) the unfounded issuance or improper execution of the order; and 3) the risk of incrimination of the party to whom the order is addressed.(351) Anton Piller orders have also been issued in the United Kingdom with respect to foreign premises and foreign proceedings.(352)

4) Anton Piller orders - Canada

The Canadian judiciary adopted the Anton Piller order in the early 1980's, so that it is now an integral part of the legal process available in both the superior courts of Canada's provinces and territories and the Federal Court of Canada.(353) Nor has the injunction escaped the attention of commentators on Canadian law.(354)

As a result of the Supreme Court of Canada's decision in Dagenais v. Canadian Broadcasting Corporation,(355) discretionary court orders are now subject to judicial review under the Canadian Charter of Rights and Freedoms.(356) Accordingly, in 1996, Reed J. of the Federal Court of Canada, in Fila Canada Inc. v. Doe,(357) held that Anton Piller orders were subject to sect. 8 of the Charter, prohibiting unreasonable search and seizure. She took the opportunity to suggest a few specific practices, resembling those of the U.K., which she believed should be adopted by the Federal Court in respect of such orders, in the interests of civil rights of Canadians.(358)

Canadian judges are showing caution in granting Anton Piller orders, following English precedent. In Profekta Internaional Inc. v. Mai,(359) for example, it was held that Anton Piller orders should be granted in only "the rarest of circumstances", because they confer on the moving party a search and seizure power which runs contrary to the principles of private property and trespass. To obtain such an order, as in England, the moving party must demonstrate to the Canadian court: 1) an extremely strong prima facie case; 2) the potential for very serious damage; and 3) clear evidence that the other party has in its possession incriminating documents or things, and that there is a real possibility that the other party may destroy such material before any application inter partes can be made. After the action has commenced, the court must also be convinced that it is appropriate to proceed in the absence of the other party.(360) The judge in Profekta was loathe to grant the order ex parte, particularly as the other party was represented by counsel, but did so because of the plaintiff had shown "compelling reasons" for believing that if notice of the motion were given to the defendant, the evidence sought would disappear, thus justifying a derogation from the audi alteram partem rule.(361) There was also compelling evidence that the defendant was "...bent on flouting the process of the court by refusing to abide by the ordinary procedure of discovery."(362)

5) Conclusion - Anton Piller orders

Anton Piller orders serve to ensure that vital evidence will be available at trial, before it can be destroyed or spirited away by unscrupulous defendants. The procedure must be closely regulated, however, to safeguard basic property rights of honest individuals and corporations.(363)
 
 

VIII. The Arrest of Ships Convention 1999 (Adopted March 12, 1999)

1) Introduction

A Draft Revision of the Arrest Convention 1952 was adopted by the Comité Maritime International (CMI) at its conference in Lisbon in 1985.(364) This "Lisbon Draft" was submitted by the CMI, together with a draft revision of the Maritime Liens and Mortgages Convention 1967,(365) to the International Maritime Organization (IMO) and the United Nations Conference on Trade and Development (UNCTAD). The Joint Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (JIGE), established by IMO and UNCTAD to review the maritime liens and mortgages conventions and related enforcement procedures, recommended in 1989 that further work on revising the Arrest Convention 1952 be postponed, pending the adoption of a new Maritime Liens and Mortgages Convention.(366)

Following the adoption of the Maritime Mortgages and Liens Convention 1993,(367) work resumed within the JIGE on revising the Arrest Convention 1952.

The JIGE completed its consideration of revisions to the Arrest Convention at its ninth session, held in Geneva from December 2 to 6, 1996(368) and requested the Secretariats of IMO and UNCTAD, in consultation with the JIGE Chairman, to prepare a set of draft articles on the basis of the decisions taken by the Group.(369) The "Draft Articles for a Convention on Arrest of Ships", dated April 14, 1997, were accordingly prepared,(370) for submission to a diplomatic conference requested by the JIGE, (371) which was subsequently scheduled for March 1 to 12, 1999 in Geneva. The final text of the International Convention on the Arrest of Ships, 1999 was adopted at Geneva on March 12, 1999.(372) The Convention will remain open for signature from September 1, 1999 to August 31, 2000 and thereafter for accession (art. 12(1)). It will come into force six months after the date when ten States have expressed their consent to be bound by it (art. 14(1)).

The writer will confine his remarks to certain general principles underlying the new Convention, rather than to the details of its wording.

2) General observations on the Arrest Convention 1999

a) The definition of "arrest"

The new Convention defines "arrest" at art. 1(2) to mean "any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument". The main change from 1952, apart from the reference to "other enforceable instrument", is the inclusion of the words "restriction on removal of a ship ", which would seem to include Mareva injunctions issued in respect of vessels. The new definition, like its predecessor, would also include the civilian saisie conservatoire, and the American maritime attachment, as well as arrest in an action in rem. That the new Convention encompasses the two styles of arrest, being the common law arrest in rem and the civilian saisie conservatoire, or attachment, is a strength of the Convention, just as it is of the 1952 Convention.

It would also appear that the new Arrest Convention, would recognize many, although seemingly not all, "special legislative rights".(373) Special legislative rights are rights permitting governments and certain other public bodies to seize, detain and, in some cases, sell or confiscate ships, in order to guarantee certain claims (e.g. harbour dues, wreck removal costs and pollution expenses or damages), or as sanctions for certain offences (e.g. narcotics trafficking, fisheries violations or illegal immigration). Governmental rights of this type abound today, under both international conventions and national legislation, in virtually all countries of the world, and they are frequently accorded precedence by national law over maritime liens and ship mortgages. The failure to take account of them in the Maritime Liens and Mortgages Convention 1993 is a lacuna which threatens to prevent many countries, especially major maritime states such as the United Kingdom and the United States, from becoming parties to that Convention.(374) The new Arrest Convention, for its part, quite properly provides at art. 8(3):

" This Convention does not affect any rights or powers vested in any government or its departments, or in any public authority, or in any dock or harbour authority, under any international convention or under any domestic law or regulation, to detain or otherwise prevent from sailing any ship within their jurisdiction."


This provision is quite similar to the second phrase of art. 2 of the 1952 Convention, except that it recognizes governmental rights of detention of ships arising under international conventions, as well as under national laws and regulations. This is an important addition, because today many international conventions confer rights of ship detention (or even confiscation) on governments, notably in respect of drug trafficking(375) and pollution.(376)

Although many special legislative rights would be covered by this rule, it unfortunately is limited to detention and thus would not seem to include special legislative rights which empower public bodies, without court intervention, to sell the detained vessel, and to be paid in preference to most, if not all, other claimants out of the proceeds of that sale.(377)

b) A "closed" list of "maritime claims

The new Convention begins, as does the 1952 Convention, with a list of "maritime claims". It is important, of course, not to confuse "maritime claims" with "maritime liens". In the 1952 and 1999 Arrest Conventions, "maritime claims" refers merely to claims permitting the arrest of a ship. Some "maritime claims" are "maritime liens" and some are not. Whether specific types of "maritime claims" constitute "maritime liens" (which follow the ship and rank before ship mortgages) or merely statutory rights in rem (which do not follow the ship and rank after the mortgage) depends on other international conventions (governing maritime liens and mortgages) and on national law.

The JIGE could not reach agreement on whether the list of "maritime claims" should be "closed" (i.e. exhaustive), as under the 1952 Convention, or "open-ended", to take account of new types of maritime claims which may emerge with the passage of time. Accordingly, art. 1(1) of the Draft Articles 1997 set forth a list of twenty-two specific "maritime claims" (art. 1(1)(a) to (v)), but the preamble, or "chapeau" (art. 1(1)), included wording in brackets (i.e. wording for decision by the diplomatic conference) which would have made "maritime claims" an "open-ended" concept.(378)

The diplomatic conference appears to have opted for a "closed" list of "maritime claims", as found in the Arrest Convention 1952. Art. 1(1) of the Arrest Convention 1999 begins with the words: "'Maritime Claim' means a claim arising out of one or more of the following:" There follows the list of twenty-two categories of "maritime claims" which permit the arrest of a ship. In my view, it is regrettable that an "open-ended" list was rejected, because it would have provided greater flexibility to courts applying the Arrest Convention 1999 in future years.

c) Some specific maritime claims

The Arrest Convention 1999 includes some new maritime claims not contemplated in the 1952 Convention, notably costs of repatriation of masters, officers and seamen and social insurance contributions payable on their behalf (i.e. it would seem to cover employee's share payable by source deductions from wages) (art. 1(1)(o)). Other new maritime claims are claims for insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer (art. 1(1)(q)) and claims for commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the shipowner or demise charterer (art. 1(1)(r)).

It would have been useful to add to art. 1(1)(o) insurance premiums (e.g. life insurance premiums) payable in respect of the master and seamen, although such a claim should not have maritime lien status. No such addition was made, however, so there is no right of arrest for life insurance premiums under the Arrest Convention 1999.

Art. 1(1)(n) of the Draft Articles 1997 concerning "port, canal and other waterways dues and charges", was amended, however, to include express mention of "dock charges" in the final text of that provision. Dock charges were expressly referred to in art. 1(1)(l) of the Arrest Convention 1952 and in the Lisbon Draft 1985. Such an express mention better protects the interests of terminal operators in particular.

Another amendment to the 1997 Draft Articles was made in adding the word "reconstruction", so that art. 1(1)(m) reads: "construction, reconstruction, repair, converting or equipping of the ship" in art. 1(1)(m) of the final text. The addition is important, because reconstruction differs from conversion and because the Maritime Liens and Mortgages Convention 1993, at art. 7(1)(b), recognizes the ship repairer's right of retention of the vessel for repair, including reconstruction.

d) Arrest of ships about to set sail or sailing

The JIGE was unable to resolve whether art. 2(3) of the Draft Articles 1997 permitting the arrest of a ship about to set sail (as per art. 3(1) of the 1952 Convention) should also permit the arrest of a ship after it has begun to sail (as proposed in the Lisbon Draft 1985). The whole provision was therefore bracketed for further discussion at the diplomatic conference. Although many expected that the final Convention text would permit arrest in both situations,(379) thereby facilitating the arrest of ships just after they leave berth and while still within the jurisdiction of the arresting court, there is no express reference to the matter in the Convention as adopted. It would seem that the issue has been left to national law, inasmuch as art. 2(4) provides that: "Subject to the provisions of this Convention, the procedure relating to the arrest of a ship or its release shall be governed by the law of the State in which the arrest was effected or applied for".

e) Arrest for maritime liens and statutory rights in rem

Art. 3(1)(a)(i) to (v) of the Draft Articles 1997 expressly provided for arrest for maritime liens recognized under art. 4 of the Maritime Liens and Mortgages Convention 1993. The final text of the new Arrest Convention does not include any equivalent provision. Rather, art. 3(1)(e) of the Arrest Convention 1999 permits arrest of any ship in respect of which a maritime claim is asserted if "(e) the claim is against the owner, demise charterer, manager or operator of the ship and is secured by a maritime lien which is granted or arises under the law of the State where the arrest is applied for." (emphasis added). This could presumably include maritime lien claims contemplated by art. 4 of the Liens and Mortgages Convention 1993 (if the State where the arrest is applied for is a party to that Convention), as well as any other maritime liens granted by or arising under that country's national law.(380)

The Draft Articles 1997 had a bracketed provision (art. 3(1)(b)) which would have permitted arrest for maritime liens, other than those under art. 4 of the Maritime Liens and Mortgages Convention 1993, which are recognized under the law of the State where the arrest was requested. By using "recognized", the bracketed provision would have permitted the arrest of a ship for foreign maritime liens recognized by a state according to its conflict of laws rules, even where equivalent maritime liens did not exist under its own national law.(381) One gathers that the replacement of "recognized" by "grants or arises" in art. 3(1)(e) of the Arrest Convention 1999 in effect means that the arrest of a ship is permitted only for foreign maritime lien claims which correspond to maritime liens existing under the law of the arresting State (the U.K. position(382)) and not (as in the U.S.(383) and Canada(384)) for maritime liens conferred by the properly applicable foreign law, even if the equivalent claim is not secured by a maritime lien in the arresting State. If so, such a decision, providing for arrest for only those foreign maritime liens which are the same as maritime liens granted under the law of the forum, is regrettable, because it fails to take account of the true nature of a maritime lien as a substantive right, it encourages forum shopping and is an unfortunate rejection of basic principles of private international law.(385)

Arrest for claims under ship mortgages, hypothecs and charges of the same nature is permitted by art. 3(1)(c), as is arrest for claims related to ownership or possession of the ship (art. 3(1)(d)).

Art. 3(1)(a) and (b) appears to covers arrest for claims secured by statutory rights in rem as understood in the maritime law of England and most other British Commonwealth countries, including Canada. These provisions permit arrest of any ship in respect of which a maritime claim is asserted if:

"(a) the person who owned the ship at the time when the maritime claim arose is liable for the claim and is owner of the ship when the arrest is effected; or

(b) the demise charterer of the ship at the time when the maritime claim arose is lable for the claim and is demise charterer or owner of the ship when the arrest is effected;..."


It is noteworthy that the relevant time for the arising of the statutory right is properly identified as the time of arrest of the ship (as under Canadian law), rather than the time of issue of the writ in rem (as in the U.K. at present). The provision would also encourage countries such as Canada to amend its law so as to permit demise charterers to bind the ship in rem.

f) Sister-ship arrest

The Arrest Convention 1999 permits sister-ship arrest at art. 3(2), which reads as follows:

"Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim and who was, when the claim arose:
(a) owner of the ship in respect of which the maritime claim arose; or
(b) demise charterer, time charterer or voyage charterer of that ship.
"This provision does not apply to claims in respect of ownership or possession of a ship."


Art. 3(2) is useful, in authorizing the arrest of ships belonging to all categories of charterers for maritime claims on which they are liable in respect of the "offending ship", as well as of sister-ships belonging to the owner of the "offending ship" who is personally liable on such claims. The provision, like art. 3(1) on arrest of the "offending ship" itself, also quite properly identifies the time of the arrest, rather than the time of the issue of the writ in rem or the time of the filing of the statement of claim, as the relevant moment for determining when the right of arrest arises.

Art. 3(2) may well prove to have a "fatal flaw", however, in that it restricts sister-ship arrest to ships in the same legal ownership as the "offending ship", rather than extending the right of arrest to all sister-ships legally or beneficially owned at the time of the arrest by the owner of the "offending ship" who is personally liable on the maritime claim concerned. "Beneficial ownership" of ships in maritime law normally refers to the ownership of a party who is not the legal (i.e. registered) owner of the vessel, but who stands behind that legal owner and has rights over the vessel (including notably the right to dispose of it). A "beneficial owner" would normally include, for example, a parent corporation or a holding company. Today, many fleets of ships operate within large shipowning groups, owned and controlled by the same parent corporation or holding company, but with each vessel in the fleet or group legally owned by (i.e. registered in the name of) a separate, one-ship company. None of these companies is the registered owner of any of the other vessels in the fleet, but all of them have the same "beneficial" owner, being the parent corporation or holding company. The fact that art. 3(2) of the new Convention permits sister-ship arrest only of ships in the same legal ownership, and not of vessels in the same beneficial ownership, fails to take account of the reality of shipowning in contemporary maritime commerce.

g) Limitation on security for release

The Arrest Convention 1999 limits the amount of security to be required for the release of a ship from arrest, to the value of the arrested ship (arts. 4(2) and 4(5)(b)). A similar limitation has been inserted into art. 5(1)(a) with respect to the right of rearrest and multiple arrest.

h) Countersecurity and wrongful arrest

Art. 6(1) of the new Convention authorizes the arresting court to impose on the claimant the obligation to give countersecurity for losses which may be incurred by the defendant as a result of the arrest and for which the claimant may be found liable. These losses would include, but would not be restricted to, losses resulting from the arrest having been "wrongful" or "unjustified" or from excessive security having been demanded and provided.

Art. 6(2) will also enable the arresting court to grant damages for "wrongful" or "unjustified" arrest, or for "excessive security" having been demanded and provided, the claimaint's liability in this regard to be determined according to the law of the State where the arrest was effected (art. 6(3)).

These provisions are an important recognition of the need to sanction arrests inspired by bad faith, malice or gross negligence on the part of the claimant (i.e. "wrongful" arrests, as understood in the U.K., U.S., Canada and other countries of common law tradition). The Convention goes further, however, in also permitting damages to be assessed and countersecurity to be imposed, in respect of "unjustified" arrest (i.e. arrest effected erroneously, without proper legal foundation, but not motivated by bad faith or gross negligence). This position is taken by many civilian jurisdictions. Common-law jurisdictions, on the other hand, have tended to award costs (at most) for bona fide arrest effected by simple mistake of law. The final text appears to have enshrined the civilian rule.

In America, where damages are usually very generous in comparison to other jurisdictions, the giving of discretion to a judge to award damages for "wrongful" or "unjustified" arrest or for demanding and obtaining excessive security may seem like the opening of the "floodgates" to "liability in an indeterminate amount".(386) This fear has proven to be unsubstantiated in civilian jurisdictions, however.

i) Application of the Convention

Art. 8(1) makes the new Convention apply to "any ship within the jurisdiction of any State Party, whether or not that ship is flying the flag of a State Party." There was some suggestion of amending this provision, so as to reintroduce the rule of art. 8(2) of the 1952 Arrest Convention, whereby a ship flying the flag of a non-Contracting State could be arrested in a Contracting State either for one or more of the "maritime claims" enumerated in art. 1 of that Convention or for any other claim permitting arrest of the ship under the law of the State of arrest. No such addition was made in the final text, however. Rather, it appears that the Convention will govern the arrest of all ships in States party to the new Convention, regardless of their flags. This rule makes the "maritime claims" enumerated in art. 1(1) the sole basis on which States party to the Convention may arrest ships of any flag or registry.

The consequence of this change would seem to be that States party to the Convention may not arrest ships under national law, unless it is for a maritime claim listed in art. 1(1).

j) Convention does not create maritime liens

Art. 9 of the new Convention specifies that nothing in the Convention shall be construed as creating a maritime lien. This provision was originally included in art.8(3) of the Draft Articles 1997, where it did not really fit. It has has been given greater prominence in art. 9. It is similar to art. 9 of the 1952 Arrest Convention.

k) International uniformity is essential

States must now decide whether or not to ratify or accede to the Arrest Convention 1999 or to give effect to its provisions in their national legislation. Because the new Convention embodies significant changes from the 1952 text, one wonders whether ratification, accession and adherence will be forthcoming quickly from many countries, and particularly from the major shipping nations. It is imperative that States respond positively to the challenge of fostering greater uniformity in this vitally important domain of maritime law. Such an international outlook is especially necessary now, because of the regrettable tendency of many countries, in recent years, to "go it alone" in certain other sectors of maritime law, notably the carriage of goods by sea. The benefits of legal uniformity in the area of the arrest of ships, and the countervailing disadvantages of legal disharmony in this field, are impossible to exaggerate, from the standpoint of all partners in the maritime community (shipowners, underwriters, claimants, judges, lawyers and governments). But achieving the desirable goal of international harmonization comes at a price to national law, while the desired new international convention must not be encumbered with major defects.
 
 

IX. The Challenges

In maritime law, as in all law generally, there can be no right without some effective procedure to enforce it. Western countries, ever conscious of the mobility of ships and the resulting risk of non-recovery of maritime claims by creditors, have been creative in developing pre-judgment security procedures suited to the demands of justice and of international seagoing commerce. The general lex maritima of medieval Europe gave birth to a form of enforcement process for maritime claims which slowly took on distinct features in England and on the Continent. Continental countries maintained their saisie conservatoire, or conservatory attachment, for use in conjunction with the action in personam, their single form of action for any claim. England, by comparison, under the pressure of changing legal concepts and the conflict between the civilian Admiralty Court and the common law bench, was making an ever sharper distinction, by the late seventeenth century, between the action in rem and the action in personam and was restricting the Admiralty judges almost exclusively to in rem enforcement. The decline of in personam litigation led to the "withering" of the Admiralty attachment as well, which (supposedly) expired in the eighteenth century, only to be replaced, rather imperfectly, in the 1970's by the Mareva injunction. Meanwhile, America, breaking its political ties with England before 1800, retained both the attachment and the action in rem in a uniquely rich maritime law, while Commonwealth countries such as Canada inherited and adapted English admiralty law and procedure. Procedures governing arrest, attachment, saisie conservatoire and Mareva injunctions are now subject to detailed rules and regulations in every country, while related procedures such as the Anton Piller order contribute to the judicial "toolbox" available to courts in protecting the rights of claimants.

There are at least two major challenges in the procedural law of maritime claims enforcement today. At the national level, the increased regard for civil rights and their entrenchment in constitutions can be expected to result sooner or later in the questioning of the traditional legal process of ship arrest and attachment on grounds of due process, a questioning to which America has already responded creatively and effectively. At the international level, the adoption of the Arrest Convention 1999 will challenge all countries to decide whether the new Arrest Convention 1999 is a sufficient advance over the Arrest Convention 1952 to merit their ratification or accession.

X. Conclusion - The Arrest Convention 1999

The new Arrest Convention 1999 contains changes which will be of minor or major importance, depending on the present national law of a nation contemplating the Convention's ratification. There are improvements and some steps backwards, which I have briefly outlined above, whilst it bridges the civilian concept of saisie consevatoire (attachment) and the common law concept of arrest in rem, as did the 1952 Convention.

Among the advances which the 1999 Convention marks over the 1952 Convention are the following:

a) the definition of "arrest" (art. 1(2)) includes the detention of a ship under a Mareva injunction;

b) special legislative rights of detention of ships by governments, dock/harbour and other public authorities are recognized under international conventions, rather than merely under domestic laws and regulations (art. 8(3));

c) the definition of "maritime claims" includes important new claims permitting ship arrest, notably repatriation costs and social insurance contributions for crewmembers (art. 1(1)(o)); insurance premiums and P. & I. club calls relating to the ship (art. 1(1)(q)); commissions and brokerage/agency fees payable in respect of the ship (art. 1(1)(r); and ship reconstruction claims (art. 1(1)(m));

d) statutory rights in rem are more clearly recognized as authorizing ship arrest, in respect of maritime claims created by both owners and demise charterers (art. 3(1)(a) and (b)).

e) security for the release of ships from arrest and rearrest is properly limited to the value of the ship (art. 4(2), 4(5)(b) and 5(1)(a));

f) countersecurity may be ordered and damages may be awarded for all improper arrest, whether it be "wrongful" (i.e. grossly negligent or in bad faith) or "unjustified" (i.e. erroneous), as well as where "excessive security" for the release of the vessel is demanded and provided (art. 6(1) and (2)). (The extension of damages and countersecurity to "unjustified" arrests is probably a natural evolution of the law in respect of "wrongful" arrest, and fears about potentially unlimited liability flowing from this change seem exaggerated, especially in the light of the experience of civilian countries, where damages have long been recoverable for both "unjustified" and "wrongful" conservatory attachments);

g) there are also interesting provisions on forum non conveniens and on the recognition of foreign judgments at art. 7(2) and 7(5) respectively.

On the other hand, the 1999 Arrest Convention contains some disappointments and gaps which may well cause many States, including major shipping nations, to refuse ratification or accession. The following weaknesses in the new instrument are particularly apparent:

a) the list of "maritime claims" in art. 1(1) is unfortunately a "closed", rather than an "open-ended", list, thus depriving the new Convention of an important element of flexibility which an "open" list would have afforded;

b) special legislative rights of sale and of priority on the proceeds (as opposed to rights of mere detention) in respect of ships immobilized by orders of governments and public authorities are not mentioned in the Convention (although some measure of recognition of these rights is afforded under the Liens and Mortgages Convention 1993);

c) the arrest of ships for foreign maritime liens differing from those existing under the lex fori will not be permitted (art. 3(1)(e) permits arrest only for a maritime lien which is "granted or arises" under the law of the State where the arrest is applied for, rather than for any maritime lien "recognized" under that law);

d) the sister-ship arrest provisions (art. 3(2)) permit only the arrest of vessels in the same legal ownership, and not of those in the same beneficial ownership, as the "offending ship".

One therefore wonders whether the new Convention has made significant useful changes, changes which are sufficient to convince those nations which are not party to the 1952 Convention to join in.(387) And are the changes sufficiently useful to convince the over seventy nations which are parties to the 1952 Convention to denounce that Convention and to ratify or accede to the 1999 Convention?



 
 

INTERNATIONAL CONVENTION ON ARREST OF SHIPS, 1999

 

The States Parties to this Convention,

Recognizing the desirability of facilitating the harmonious and orderly development of world seaborne trade,

Convinced of the necessity for a legal instrument establishing international uniformity in the field of arrest of ships which takes account of recent developments in related fields,

Have agreed as follows:

Article 1

Definitions

For the purposes of this Convention:

1. "Maritime Claim" means a claim arising out of one or more of the following:

    (a) loss or damage caused by the operation of the ship;

    (b) loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship;

    (c) salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment;

    (d) damage or threat of damage caused by the ship to the environment, coastline or related interests; measures taken to prevent, minimize, or remove such damage; compensation for such damage; costs of reasonable measures of reinstatement of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; and damage, costs, or loss of a similar nature to those identified in this subparagraph (d);

    (e) costs or expenses relating to the raising, removal, recovery, destruction or the rendering harmless of a ship which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such ship, and costs or expenses relating to the preservation of an abandoned ship and maintenance of its crew;

    (f) any agreement relating to the use or hire of the ship, whether contained in a charter party or otherwise;

    (g) any agreement relating to the carriage of goods or passengers on board the ship, whether contained in a charter party or otherwise;

    (h) loss of or damage to or in connection with goods (including luggage) carried on board the ship;

    (i) general average;

    (j) towage;

    (k) pilotage;

    (l) goods, materials, provisions, bunkers, equipment (including containers) supplied or services rendered to the ship for its operation, management, preservation or maintenance;

    (m) construction, reconstruction, repair, converting or equipping of the ship;

    (n) port, canal, dock, harbour and other waterway dues and charges;

    (o) wages and other sums due to the master, officers and other members of the ship's complement in respect of their employment on the ship, including costs of repatriation and social insurance contributions payable on their behalf;

    (p) disbursements incurred on behalf of the ship or its owners;

    (q) insurance premiums (including mutual insurance calls) in respect of the ship, payable by or on behalf of the shipowner or demise charterer;

    (r) any commissions, brokerages or agency fees payable in respect of the ship by or on behalf of the shipowner or demise charterer;

    (s) any dispute as to ownership or possession of the ship;

    (t) any dispute between co-owners of the ship as to the employment or earnings of the ship;

    (u) a mortgage or a "hypothèque" or a charge of the same nature on the ship;

    (v) any dispute arising out of a contract for the sale of the ship.

2. "Arrest" means any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument.

3. "Person" means any individual or partnership or any public or private body, whether corporate or not, including a State or any of its constituent subdivisions.

4. "Claimant" means any person asserting a maritime claim.

5. "Court" means any competent judicial authority of a State.
 
 

Article 2

Powers of arrest

1. A ship may be arrested or released from arrest only under the authority of a Court of the State Party in which the arrest is effected.

2. A ship may only be arrested in respect of a maritime claim but in respect of no other claim.

3. A ship may be arrested for the purpose of obtaining security notwithstanding that, by virtue of a jurisdiction clause or arbitration clause in any relevant contract, or otherwise, the maritime claim in respect of which the arrest is effected is to be adjudicated in a State other than the State where the arrest is effected, or is to be arbitrated, or is to be adjudicated subject to the law of another State.

4. Subject to the provisions of this Convention, the procedure relating to the arrest of a ship or its release shall be governed by the law of the State in which the arrest was effected or applied for.

Article 3

Exercise of right of arrest

1. Arrest is permissible of any ship in respect of which a maritime claim is asserted if:

    (a) the person who owned the ship at the time when the maritime claim arose is liable for the claim and is owner of the ship when the arrest is effected; or

    (b) the demise charterer of the ship at the time when the maritime claim arose is liable for the claim and is demise charterer or owner of the ship when the arrest is effected; or

    (c) the claim is based upon a mortgage or a "hypothèque" or a charge of the same nature on the ship; or

    (d) the claim relates to the ownership or possession of the ship; or

    (e) the claim is against the owner, demise charterer, manager or operator of the ship and is secured by a maritime lien which is granted or arises under the law of the State where the arrest is applied for.

2. Arrest is also permissible of any other ship or ships which, when the arrest is effected, is or are owned by the person who is liable for the maritime claim and who was, when the claim arose:

    (a) owner of the ship in respect of which the maritime claim arose; or

    (b) demise charterer, time charterer or voyage charterer of that ship.

This provision does not apply to claims in respect of ownership or possession of a ship.

3. Notwithstanding the provisions of paragraphs 1 and 2 of this article, the arrest of a ship which is not owned by the person liable for the claim shall be permissible only if, under the law of the State where the arrest is applied for, a judgment in respect of that claim can be enforced against that ship by judicial or forced sale of that ship.

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.

Article 5

Right of rearrest and multiple arrest

1. Where in any State a ship has already been arrested and released or security in respect of that ship has already been provided to secure a maritime claim, that ship shall not thereafter be rearrested or arrested in respect of the same maritime claim unless:

    (a) the nature or amount of the security in respect of that ship already provided in respect of the same claim is inadequate, on condition that the aggregate amount of security may not exceed the value of the ship; or

    (b) the person who has already provided the security is not, or is unlikely to be, able to fulfil some or all of that person's obligations; or

    (c) the ship arrested or the security previously provided was released either:

            (i) upon the application or with the consent of the claimant acting on reasonable grounds, or
            (ii) because the claimant could not by taking reasonable steps prevent the release.

2. Any other ship which would otherwise be subject to arrest in respect of the same maritime claim shall not be arrested unless:

    (a) the nature or amount of the security already provided in respect of the same claim is inadequate; or

    (b) the provisions of paragraph 1 (b) or (c) of this article are applicable.

3. "Release" for the purpose of this article shall not include any unlawful release or escape from 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.

Article 7

Jurisdiction on the merits of the case

1. The Courts of the State in which an arrest has been effected or security provided to obtain the release of the ship shall have jurisdiction to determine the case upon its merits, unless the parties validly agree or have validly agreed to submit the dispute to a Court of another State which accepts jurisdiction, or to arbitration.

2. Notwithstanding the provisions of paragraph 1 of this article, the Courts of the State in which an arrest has been effected, or security provided to obtain the release of the ship, may refuse to exercise that jurisdiction where that refusal is permitted by the law of that State and a Court of another State accepts jurisdiction.

3. In cases where a Court of the State where an arrest has been effected or security provided to obtain the release of the ship:

    (a) does not have jurisdiction to determine the case upon its merits; or

    (b) has refused to exercise jurisdiction in accordance with the provisions of paragraph 2 of this article,

such Court may, and upon request shall, order a period of time within which the claimant shall bring proceedings before a competent Court or arbitral tribunal.

4. If proceedings are not brought within the period of time ordered in accordance with paragraph 3 of this article then the ship arrested or the security provided shall, upon request, be ordered to be released.

5. If proceedings are brought within the period of time ordered in accordance with paragraph 3 of this article, or if proceedings before a competent Court or arbitral tribunal in another State are brought in the absence of such order, any final decision resulting therefrom shall be recognized and given effect with respect to the arrested ship or to the security provided in order to obtain its release, on condition that:

    (a) the defendant has been given reasonable notice of such proceedings and a reasonable opportunity to present the case for the defence; and

    (b) such recognition is not against public policy (ordre public).

6. Nothing contained in the provisions of paragraph 5 of this article shall restrict any further effect given to a foreign judgment or arbitral award under the law of the State where the arrest of the ship was effected or security provided to obtain its release.

Article 8

Application

1. This Convention shall apply to any ship within the jurisdiction of any State Party, whether or not that ship is flying the flag of a State Party.

2. This Convention shall not apply to any warship, naval auxiliary or other ships owned or operated by a State and used, for the time being, only on government non-commercial service.

3. This Convention does not affect any rights or powers vested in any Government or its departments, or in any public authority, or in any dock or harbour authority, under any international convention or under any domestic law or regulation, to detain or otherwise prevent from sailing any ship within their jurisdiction.

4. This Convention shall not affect the power of any State or Court to make orders affecting the totality of a debtor's assets.

5. Nothing in this Convention shall affect the application of international conventions providing for limitation of liability, or domestic law giving effect thereto, in the State where an arrest is effected.

6. Nothing in this Convention shall modify or affect the rules of law in force in the States Parties relating to the arrest of any ship physically within the jurisdiction of the State of its flag procured by a person whose habitual residence or principal place of business is in that State, or by any other person who has acquired a claim from such person by subrogation, assignment or otherwise.

Article 9

Non-creation of maritime liens

Nothing in this Convention shall be construed as creating a maritime lien.

Article 10

Reservations

1. Any State may, at the time of signature, ratification, acceptance, approval, or accession, or at any time thereafter, reserve the right to exclude the application of this Convention to any or all of the following :

    (a) ships which are not seagoing;

    (b) ships not flying the flag of a State Party;

    (c) claims under article 1, paragraph 1 (s).

2. A State may, when it is also a State Party to a specified treaty on navigation on inland waterways, declare when signing, ratifying, accepting, approving or acceding to this Convention, that rules on jurisdiction, recognition and execution of court decisions provided for in such treaties shall prevail over the rules contained in article 7 of this Convention.

Article 11

Depositary

This Convention shall be deposited with the Secretary-General of the United Nations.

Article 12

Signature, ratification, acceptance, approval and accession

1. This Convention shall be open for signature by any State at the Headquarters of the United Nations, New York, from 1 September 1999 to 31 August 2000 and shall thereafter remain open for accession.

2. States may express their consent to be bound by this Convention by:

(a) signature without reservation as to ratification, acceptance or approval; or

(b) signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval; or

(c) accession.

3. Ratification, acceptance, approval or accession shall be effected by the deposit of an instrument to that effect with the depositary.

Article 13

States with more than one system of law

1. If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in this Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.

2. Any such declaration shall be notified to the depositary and shall state expressly the territorial units to which the Convention applies.

3. In relation to a State Party which has two or more systems of law with regard to arrest of ships applicable in different territorial units, references in this Convention to the Court of a State and the law of a State shall be respectively construed as referring to the Court of the relevant territorial unit within that State and the law of the relevant territorial unit of that State.

Article 14

Entry into force

1. This Convention shall enter into force six months following the date on which 10 States have expressed their consent to be bound by it.

2. For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect three months after the date of expression of such consent.

Article 15

Revision and amendment

1. A conference of States Parties for the purpose of revising or amending this Convention shall be convened by the Secretary-General of the United Nations at the request of one-third of the States Parties.

2. Any consent to be bound by this Convention, expressed after the date of entry into force of an amendment to this Convention, shall be deemed to apply to the Convention, as amended.

Article 16

Denunciation

1. This Convention may be denounced by any State Party at any time after the date on which this Convention enters into force for that State.

2. Denunciation shall be effected by deposit of an instrument of denunciation with the depositary.

3. A denunciation shall take effect one year, or such longer period as may be specified in the instrument of denunciation, after the receipt of the instrument of denunciation by the depositary.

Article 17

Languages

This Convention is established in a single original in the Arabic, Chinese, English, French, Russian and Spanish languages, each text being equally authentic.

DONE AT Geneva this twelfth day of March, one thousand nine hundred and ninety-nine.

IN WITNESS WHEREOF the undersigned being duly authorized by their respective Governments for that purpose have signed this Convention.


1.

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University, and counsel to Langlois, Gaudreau, O'Connor of Montreal. The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.

2.

Professor of Law, McGill University, Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University, and counsel to Langlois, Gaudreau, O'Connor of Montreal. The author is indebted to Robert C. Wilkins, B.A., B.C.L., for his assistance in the preparation and correction of the text.

3.

 Specific rules on arrest in rem in the United States are established by Supplemental Rule "C" of the Supplemental Rules for Certain Admiralty and Maritime Claims, forming part of the Federal Rules of Civil Procedure, 28 U.S.Code Appx.

4.

 Specific rules on maritime attachment in the United States are established by Supplemental Rule "B" of the Supplemental Rules for Certain Admiralty and Maritime Claims, supra. The attachment also exists independent of those rules, by virtue of the general maritime law of the United States. See Schiffahars. Leonhardt & Co. v. A. Bottacchi S.A. de Navegacion 773 F.2d 1528, 1986 AMC 1 (11 Cir. 1985).

5.

 W. Tetley, Maritime Liens and Claims, 2 Ed., Les Éditions Yvon Blais, Montreal, Quebec, 1998 at pp. 937, 973-977, 1029-1030 and 1032-1033 (hereinafter cited as "Tetley, M.L.C.").

6.

 International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships, adopted at Brussels, May 10, 1952, and in force as of February 24, 1956 (hereinafter cited as "Arrest Convention 1952). See generally Francesco Berlingieri, Berlingieri on Arrest of Ships: A Commentary on the 1952 Arrest Convention, 2 Ed., Lloyd's, London, 1996 (hereinafter cited as "Berlingieri, Arrest of Ships"). See text of the Arrest Convention 1952 reproduced in Tetley, M.L.C., Appendix "D" at pp. 1439-1445.

7.

 See Document No. A/CONF.188/6, dated March 12, 1999.

8.

 A. Browne, A Compendious View of the Civil Law and of the Law of the Admiralty, vol II, Dublin, 1802; New York 1840 at p. 99 (hereinafter cited as Browne, Civil Law).

9.

 Hale and Fleetwood on Admiralty Jurisdiction (M.J. Prichard and D.E.C. Yale, eds.), Selden Society, vol. 108, London, 1992 Introduction at pp. xxxix-xl (hereinafter cited as "Hale and Fleetwood").

10.

 Ibid. at pp. xxxix-xl.

11.

 The Blacke Booke of the Admiralty, being volume I of the four-volume collection of medieval sea laws compiled by Sir Travers Twiss under the title The Black Book of the Admiralty, London, 1871-1876.

12.

 The Black Book of the Admiralty, vol. 1, London, 1871 at pp. 178-220. The title Ordo Judiciorum was given to the extract by Twiss.

13.

 Francis Clerke, Praxis supremae curiae Admiralitatis at Title 24 (1722 Ed.); at Title 28 (1829 Ed.) (hereinafter cited as "Clerke").

14.

 In the Ordo Judiciorum, there could be no question of contumacy until the defendant had received the citation. In England, by the time of Henry VIII, however, the arrest of the defendant's property was done contemporaneously with the citation of the defendant, as a kind of "pre-emptive strike". This was justified (by Bracton, for example) on the ground that the failure to respond to the citation was an immediate contumacy. The practical reason, however, was the ease and speed with which the defendant's main asset, the ship, could leave the jurisdiction See Hale and Fleetwood at pp. xli-xlii.

15.

 Hale and Fleetwood at p. xliii.

16.

 Clerke, Titles 24, 30 and 31 (1722 Ed.); Titles 28 and 35 (1829 Ed.). See also Hale and Fleetwood, at p. xli. In the original Continental procedure, a second decree (secundum decretum) was needed in an actio in personam, in order to transfer ownership of the arrested property to the plaintiff after a period of time. In England, however, the second decree seems to have played little part in Admiralty practice and eventually ceased to appear in the case law, because the distinction between the actio in rem (or actio realis) and the actio in personam (or actio personalis) was not of great significance. Another distinction was that the Continental procedure granted possession of the res sought in an actio in rem, but only custody of the property up to the amount of the indebtedness in an actio in personam.

17.

 Hale and Fleetwood at p. xlii and xliii. The Admiralty Court in Tudor and Stuart days was aware of the Roman (i.e. civil) law distinction between actions in rem and in personam, as well as of the Roman actio hypothecaria, but these distinctions did not control the originating form of procedure, which could take the form of an action against the person, an action against his property or both. See Hale and Fleetwood, ibid. at pp. cxxx, cxxxiii and cxxxiv.

18.

Ibid. at p. cxxxiii.

19.

 R.G. Marsden, Select Pleas in the Court of Admiralty, vol. 1, Selden Society, vol. 6, London, 1892 at pp. lxxi-lxxii.: "Arrest of goods was quite as frequent as arrest of the ship, and it seems to have been immaterial what the goods were, so long as they were goods of the defendant and were within the admiral's jurisdiction at the time of arrest." (hereinafter cited as Select Pleas).

20.

 Clerke, Title 28 (1722 Ed.); Title 32 (1829 Ed.), cited in Hale and Fleetwood, at p. cxxxi, note 7.

21.

 Thorneton v. The Elizabeth Bonaventure and Jobson, owner (1565), reported in Marsden, Select Pleas, vol.2, Selden Society, vol. 11, London, 1897 at p. 131 (re mariners' wages); cited in Hale and Fleetwood at p. cxxxii, note 1.

22.

Clerke, Title 24 (1722 Ed.), Title 28 (1829 Ed.); cited by Hale and Fleetwood, ibid. at note 1. Clerke suggests that, if the defendant was out of the kingdom or had absconded, his goods or ship could be arrested in whosever hands they were. The debtor's absence was probably not intended as a condition of such arrest, however, but was probably mentioned to stress the utility and (at times) the necessity of arresting property in cases of such physical absence from the jurisdiction. Warrants of arrest from the period show clearly that ship and goods could be arrested even where the defendant was available personally. See R.G. Marsden, Select Pleas in the Court of Admiralty, vol. II, Selden Society, vol 11, London, 1897 at pp. 9-11, 79-80, 83-84, 88-89, 124-125, 197-198 (hereinafter cited as "Select Pleas"). See also Hale and Fleetwood at pp. cxxxiii-cxxxiv.

23.

 See, e.g., F. Wiswall, The Development of Admiralty Jurisdiction and Practice since 1800, Cambridge, 1970, 16 at p. 165; Tetley, M.LC. at pp. 974 and 1030.

24.

 R.G. Marsden, Select Pleas, vol. 1 at pp. lxxi-lxxii. See also Hale and Fleetwood at p. xlvi.

25.

 By contrast, the Continental procedure described in the Ordo Judiciorum required the arrested property to be described only in the case of an actio in rem (or actio realis), in which the plaintiff was claiming that he owned the arrested property. It was not necessary to identify the property in an actio in personam (or actio personalis), where the plaintiff sought merely to recover a debt owed him by the defendant. See Hale and Fleetwood at pp. xlii-xliii.

26.

 Ibid. at pp. xli and xliii. On the Continent, by comparison, the sentence on first decree in an actio personalis (to recover a debt) put the plaintiff in possession up to the amount of indebtedness, first of the defendant's movable property, if it sufficed to satisfy the claim, and, if not, then of his immovable property as well, with insolvency as a final recourse.

27.

 Hale and Fleetwood at p. xlvi.

28.

 The conflict between Admiralty and common law courts may be traced at least as far back as 1296. Formal restrictions on Admiralty jurisdiction to matters arising at sea and in tidal waters were imposed by the Admiralty Jurisdiction Acts, (1389) 13 Richard II, c. 5, (1391) 15 Richard II, c. 3 and (1400) 2 Henry IV, c. 11. See generally, Tetley, M.L.C. at pp. 32-33; R.G. Marsden, Select Pleas, vol. 1, Selden Society, vol. 6, London, 1892, Introduction; F. Wiswall, The Development of Admiralty Practice and Jurisprudence since 1800, Cambridge, 1970 at pp. 4-5.

29.

 Hale and Fleetwood at pp. xlvii, and lxxiii.

30.

 A classic example is Johnson v. Shippen (1703) 2 Ld Raym. 982 (K.B.), where the master had hypothecated part of the ship for nessaries supplied in Boston, Massachusetts. Sir John Holt, Chief Justice of King's Bench, issued prohibition to block the suit against the shipowners personally, while permitting it to proceed against the vessel. See also Clay v. Snelgrave (1700) 1 Ld Raym. 576 (K.B.); Hale and Fleetwood, at pp. xlvii, note 3 and lxiii-lxiv.

31.

 The number of in personam actions heard in the Admiralty Court dropped from 27 out of a total of 162 in 1683 to only 7 out of 61 in 1725. See Hale and Fleetwood, at p. cxxxv, note 1, citing statistics from the warrant books of the High Court of Admiralty, showing the breakdown as between the numbers of in rem and in personam suits heard in 1683, 1685, 1695, 1705, 1715 and 1725.

32.

 The writ in rem was the procedure by which the Admiralty Court survived during the oppression by the courts of common law. See Edward F. Ryan, "Admiralty Jurisdiction and the Maritime Lien: An Historical Perspective" (1968) 7 Western Ont. L. Rev. 173. See also The Indian Grace (No. 2) [1998] 1 Lloyd's Rep. 1 at p. 6 (H.L.): "Admiralty practitioners and Judges used the concept that the ship is a defendant in an action in rem, as a means of defending and extending the jurisdiction of the High Court of Admiralty" (per Lord Steyn). Another factor contributing to the abandonment of the Admiralty Court by English merchants may have been that the common law courts, particularly in such areas as bills of exchange, began after 1689 to be able to offer commercial litigants a better service than could the Admiralty Court. See D.R. Coquillette, The Civilian Writers of Doctors' Commons, London. Three Centuries of Juristic Innovation in Comparative Commercial and International Law, Berlin, 1988, cited by Hale and Fleetwood at p. cxxviii.

33.

 Browne, Civil Law, vol II, 72 at p. 100. See also The Clara (1855) Swabey 1 at p. 3, where Dr. Lushington stated that the last action in personam occurred in the 1780's. See also Hale and Fleetwood, at pp. cxxxiv-cxxxv, note 5; Tetley, M.L.C.at pp. 1029-1030.

34.

 Tetley, M.L.C. at p. 937 and 973-975.

35.

 3 & 4 Vict., c. 65 (U.K.).

36.

 24 & 25 Vict., c. 10 (U.K.).

37.

 On the history of Doctors' Commons and its eventual dissolution, see F. Wiswall, supra, note 28. See also G.D. Squbb, Doctors' Commons. A History of the College of Advocates and Doctors of Law, Clarendon Press, Oxford, 1977.

38.

 See Browne, Civil Law, vol. II at p. 435;Tetley, M.L.C. at pp. 1029 and 1032-1033.

39.

 (1885) 10 P.D. 44 at pp. 53-54 (C.A.).

40.

 See Tetley, M.L.C. at pp. 935-937, showing how neither the House of Lords in The Henrich Bjorn (1886) 11 App. Cas. 270 (H.L.), nor the Court of Appeal in The Beldis [1936] P. 51 at pp. 69-70 (C.A.), clearly contradicted Fry L.J.'s holding.

41.

  D.C. Jackson, Enforcement of Maritime Claims, 2 Ed., Lloyd's, London, 1996 at pp. 379-380 (herinafter cited as "Jackson"); C. Hill, Maritime Law, 4 Ed., Lloyd's, London, 1995 at p. 114 (hereinafter cited as "Hill"). The "personification theory" of the action in rem is more popular in the United States than in the United Kingdom. See Jackson, ibid. at p. 380. See also Tetley, M.L.C. at p. 53. See also The Indian Grace (No. 2) [1998] 1 Lloyd's Rep. 1 at pp. 6-7 (H.L.) where the decline in the personification theory, and the predominance of the "procedural theory" of the action in rem in England after the Judicature Acts of 1873-1875, is attributed to four factors: 1) the availability of the action in rem to enforce claims other than maritime lien claims; 2) the form of the writ in rem, which changed in 1883 so as to provide for the naming of the defendant shipowner; 3) the decision in The Dictator [1892] P. 304, holding that the appearance of the shipowner in the action in rem caused the action to proceed as a joint action in rem and action in personam; and 4) the hostility of common law judges to the concept of the ship as a person and thus to the personification theory, which had prevailed among the civilian judges of the former High Court of Admiralty. See Tetley, ibid. at pp. 1030 and 1036.

42.

 Hill, at pp. 113-114; N. Meeson, Admiralty Jurisdiction and Practice, Lloyd's, London, 1993 at p. 69 (hereinafter cited as "Meeson").

43.

  Older decisions held that the ship, rather than the shipowner, is the true defendant in an action in rem. See The Longford (1889) 14 P.D. 34 (C.A.); The Burns [1907] P. 137 at p. 149 (C.A.); The Johannis Vatis [1922] P. 213 at pp. 219-220; Hill, at pp. 125-126; Meeson, at pp. 64-66. In 1997, however, the House of Lords held that, at least for the purposes of sect. 34 of the Civil Jurisdiction and Judgments Act 1982, U.K. c. 27 (which prohibits suing again in England or Wales after a judgment has already been rendered by an overseas court on the same cause of action in a suit between the "same parties") a shipowner is the true defendant in an action in rem from the time the Admiralty Court is seized with jurisdiction (i.e. from the time the writ in rem is served or is deemed to be served as a result of the shipowner's acknowledgment of issue of the writ before service). See The Indian Grace (No. 2) [1998] 1 Lloyd's Rep. 1 at p. 10 (H.L.). See critical commentary by N. Teare, "The Admiralty action in rem and the House of Lords" [1998] LMCLQ 33. The decision is arguaby consistent, however, with the traditional view that the action in rem proceeds as a combined action in rem and action in personam from the time the defendant shipowner files an appearance. Lord Steyn noted that acknowledgment of issue of the writ is the "modern phraseology" for appearance by the defendant. See [1998] 1 Lloyd's Rep. 1 at p. 7.

44.

 U.K. 1981, c. 54. See relevant provisions reproduced in Tetley, M.L.C., Appendix "F" at pp. 1466-1473

45.

  Only the ship concerned may be arrested for a claim under sect. 20(2)(a), (c) or (s) (claims of ownership or possession; mortgage claims and forfeitures) and for questions under sect. 20(2)(b) arising between co-owners of the ship relating to its possession, employment or earnings. See Supreme Court Act 1981, sect. 21(2).

46.

 Hill, at p. 126.

47.

 Crown Proceedings Act 1947, 11 & 12 Geo. VI, c. 44, sect. 29(1); Supreme Court Act 1981, U.K. 1981, c. 54 sect. 24(2)(c). See also Jackson at pp. 261 and 326; Tetley, M.L.C. at p. 981 and Chap. 32 :State (Crown) Liability and Immunity at pp. 1187-1210, especially at pp. 1189-1193 (re. the U.K.).

48.

 State Immunity Act 1978, U.K. 1978, c. 33, at sects. 1(1), 3(1)(a) and (3) and 10(2). See also The I Congreso del Partido [1983] 1 A.C. 244 at pp. 262, 267, [1981] 2 Lloyd's Rep. 367 at pp. 373, 375 (H.L). See also Tetley, M.L.C. at p. 981 and Chap. 31: Foreign Sovereign Immunity at pp. 1159-1185, especiallly at pp. 1167-1172 (re the U.K.).

49.

 Supreme Court Act 1981 at sect. 20(7)(a) and (b).

50.

  SI 1965/1776 as amended. R.S.C. Order 6 and Order 12 also have some application to writs and actions in rem. See R.S.C. Order 75, rule 3(4). See generally The Supreme Court Practice: 1991, Vol. 1, eds. Jacob, Adams, Cholmondeley, Clarke et al., London, Sweet & Maxwell, 1990, at pp. 1212-1255, and the 4th cumul. suppl., 1992, at pp. 140-144.

51.

 See generally Tetley, M.L.C. at pp. 977-980.

52.

 R.S.C. Order 6, rule 8(1)(a). The court, for good reason, may, however, extend the time for service. See Tetley, M.L.C. at pp. 881-882 and decisions cited there.

53.

 As an alternative to service, the defendant may acknowledge the issue or service of the writ. See R.S.C. Order 75, rules 3(5), 3(6), and 8(2), referring to Order 10, rules 1(4) and (5).

54.

 R.S.C. Order 75, rule 4(3).

55.

 Traditionally, it was the appearance of the defendant in the action in rem which caused the action to proceed as a joint action in rem and action in personam. See The Dictator [1892] P. 304; The Gemma [1899] P. 285 (C.A.); The Dupleix [1912] P. 8; The Banco [1971] 1 Lloyd's Rep. 49 at pp. 51-52 (C.A.); The Nordglimt [1987] 2 Lloyd's Rep. 470 at p. 482; The Kherson [1992] 2 Lloyd's Rep. 261 at p. 267; Tetley, M.L.C. at pp. 1030 and 1036. If the defendant did not appear, the action proceeded in rem, but the eventual judgment was enforceable only against the arrested res or the substituted security. Under the House of Lords' 1997 decision in The Indian Grace (No. 2) [1998] 1 Lloyd's Rep. 1 at pp. 7 and 10, from the time the Admiralty Court is seized with jurisdiction over the action by either the service of the action in rem or its deemed service by the acknowledgment of issue of the writ before service (this acknowledgment being described by Lord Steyn as the "modern phraseology" for the shipowner's appearance in the action), the action in rem is an action against the shipowner. Presumably, however, absent service of the writ or the acknowledgment of its issue, the action in rem would still proceed as against the res or the substituted security and an eventual judgment in the claimant's favour would remain enforceable only against that property.

56.

 Tetley, M.L.C. at pp. 981, 1111; Meeson at p. 128; Hill at p. 141.

57.

 Tetley, M.L.C. at Chap. 29: Integrity of the Judicial Sale at pp. 1091-1119.

58.

 The Tremont (1841) 1 W. Rob. 163 at p. 164, 166 E.R. 534 at p. 534; Tetley, M.L.C. at pp. 1098-1101.

59.

 Ibid. at Chap. 24: Ranking, Equity and Laches at pp. 853-912, especially at pp. 883-890 (re U.K. ranking).

60.

 Arrest Convention 1952, art. 1(1).

61.

 U.K. 15 & 16 Geo. V, c. 49, sect. 22. See Berlingieri, Arrest of Ships at pp. 39-40. See also Gatoil International Inc. v. Arkwright-Boston Manufacturers Mutual Ins. Co. (The Sandrina) [1985] 1 Lloyd's Rep. 181 at p. 183 (H.L); The River Rima [1988] 2 Lloyd's Rep. 193 at p. 197 (H.L.). See also Tetley, M.L.C. at p. 958 note 96.

62.

U.K. 1981, c. 54.

63.

 The Ripon City [1897] P. 226 at p. 242 (per Gorell Barnes J.).

64.

 On the lex maritima and its origins in the medieval lex mercatoria, or "Law Merchant", see generally, Tetley, M.L.C. at pp. 7, 12-13, 22-23, 27-29, 55-56, 59 and 477. See also W. Tetley, "The General Maritime Law - The Lex Maritima" (1994) 20 Syracuse J. Int. L. & Comm. 105, reprinted in [1996] ETL 469; L.E. Trakman, "The Evolution of the Law Merchant: Our Commercial Heritage" (1980-81) 12 JMLC 1 (part I); (1980-81) 12 JMLC 153 (Part II); G.W. Paulsen, "An Historical Overview of the Development of Uniformity in International Maritime Law" (1983) 57 Tul. L. Rev. 1065.

65.

 The Ripon City [1897] P. 226 at p. 242 (per Gorell Barnes J.).

66.

 See Tetley, International Conflictof Laws. Common, Civil and Maritime, Les Éditions Yvon Blais, Montreal, 1994 at pp. 570--573 (hereinafter cited as "Tetley, International Conflict"), criticizing the decision of the Privy Council in Bankers Trust v. Todd Shipyards (The Halcyon Isle) [1981] A.C. 221, [1980] 2 Lloyd's Rep. 325, 1980 AMC 1221 (P.C.), which held that a maritime lien is merely a procedure, and not a substantive right, under U.K. law.

67.

 See generally Tetley, M.L.C. at pp. 59-60 (definition of maritime liens) and pp. 886-888 (ranking of maritime liens in the U.K.).

68.

 The Ripon City, supra, note 65. See also Tetley, M.L.C. at pp. 65 note 1, 460 note 15, 729, 894-895 and 1401. Jurisdiction to adjudge these claims is provided by the Supreme Court Act 1981, U.K. 1981, c. 54 at sects. 20(2)(j) (salvage), 20(2)(e) (damage) and (f) (loss of life, personal injury), 20(2)(o) (wages), 20(2)(p) (master's disbursements), and 20(2)(r) (bottomry).

69.

67 Tetley, M.L.C. at p. 558.

70.

68 Jurisdiction over statutory right in rem claims is provided by the Supreme Court Act 1981 at sects. 20(2)(g) (loss of or damage to goods carried in a ship); 20(2)(h) (agreements for the carriage of goods in a ship or the use or hire of a ship); 20(2)(k) (towage); 20(2)(l) (pilotage); 20(2)(m) (goods or materials supplied to a ship for her operation or maintenance); 20(2)(n) (construction, repair or equipment of a ship, dock charges or dues); and 20(2)(q) (general average).

71.

 Tetley, M.L.C. at pp. 978 and 1037-1038; Meeson at p. 109; Hill at p. 128. See also The Freccia del Nord [1989] 1 Lloyd's Rep. 388 at p. 391. The writ naming more than one ship must be amended to strike out the names of all the ships other than the one arrested. The one-ship restriction applies only within England and Wales, however. See The Kommunar (No. 2) [1997] 1 Lloyd's Rep. 8 at pp. 19-21.

72.

 The Monica S [1967] 2 Lloyd's Rep. 113, [1968] P. 741, [1968] 2 W.L.R. 431. See also Tetley, M.L.C. at pp. 557, 559, 888, 917, 1020, 1037, 1136, 1400.

73.

 See R.S.C. Order 75, rule 5((9)(b); The Kommunar [1997] 1 Lloyd's Rep. 8 at pp. 11-12; The Guiseppe di Vittorio [1998] 1 Lloyd's Rep. 136 at pp. 151-152 (C.A.), leave to appeal to House of Lords refused, ibid. at p. 161 (editorial note).

74.

 Tetley, M.L.C. at pp. 888-890, 1400-1401.

75.

 Ibid., Chap. 27: Sister Ship Arrest at pp. 1027-1047, especially at pp. 1032-1041 (re the U.K.).

76.

The I Congreso del Partido [1977] 1 Lloyd's Rep. 536 at p. 561, [1978] Q.B. 500 at p. 538. See also The Permina 3001 [1979] 1 Lloyd's Rep. 327 at p. 329 (Singapore C.A.), defining beneficial ownership of all the shares in the ship as the ownership of a person who has the right "to sell, dispose of or alienate all the share in that ship."

77.

 See The Aventicum [1978] 1 Lloyd's Rep. 184; The Saudi Prince [1982] 2 Lloyd's Rep. 255; The Tjaskemolen [1997] 2 Lloyd's Rep. 465 at pp. 468-471 and p. 474; but see also cases where no such sham has been found: The Maritime Trader [1981] 2 Lloyd's Rep. 152; The Neptune [1986] H.K.L.R. 345 (Hong Kong High Ct.); The Evpo Agnic [1988] 2 Lloyd's Rep. 411 (C.A.), leave to appeal denied [1989] 1 W.L.R. 127 (H.L); W. Tetley, M.L.C. at pp. 573-574 and 1039-1041; W. Tetley, International Conflict at pp. 41, 159 and 219-224. See also decisions involving state-owned corporations, such as The Nazym Khikmet [1996] 2 Lloyd's Rep. 362 (C.A.); The Kommunar [1997] 1 Lloyd's Rep. 8 at pp. 12-19; The Guiseppe di Vittorio [1998] 1 Lloyd's Rep. 136 at pp. 152-156 (C.A.), leave to appeal to House of Lords refused, ibid. at p. 161 (editorial note).

78.

 See, e.g., The Guiseppe di Vittorio, supra at pp. 156-159.

79.

 Mount Royal/Walsh Inc. v. The Jensen Star [1990] 1 F.C. 199, (1989) 99 N.R. 42 (Fed. C.A.), leave to appeal denied (1990) 105 N.R. 160n (Supr. Ct. of Can.); see also Tetley, M.L.C. at pp. 581-583.

80.

 Tetley, M.L.C. at pp. 571-572. See also The Yuta Bondarovskaya [1998] 2 Lloyd's Rep. 357 at p. 365, where the time charterer was found to have neither "implied actual authority" nor "apparent or ostensible authority" to make bunkering contracts on behalf of the demise charterer.

81.

 The U.K. courts nevertheless hold that although the action in rem "commences" with the issue of the writ, the Admiralty Court's in rem jurisdiction is only fully "invoked" when the writ is served or when the ship is arrested, whichever happens first. See The Freccia del Nord[1989] 1 Lloyd's Rep. 388 at p. 392; The Banco [1971] 1 Lloyd's Rep. 49 at pp. 53 and 57, [1971] P. 137 at p 153 and 158 (C.A.); The Berny [1977] 2 Lloyd's Rep. 533 at p. 543, [1979] Q.B. 80 at p. 99; Tetley, M.L.C. at p. 917; Meeson at p. 117; Jackson at p. 197. The House of Lords has held that the jurisdiction is invoked when the writ is served or where it is "deemed to be served" as a result of the acnowledgment of issue of the writ before service. See The Indian Grace (No. 2) [1998] 1 Lloyd's Rep. 1 at p. 10 (H.L.).

82.

 See also Meeson at p. 111; Jackson at pp. 197 and 430; Hill at p. 146.

83.

 See Tetley, M.L.C. at p. 559-560, 1038.

84.

 Ibid. at pp. 560-562.

85.

 Adopted at Brussels, September 27, 1968 and in force as of February 1, 1973. See O.J.E.C. 1978 L 304/77. The Convention provides uniform rules on jurisdiction and the recognition and enforcement of civil and commercial judgments as between member-State of the European Union. The U.K. gave effect to the Brussels Convention 1968 by the Civil Jurisdiction and Judgments Act 1982, U.K. 1982, c. 27. See generally Tetley, International Conflict at pp. 805-808 and 848-856.

86.

 Adopted at Lugano, September 16, 1988 (O.J.E.C. L 391/9). This Convention provides uniform rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters as between courts of member-States of the European Union and those of the European Free Trade Association (EFTA). It has the force of law in the U.K. by virtue of the Civil Jurisdiction and Judgments Act 1991, U.K. 1991, c. 12. See generally Tetley, International Conflict at pp. 809 and 856-858.

87.

 See, e.g., The Deichland [1990] 1 Q.B. 361 at p. 365, [1989] 2 Lloyd's Rep. 113 at p. 126 (C.A.); see also Tetley, M.L.C. at p. 561; International Conflict at p. 810.

88.

 The Deichland, ibid.; The Prinsengracht [1993] 1 Lloyd's Rep. 41 at pp. 45 and 46; The Anna H [1995] 1 Lloyd's Rep. 11 (C.A.).; Tetley, M.L.C. at p. 889; Hill at pp. 152-159.

89.

 The Christiansborg (1885) 10 P.D. 141 at pp. 155-156 (C.A.); Meeson at pp. 129-130; Tetley, M.L.C. at pp. 981 and 1112. Rearrest may be pemissible in exceptional circumstances, however, such as a mistake in the amount of the bail requested or insolvency of the security. See The Tjaskemolen (No. 2) [1997] 2 Lloyd's Rep. 476 at p. 479 and decisions cited there.

90.

 The Tribels [1985] 1 Lloyd's Rep. 128 at p. 130; The Moschanthy [1971] 1 Lloyd's Rep. 37 at p. 44; Tetley, M.L.C. at p. 1116. See also The Tjaskemolen [1997] 2 Loyd's Rep. 465 at p. 474.

91.

 See The Tjaskemolen(No. 2) [1997] 2 Lloyd's Rep. 476 at p. 484.

92.

 See the Australian Admiralty Act 1988, No. 34 of 1988, at sect. 34(1)(a)(i); see also Tetley, M.L.C. at p. 1064.

93.

 The Evangelismos (1858) Swab. 378, 166 E.R. 1174 (summ.), 12 Moo. P.C. 352 at pp. 359-360, 14 E.R. 95\45 at p. 948; see also Tetley, M.L.C. at pp. 1065-1070 and many decisions cited there, including The Kommunar (No.3) [1997] 1 Lloyd's Rep. 22 at pp. 28-32. See also the Australian Admiralty Act 1988, supra, which expressly permits an award of damages for wrongful arrest at sect. 34(1)(a)(ii), as well as for failing to consent to release from arrest of the ship or other property without good cause (sect. 34(b)).

94.

 See, e.g., The Eudora (1879) 4 P.D. 208.

95.

 Jackson's first edition of The Enforcement of Maritime Claims, 1985 at p. 157 referred to the constitutional question surrounding seizure of property without hearing in the U.S., but he made no reference to the U.K., and even the U.S. reference appears to have been dropped from the second edition of 1996.

96.

R.S.C. Order 75, rule 6(1).

97.

 R.S.C. Order 75, rule 7.

98.

 R.S.C. Order 75, rule 5(5).

99.

 R.S.C. Order 75, rule 5(7).

100.

 See The Supreme Court Practice, 1993, vol. 2 at p. 361, reproduced in Meeson, Appendix 2 at p. 496; see also generally Tetley, M.L.C. at pp. 981-982.

101.

 On the British tradition in Canadian maritime law, see T.L. McDorman, "the History of Shipping Law in Canada: The British Dominance" (1987) 7 Dal. L.J. 620; F.R. Scott, "Admiralty Jurisdiction and Canadian Courts" (1928) 10 Can. Bar Rev. 779.

102.

 ITO - International Terminal Operators v. Miida Electronics Inc. (The Buenos Aires Maru) [1986] 1 S.C.R. 752.

103.

 On the history of Canadian maritime law and its two main "limbs", as well as of Canadian maritime jurisdiction, see generally Tetley, M.L.C. at pp. 41-53; Tetley, "A Definition of Canadian Maritime Law" (1996) 30 U.B.C.L. Rev. 137.

104.

 In Chartwell Shipping Ltd.. v. Q.N.S Paper Co. Ltd. [1989] 2 S.C.R. 683 at pp. 700-749, however, L'Heureux-Dubé J. clearly recognized that civil law principles, applied by the former High Court of Admiralty in England, also form an integral part of Canadian maritime law.

105.

 The true date of reception of English Admiralty law into Canadian law, however, is arguably 1891, when Canada adopted The Admiralty Act, 1891, 54 & 55 Vict., c. 29 (Canada), giving effect to the U.K.'s Colonial Courts of Admiralty Act, 1890, 53 & 54 Vict., c. 27 (U.K.), rather than 1934, when Canada adopted its Admiralty Act, 1934, 24 & 25 Geo. V, c. 31. See Tetley, "A Definition of Canadian Maritime Law", supra at pp. 148-149; Tetley, M.L.C. at p. 48.

106.

 The Buenos Aires Maru [1986] 1 S.C.R. 752 at pp. 771, 776 and 779.

107.

 Ibid. at p. 774.

108.

 Ibid. See also Monk Corporation v. Island Fertilizers Ltd. [1991] 1 S.C.R. 779 at pp. 800-801.

109.

 Formerly known as the British North America Act, (1867) 30 & 31 Vict., c. 3 (U.K.), and renamed the "Constitution Act, 1867" pursuant to the Canada Act 1982, U.K. 1982, c. 11. The Constitution Act, 1867 is now cited as R.S.C. 1985, Appendix II, No. 5.

110.

 The Buenos Aires Maru [1986] 1 S.C.R. 752 at p. 774. See also Monk Corporation v. Island Fertilizers Ltd. [1991] 1 S.C.R. 779 at pp. 797 and 800; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210 at pp. 1257-1258; Pakistan National Shipping Corp. v. Canada [1997] 3 F.C. 601 at pp. 616 and 624 (Fed. C.A.); Ferguson v. Arctic Transportation Ltd. (1997) 135 F.T.R. 243 at pp. 251-252 (Fed. Ct. of Can.); Bornstein Seafoods Canada Ltd. v. Hutcheon (1997) 140 F.T.R. 241 at p. 251 (Fed. Ct. of Can.); Corcovado Yacht Charters Ltd. v. Foreshore Projects Ltd. (1998) 144 F.T.R. 126 at pp. 130-133 (Fed. Ct. of Can.).

111.

 R.S.C. 1985, c. F-7 sect. 2(1): "'Canadian maritime law' means the law that was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act, chapter A-1 of the Revised Statutes of Canada, 1970, or any other statute, or that would have been so administered if that Court had had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this or any other Act of Parliament;".

112.

 The Buenos Aires Maru [1986] 1 S.C.R. 752 at p. 766. See also Tetley, M.L.C. at pp. 46-47.

113.

 Supra, note 109.

114.

 U.K. 1981, c. 54, sects. 20(2)(a) to (s).

115.

 See, e.g., Robert Simpson Montreal Ltd. v. Hamburg-Amerika Linie Norddeutscher [1973] F.C. 1356 at p. 1367 (Fed. C.A.); Kuhr v. The Friedrich Busse [1982] 2 F.C. 709 at pp. 716 and 717 (Fed. Ct. of Can.); Balodis v. The Prince George [1985] 1 F.C. 890 at p. 896 (Fed. Ct. of Can.), where Collier J. held that: "...as specifically stated in the opening words of subsection 22(2), the enumeration of illustrative jurisdictional claims does not exclude, or inhibit, the general jurisdiction given by subsection 22(1) and the definition in section 2." See also Ferguson v. Arctic Transportation Ltd. (1997) 135 F.T.R. 243 at p. 250 (Fed. Ct. of Can.).

116.

 R.S.C. 1985, c. F-7. See also Federal Court Rules, 1998, SOR 98/106, in force April 25, 1998 at Rule 477(1): "Admiralty actions may be in rem or in personam, or both".

117.

 Federal Court Act, sect. 22(3)(a) and (c). See also Tropwood A.G. v. Sivaco Wire & Nail Co. [1979] 2 S.C.R. 157 at p. 161; Ferguson v. Arctic Transportation Ltd. (1997) 135 F.T.R. 243 at pp. 250-251 and 253 (Fed. Ct. of Can.). The jurisdiction conferred by sect. 22(3)(a) and (c) does not extend to foreigners generally, however. See Oy Nokia AB v. The Martha Russ [1973] F.C. 394 at p. 402 (Fed. Ct. of Can.), upheld [1974] 1 F.C. 410 (Fed. C.A.).

118.

 R.S.C. 1985, c. C-50, sects. 2 (definition of "Crown ship") and 14 (prohibiting in rem enforcement). See also the definitions of "government ship" and "ships belonging to Her Majesty" at sect. 2 of the Canada Shipping Act, R.S.C. 1985, c. S-9.

119.

 R.S.C. 1985, c. F-7, sect. 43(7)(a) and (b). See generally Tetley, M.L.C., Chap. 32: State (Crown) Liability and Immunity at pp. 1187-1210, especially at pp. 1193-1198 (re Canada).

120.

 R.S.C. 1985, c. S-18, sects. 2 and 7. See generally Tetley, M.L.C., Chap. 31: Foreign Sovereign Immunity at pp. 1159-1186, especially at pp. 1180-1184 (re Canada). See also Sarafi . v. The Iran Afzal [1996] 2 F.C. 954 at p. 964 (Fed. Ct. of Can.).

121.

 R.S.C. 1985, c. F-7, sect. 43(7)(c).

122.

 Ibid., sect. 22(2)(a), read with sect. 43(2).

123.

 Ibid., sect. 22(2)(b), read with sect. 43(2).

124.

 Ibid., sect. 22(2)(c), read with sect. 43(2).

125.

 Jurisdiction to adjudge these claims is provided by the Federal Court Act, R.S.C. 1985, c. F-7 at sect. 22(2)(j) (salvage); 22(2)(e) and (g) (damage and loss of life/personal injury); 22(2)(o) (wages); 22(2)(p) (master's disbursements); 22(2)(c) (bottomry and respondentia).

126.

 Jurisdiction to adjudge these claims is provided by the Federal Court Act at sect. 22(2)(f), (h) and (i) (carriage of goods); 22(2)(i) (charterparties); 22(2)(k) (towage); 22(2)(m) (goods, materials or services supplied to a ship); 22(2)(n) (construction, repair and equipping of a ship).

127.

 See the Federal Court Act, sect. 22(2) read with sect. 43(2) and (3).

128.

 Wording reflecting sect. 20(2)(m) of the U.K.'s Supreme Court Act 1981, U.K. 1981, c. 54.

129.

 On the broad scope of the Canadian understanding of "necessaries", see Tetley, M.L.C. at pp. 578-580.

130.

Ibid. at pp. 575-576, 680-681.

131.

 Federal Court Act, sect. 22(2)(r), read with sect. 43(3).

132.

 Ibid. at p. 837.

133.

 See the Federal Court Act at sects. 43(2) and (3) read together, and with sects. 22(2)(l), (q) and (s).

134.

 Federal Court Act, sect. 22(2)(s); see also Tetley, M.L.C. at p. 94. Such claims may also give rise to "special legislative rights" of seizure, detention and (sometimes) of sale of the ship. See ibid. at Chap. 3: Dock, Harbour and Canal Charges, at pp. 73-99, especially at pp. 94-98 (re Canada).

135.

 Federal Court Act, sect. 22(2)(l). see also Tetley, M.L.C.. at pp. 457-458. Certain Canadian decisions have even held that there is a full maritime lien for pilotage in Canada, although the most recent ruling on the question, Östgöta Enskilda Bank v. Starway Shipping Ltd. (1994) 73 F.T.R. 304 at p. 306 (Fed. Ct. of Can.), is inconclusive. See ibid. at pp. 462-464.

136.

 Federal Court Act, sect. 22(2)(q); see also Tetley, M.L.C.. at pp. 452.

137.

 The Federal Court Rules, 1998, SOR 98/106, came into force on April 25, 1998 and replace the former Federal Court Rules, C.R.C. 1978, c. 663 as amended. Particular provisions on "Admiralty Actions" are found in Part 13, comprising Rules 475 to 500 inclusive.

138.

 Federal Court Rules, 1998, Rule 482(1). Note, however, that the Federal Court of Canada is not bound by the strict rules of English Admiralty practice. See Elders Grain Co. v. The Ralph Misener (1997) 125 F.T.R. 209, 1997 AMC 1329 (Fed. Ct. of Can.), where service of the statement of claim in an action in rem on the master aboard the ship (rather than by posting the statement on the mast or some other conspicuous part of the vessel, as would have been required in England) was upheld as valid.

139.

 Federal Court Rules, 1998, Rules 479(1)(a), 481 and 482(1). Alternate service on a person who appears to be in charge of the property is permissible, under Rule 479(2), if access cannot be obtained to the property in question. See, e.g., 458093 B.C. Ltd. v. Hills (1998) 144 F.T.R. 236, 1998 AMC 2071 (Fed. Ct. of Can.), decided under the former, but similar, Rule 1002(6), where "substitutional service" on the vessel owner was authorized because the vessel was occupied by the owner's aggressive Rottweiler.

140.

 Arrest does not vest possession or responsibility for the property in the sheriff; it remains vested in the person in possession immediately before the arrest. See Federal Court Rules, 1998, Rule 483(1).

141.

 Federal Court Rules, 1998, Rule 203(1). The former Rule 306 provided for service within 12 months from filing.

142.

 See the Federal Court Rules, 1998, Rules 485-489 for the specific procedures.

143.

 See the Federal Court Rules, 1998, Rules 490 for the specific procedures.

144.

 See the Federal Court Rules, 1998, Rule 490(3).

145.

 See Tetley, M.L.C., Chap. 24: Ranking, Equity and Laches, at pp. 853-912, especially at pp. 890-897 (re Canada). See also Scott Steel Ltd. v. The Alarissa [1996] 2 F.C. 883 at pp. 893-894 (re usual ranking) and at pp. 896-899-901 (re "special circumstances to change the ranking", i.e. equity) (Fed. Ct. of Can. per Hargrave, Prothonotary), upheld (1997) 125 F.R.R. 284 (Fed. Ct. of Can. per Lutfy J.).).

146.

 See supra, discussion surrounding notes 83 to 90.

147.

 Tetley, M.L.C. at pp. 557-558, 577-578 and 1037.

148.

 The claims are those contemplated by sect. 22(2)(e), (f), (g), (h), (i), (k), (m), (n), (p) or (r).

149.

 See, e.g., Fibreco Pulp v. Star Shipping A/S (1998) 145 F.T.R. 125 at p. 137 (Fed. Ct. of Can.).

150.

 Compare sect 21(4)(b) of the U.K. Supreme Court Act 1981, U.K. 1981, c. 54, with sect. 43(3) of Canada's Federal Court Act.

151.

 See ibid. at p. 583 note 149 and decisions cited there. See also Pegasus Lines Ltd. S.A. v. Devil Shipping Ltd. (1996) 120 F.T.R. 241 at pp. 253-256.

152.

 Mount Royal/Walsh Inc. v. The Jensen Star [1990] 1 F.C. 199 at p. 210 (Fed. Ca.), leave to appeal denied (1990) 105 N.R. 160n (Supr. Ct. of Can.).

153.

 Ibid. [1990] 1 F.C. at p. 209. See also Pegasus Lines Ltd. S.A. v. Devil Shipping Ltd. (1996) 120 F.T.R. 241 at p. 256 (Fed. Ct. of Can.).

154.

 Tetley, M.L.C. at pp. 581-582.

155.

 Ssangyong Australia Pty. Ltd. v.The Looiersgracht (1995) 85 F.T.R. 265, [1995] 2 Lloyd's Rep. 411 (Fed. Ct. of Can.).

156.

 See, e.g, Med Coast Shipping v. Cuba 1993 AMC 2530 (Québec Supr. Ct.); The Looiersgracht (1995) 85 F.T.R. 265 at p. 269 (Fed. Ct. of Can.); Pegasus Lines Ltd. S.A. v. Devil Shipping Ltd. (1996) 120 F.T.R. 241 at pp. 265-266 (Fed. Ct. of Can.); Fibreco Pulp v. Star Shipping A/S (1998) 145 F.T.R. 125 at pp. 136-137 (Fed. Ct. of Can.); see also Tetley, M.L.C. at pp. 586 and 1044.

157.

 Supreme Court Act 1981, U.K. 1981, c. 54, sect. 21(4)(b)(i).

158.

 Federal Court Act, R.S.C. 1985, c. F-7, sect. 43(3). See also Mount Royal/Walsh Inc. v. The Jensen Star [1990] 1 F.C. 199 at p. 209 (Fed. C.A.), citing The I Congreso del Partido [1977] 1 Lloyd's Rep. 536 at p. 560, [1978] Q.B. 500 at p. 538; The Permina 3001 [1979] 1 Lloyd's Rep. 327 (Singapore C.A.). See also Pegasus Lines Ltd. S.A. v. Devil Shipping Ltd. (1996) 120 F.T.R. 241 at p. 256 (Fed. Ct. of Can.), citing Mount Royal/Walsh Inc.

159.

 Tetley, M.L.C. at pp. 583 and 1043. See also Viktor Overseas Ltd. v. Deiulemar Compagnia Di Navigazione S.p.A. (1997) 138 F.T.R. 316, [1998] ETL 380 (Fed. Ct. of Can.), where an arrest in rem for ship repairs was upheld, on the grounds that the terms of the contract and the demise charterer's signature of it, on behalf of the shipowner, indicated that the charterer was acting as the owner's agent.

160.

 R.S.C. 1985, c. F-7, sect. 43(8), added by S.C. 1990, c. 8, sect. 12, in force February 1, 1992. The specific rules governing sister ship arrest in Canada are not overly rigorous. See Elecnor S.A. v. The Soren Toubro [1996] 3 F.C. 422 (Fed. Ct. of Can.) (no need to name any or all sister ships in the statement of claim or to arrest the first one to enter the jurisdiction).

161.

A ship owned by the parent corporation of the company which owns the "offending ship" is not a sister vessel of the "offending ship", because "owner" under sect. 43(8) means "registered owner". See Hollandsche Aannaming Maatschappij, b.v. v. The Ryan Leet (1997) 135 F.T.R. 67 at p. 69 (Fed. Ct. of Can.).

162.

 Noranda Sales Corp v. The British Tay (1994) 77 F.T.R. 8 (Fed. Ct. of Can.).

163.

 For a comparison of U.K. and Canadian law on sister ship arrest, see Tetley, M.L.C. at pp. 1041-1042.

164.

 Taiyo Gyogyo K.K. v. The Tuo Hai (1992) 48 F.T.R. 59 (Fed. Ct. of Can.); Argosy Seafoods Ltd. v. Atlantic Bounty (1992) 45 F.T.R. 114 at p. 120 (Fed. Ct. of Can.); Atlantic Shipping (London) Ltd. v. The Captain Forever (1995) 97 F.T.R. 32 at p. 34 (Fed. Ct. of Can.); Amican Navigation Inc. v. Densan Shipping Co. (1997) 143 F.T.R. 284 at p. 290 (Fed. Ct. of Can. per Morneau, Prothonotary), modified on other grounds, (1997) 137 F.T.R. 132 (Fed. Ct. of Can. per Lutfy J.). See also Tetley, M.L.C. at p. 1000.

165.

 N.M. Paterson & Sons Ltd. v. The Birchglen [1990] 3 F.C. 301 at pp. 306-307 (Fed. Ct. of Can.); Freighters (Steamship) Agents) Co. v. The Number Four.[1983] 1 F.C. 852 (Fed. C.A.).

166.

 See Federal Court Rules, 1998 at Rule 416(1)(a) to (h). See also Ferguson v. Arctic Transportation Ltd. (1996) 118 F.T.R. 154 (Fed. Ct. of Can.), decided under former Rule 446(1)(a) on security for costs. Such security is given by a payment into court or the filing of a bond. See Rule 418 of the 1998 Rules.

167.

 Armada Lines Ltd. v.Chaleur Fertilizers Ltd. [1997] 2 S.C.R. 617 at pp. 627-628. See also note by R. Margolis [1998] LMCLQ 11; Tetley, M.L.C. at pp. 1058-1062 and other decisions cited there.

168.

 S.C. (1960) 8 & 9 Eliz. II, c.44, sect. 1(a).

169.

 Tetley, M.L.C. at p. 1007.

170.

 Curr v. The Queen [1972] S.C.R. 889 at p. 916; Regina .v. Appleby No. 2 (1977) 76 D.L.R. (3d) 110 at p. 118 (New Brunswick Supr. Ct. App. Div.) and other decisions cited by Tetley, ibid. at pp. 1008-1011,

171.

 Part I of the Constitution Act 1982, which is itself Schedule B to the Canada Act 1982, U.K. 1982, c. 11, by which the Canadian Constitution was "repatriated" from England. See R.S.C. 1985, Appendix II, No. 44.

172.

 Various Charter provisions were invoked to challenge the seizure and confiscation of a tug for suspected drug offences in Paquette v. European Marine Transporters [1993] R.D.J. 108 (Québec C.A.), but the suit was dismissed on jurisdictional grounds. See generally Tetley, M.L.C. at p. 1015. In Jose Pereira E Hijos, S.A. v. Canada [1997] 2 F.C. 84 at pp. 108-109 (Fed. Ct. of Can.), sect. 8 of the Charter was invoked to challenge the "arrest" by Canadian authorities of a Spanish fishing vessel on the High Seas for fisheries offences under Canadian law during the 1995 "turbot war" between Canada and Spain, but the Court held that the claim as stated related to the perceived discriminatory treatment by Canada of Spanish and Portuguese fishing vessels, and as such was concerned with equality rights under sect. 15 of the Charter, rather than with unreasonable search and seizure under sect. 8.

173.

 See, e.g., Jose Pereira E Hijos, S.A., supra, [1996] 2 F.C. at p. 108, where counsel for both parties agreed that the the corporate plaintiff could not claim rights under sect. 7 of the Charter, which guarantees the right to "life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". The Court held (at p. 111) that sect. 15 of the Charter, concerning equality before the law, was inapplicable to corporations, and therefore could not be invoked by the corporate vessel owner.

174.

 See generally Tetley, M.L.C. at pp. 1011-1016.

175.

 Certain case law of the Supreme Court of Canada now holds that "Charter values", as well as its rules, may be appealed to. See, for example, R. v. Salituro [1991] 3 S.C.R. 654 at p. 675; C.B.C. v. Dagenais [1994] 3 S.C.R. 835 at pp. 876, 878. These "values" might lend support to any eventual Charter challenge of the validity of an arrest in rem.

176.

 Federal Court Rules, 1998, Rule 493(1) and Form 493A.

177.

 Federal Court Rules, 1998, Rule 494(1).

178.

 28 U.S. Code Appx.

179.

 The attachment also exists under the "general maritime law" of the U.S., even if the prerequisites of Rule "B" are not fulfilled. See Schiffaharts Leonhardt v. A. Bottacchi S.A. de Navegacion 773 F.2d 1528, 1986 AMC 1 (11 Cir. 1985).

180.

 Tetley, M.L.C. at p. 938.

181.

 See Tetley, "The General Maritime Law - The Lex Maritima" (1994) 20 Syracuse J. Int'l. L. & Comm. 105 at pp. 121-128.

182.

 Act of November 23, 1988, Public Law no. 100-710, 102 Stat. 4735, 46 U.S. Code, Chap. 313 , sects. 30101, 31301-31309, 31321-31330 and 31341-31343, in force January 1, 1989. See text reproduced in Tetley, M.L.C., Appendix "E" at pp. 1449-1465. This statute is sometimes also called the "Maritime Commercial Instruments and Liens Act" or, using older titles, the "Federal Maritime Liens Act" or the "Ship Mortgage Act of 1920 as amended". See also Tetley, M.L.C. at pp. 40-41. The Act supersedes any U.S. state statutes purporting to create maritime liens enforceable by civil actions in rem. See 46 U.S. Code sect. 31307. See also Silva v. M/V First Lady 1998 AMC 1649 at p. 1651 (S.D. Cal. 1998.

183.

 See, e.g., Heidmar v. Anon. Ravennate 993 F.Supp. 990 at p. 994, 1998 AMC 47 at p. 50 (S.D. Tex. 1997), citing Trinidad Foundry & Fabricating Ltd. v. M/V K.A.S. Camilla 966 F.2d 613 at p. 615, 1992 AMC 2636 at p. 2638 (11 Cir. 1992); Garcia v. M/V Kubbar 4 F.Supp.2d 99 at p. 103, 1998 AMC 893 at p. 896 (N.D. N.Y. 1998). Long before their codification in the former Federal Maritime Liens Act, maritime liens were recognized and enforced as substantive rights in America. See, for example, The Bird of Paradise 72 U.S. (5 Wall.) 545 at p. 555 (1866) (maritime lien on cargo); The Nestor 18 Fed. Cas. 9, Case No. 10,126 (C.C.D. Me. 1831); The Rebecca 20 Fed. Cas. 373, Case No. 11,619 (D. Me. 1831); The Young Mechanic 30 Fed. Cas. 873, Case No. 18,180 (C.C.D. Me. 1855) (maritime lien on ship); see also Gilmore and Black, The Law of Admiralty, 2 Ed., Foundation Press, Mineola, N.Y., 1975 at Chap. IX.

184.

 46 U.S. Code sect. 31326(b).

185.

 On the "personification" and "procedural" theories of maritime liens, see Tetley, M.L.C. at pp. 53-55. See also Boston Bermuda Cruising, Ltd. v. M/V Royal Majesty 1998 AMC 1179 at p. 1182 (D. Mass. 1997): "The theoretical basis of the lien rests on the fiction that the ship is the actual wrongdoer and thus should be held liable for the alleged loss."

186.

 Tetley, M.L.C. at pp. 588-589 and examples at pp. 592-594. The U.S., for example, was quick to recognize a maritime lien for container leasing. See Tetley, M.L.C. at pp. 609-613.

187.

 46 U.S. Code sects. 31301(5) and 31326(b)(1). See also Calogeras Marine, Inc. v. M/V Ocean Leader 1998 AMC 872 at p. 875 (E.D. La. 1997).

188.

 Ibid. sect. 31301(5)(D). Maintenance and cure claims are included under this heading.

189.

 Ibid. sect. 31301(5)(F).

190.

 Ibid. sect. 31301(5)(B). Included in this category would be personal injury and death claims, property damage claims and cargo tort liens.

191.

 Ibid. sects. 31301(5)(C) and 31341.

192.

 Contract maritime liens secure claims for "necessaries", including, for example, supplies, repairs, towage, the use of a dry dock or marine railway, pilotage, stevedoring, cargo damage liens in contract and contract charterers' liens. See 46 U.S. Code sect. 31301(4) and Tetley, M.L.C. at pp. 874-875. American maritime law is also very generous in the claims it accepts as "necessaries". See, e.g., Cummins Financial, Inc. v. The Rose of Rock River 771 F.Supp. 234, 1994 AMC 1519 (N.D. Ill. 1991), where overland transportation of a vessel was held to be "necessary" giving rise to a maritime lien for the transport costs. The U.S., to its credit, also led the world in recognizing claims for container leasing as legitimate claims for necessaries, although such claims give rise to maritime liens only where the containers are earmarked for, or delivered to, a ship, and loaded aboard. See Tetley, M.L.C. at pp. 609-613, especially at p. 611. See also Silver Star v.Saramacca 82 F.3d 666, 1996 AMC 1715 (5 Cir. 1996).

193.

 Ibid. sect. 31301(5)(A). "Preferred ship mortgages" are primarily mortgages on U.S. documented vessels, duly executed and filed under 46 U.S. Code sects. 31321 and 31322, although foreign ship mortgages and hypothecations, duly executed and registered outside the U.S., also qualify as preferred ship mortgages (see 46 U.S. Code sect. 31301(6)(A) and (B)). See also Calogeras Marine, Inc. v. M/V Ocean Leader 1998 AMC 872 at p. 874 (E.D. La. 1997).

194.

 See Tetley, M.L.C. at pp. 874-875; International Conflict at p. 540. Note, however, that if they are guaranteed under title XI of the Merchant Marine Act, 1936, 46 U.S. Code Appx. sect. 1101 at sect. 1271 et seq., foreign preferred ship mortgages enjoy the same ranking as U.S. preferred ship mortgages. See Tetley, M.L.C. at pp. 514 and 874.

195.

 46 U.S. Code sect. 31326(b)(2).; Tetley, M.L.C. at pp. 874-875; International Conflict, at p. 540.

196.

 46 U.S. Code sect. 31342(a)(3). Where the necessaries claim relates to the supply of containers, however, it is necessary to prove that the containers were earmarked for or delivered to specific ships and loaded aboard them. See Tetley, M.L.C. at pp. 610-612.

197.

 See Tetley, M.L.C. at pp.598-600 and 604-606. This important provision dates from 1971, when it was added to the former U.S. Maritime Liens Act.

198.

 Tetley, M.L.C. at pp. 566, 570, and 572.

199.

 Ibid. at p. 590.

200.

 Ibid. at pp. 596 and 613. The "executory contract doctrine", precluding liens for unexecuted contracts, also applies in the U.S. to contract maritime liens for seamen's wages (see ibid. at p. 298), cargo damage (see ibid.at p. 722), breach of charterparty (see ibid. at pp. 726-727). See also E.A.S.T., Inc. v. M/V Alaia 876 F.2d 1168 at p. 1174, 1989 AMC 2024 at p. 2033 (5 Cir. 1989); Navieros Inter-Americanos, S.A. v. M/V Vasilia Express 120 F.3d 304 at pp. 313-314, 1997 AMC 2845 at pp. 2856-2857 (1 Cir. 1997); Boston Bermuda Cruising, Ltd. v. M/V Royal Majesty 1998 AMC 1179 at pp. 1182-1184 (D. Mass. 1997).

201.

 46 U.S. Code sect. 31341(a); see also Tetley, M.L.C. at pp. 600-603. See also Integral Control Systems v. Con. Edison 990 F.Supp. 295 at p. 298, 1998 AMC 1905 at pp. 1908-1909 (S.D. N.Y. 1998).

202.

 46 U.S. Code sect. 31325(a) and (b)(1) (re the preferred mortgage lien); sect. 31301(5) and 31326(b)(1) (re preferred maritime liens) and sect. 31342(a)(1) and (2) (re maritime liens for necessaries). See also Supplemental Rule C(1)(a), permitting an action in rem to enforce any maritime lien.

203.

 46 U.S. Code sects. 30101(3) and 31342(b).

204.

 46 U.S. Code Appx. sect. 788 et seq.

205.

 46 U.S. Code Appx. sect. 742 et seq. See also Tetley, M.L.C. at pp. 597-598 and 943 and generally at Chap. 32 "State (Crown) Liability and Immunity at pp. 1187-1210, especially at pp. 1199-1205 (re the U.S.).

206.

 28 U.S. Code sects. 1330, 1332(a), 1391(f), 1441(d) and 1601-1611, especially at sect. 1610(d).

207.

 28 U.S. Code sects. 1604, 1605(a)(2) and 1605(b). See generally, Tetley, M.L.C., at p. 943 and Chap. 31: Foreign Sovereign Immunity at pp. 1159-1186, especially at pp. 1172-1180 (re the U.S.). See, e.g., Coastal Cargo Co. v. M/VGusav Sule 942 F.Supp. 1082 at pp. 1084-1087, 1997 AMC 193 at pp. 196-201 (E.D. La. 1996).

208.

 28 U.S. Code sect. 1610(e). See also sect. 1610(d)(1) and (2) re waiver of immunity.

209.

 See, e.g., Rainbow Line, Inc. v. M/V Tequila 480 F.2d 1024 at p. 1028, 1973 AMC 1431 at p. 1436 (2 Cir. 1973); Sembawang Shipyard, Ltd. v. Charger, Inc. and M/V Charger 955 F.2d 983 at p. 987, 1993 AMC 1341 at p. 1345 (5 Cir. 1992), rehearing denied, 963 F.2d 372 (5 Cir. 1992); Navieros Inter-Americanos v. M/V Vasilia Express 120 F.3d 304 at p. 313, 1997 AMC 2845 at p. 2856 (1 Cir. 1997); Garcia v. M/V Kubbar 4 F.Supp.2d 99 at p. 103, 1998 AMC 893 at p. 896 (N.D. N.Y. 1998). Supplemental Rule C(1) also authorizes an action in rem whenever a statute of the United States provides for a maritime action in rem. Rule C arrest is not available to enforce foreign statutory rights in rem, however. See Trinidad Foundry & Fabricating Ltd. v. M/V K.A.S. Camilla 962 F.2d 613 at pp. 616-617, 1992 AMC 2636 at pp. 2640-2641 (11 Cir. 1992); Heidmar v. Anon. Ravennate 993 F.Supp. 990 at p. 994, 1998 AMC 47 at p. 52 (S.D. Tex. 1997), vacated on other grounds, 132 F.3d 264, 1998 AMC 982 (5 Cir. 1998).

210.

 Republic National Bank of Miami v. United States 506 U.S. 80, 1993 AMC 2010 (1992).

211.

 Alyeska Pipeline Service Co. v. The Vessel Bay Ridge 703 F.2d 381 at p. 384, 1983 AMC 2719 at p. 2721 (9 Cir. 1983), cert. dismissed 467 U.S. 1247, 1984 AMC 2401 (1984).

212.

 See Supplemental Rule C(2) and (3); see also U.S. Department of Justice, Manual for United States Marshals, 1986, para. 6.3, reproduced in 1987 AMC 1041-1067.

213.

 Bay Casino, LLC., v. M/V Royal Empress 1998 AMC 2226 at p. 2233 (E.D. N.Y. 1998).

214.

 Treasure Salvors, Inc. v. The Unidentified, Wrecked & Abandoned Sailing Vessel 640 F.2d 560 at p. 566, 1981 AMC 1857 at p. 1864 (5 Cir. 1981); Moyer v. The Wrecked & Abandoned Vessel known as The Andrea Doria 836 F.Supp. 1099 at p. 1104, 1994 AMC 1021 at pp. 1025-1026; Marex International, Inc. v. The Unidentified, Wrecked and Abandoned Vessel 952 F.Supp. 825 at p. 828, 1998 AMC 484 at pp. 487-488 (S.D. Ga. 1997); R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel Believed to be the R.M.S. Titanic 9 F.Supp.2d 624 at pp. 632-634, 1998 AMC 2421 at pp. 2432-2435 (E.D. Va. 1998); R.M.S. Titanic, Inc. v. Haver 171 F.3d 943 at pp. 967-968, 1999 AMC 1330 at pp. 1354-1357 (4 Cir. 1999.

215.

 Western Bulk Carriers, Pty. Ltd. v. P.S. Internaitonal, Ltd. 762 F.Supp. 1302 at p. 1305, 1991 AMC 2828 at p. 2831 (S.D. Ohio 1991); Transamerica Leasing Inc. v. Frota Oceanica E. Amazonica, S.A. 1998 AMC 254 at p 256 (S.D. Ala. 1997).

216.

 Tetley, M.L.C. at p. 938 and decisions cited there.

217.

 Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A. 339 U.S. 684 at p. 693, 1950 AMC 1089 at pp. 1096-1097 (1950); Bay Casino, LLC v. M/V Royal Empress 1998 AMC 2226 at p. 2237 (E.D. N.Y. 1998).

218.

 Tetley, M.L.C. at p. 939 and decisions cited there.

219.

 Ibid. at p. 1047.

220.

 Tetley, ibid. at pp. 939-940. See also Seawind Compania, S.A. v. Crescent Line, Inc. 320 F.2d 580 at p. 582, 1964 AMC 617 at p. 619 (2 Cir. 1963); Navieros Inter-Americanos v. M/V Vasilia Express 120 F.3d 304 at pp. 314-315, 1997 AMC 2845 at p. 2858 (1 Cir. 1997); Bay Casino, LLC . v. M/V Royal Empress 1998 AMC 2226 at p. 2238 (E.D. N.Y. 1998).

221.

 The "minimum contacts" criterion reflects the case law flowing from the U.S. Supreme Court's decison in International Shoe Co. Washington 326 U.S. 310 (1945). The minimum contacts may arise from the forum's "general personal jurisdiction" (where the defendant's general business contacts with the district are both "continuous and systematic") or from "specific personal jurisdiction" (where there is a causal connection between the defendant's activities within the district and the plaintiff's cause of action). See Helicoptores Nacionales de Colombia, S.A. v. Hall 466 U.S. 408 at p. 414 (1984); Ocean Chemical Transport, Inc. v. Cotton 1998 AMC 38 at p. 39 (Fla. Circuit Ct. 4th Jud. Dist. 1997, reversed on other grounds by Fla. 1st Dist. C.A. 1997). Under Rule 4(k)(2) of the Federal Rules of Civil Procedure, minimum contacts in respect of claims arising under federal law (including federal admiralty law) may also be found in the defendant's "nationwide" contacts with the United States, even where there are insufficient contacts to satisfy the due process concerns of the long-arm statute of any particular American state. See, e.g., Pacific Employers Ins. Co. v. M/T Ivor Champion 1995 AMC 2280 at p. 2286 (E.D. La. 1995); World Tanker Carriers Corp. v. M/V Ya Mawlaya 99 F.3d 717 at pp. 723-724, 1997 AMC 307 at pp. 311-313 (5 Cir. 1996).

222.

 Tetley, M.L.C. at p. 940 and decisions cited there. The relevant time for determining if the defendant is present in the district is the time the complaint is filed. See Heidmar v. Anonima Ravennate 132 F.3d 264 at pp. 267-268, 1998 AMC 982 at pp. 985-987 (5 Cir. 1998).

223.

 West of England Ship Owners v. McAllister Bros. 829 F.Supp. 122 at p. 124, 1993 AMC 2559 at pp. 2562-2563 (E.D. Pa. 1993).

224.

 Bay Casino, LLC. v. M/V Royal Empress 1998 AMC 2226 at p. 2232 (E.D. N.Y. 1998).

225.

 Tetley, ibid. at p. 940 and decisions cited there. For this reason, Rule B jurisdiction is sometimes termed "quasi in rem" jurisdiction. See Limonium Maritime, S.A. v. Mizushima Marinera, S.A. 961 F.Supp. 600 at p. 605, 1997 AMC 2938 at p. 2944 (S.D. N.Y. 1997); Navieros Inter-Americanos v. M/V Vasilia Express 120 F.3d 304 at p.315, 1997 AMC 2845 at p. 2858 (1 Cir. 1997).

226.

Supplemental Rule C(1)(b); Navieros Inter-Americanos, S.A. v. M/V Vasilia Express 120 F.3d 304, 1997 AMC 2845 (1 Cir. 1997); Bay Casino, LLC. v. M/V Royal Empress 1998 AMC 2226 at p. 2233 (E.D. N.Y. 1998). See also Tetley, ibid. at p. 943. Where the conditions of arrest under Supplemental Rule C are not met, the courts will sometimes allow the action to proceed as if it had originally been instituted with attachment under Rule B. See Heidmar v. Anonima Ravennate 132 F.3d 264 at p. 268, 1998 AMC 982 at pp. 987-988 (5 Cir. 1998).

227.

 Transamerica Leasing Inc. v. Frota Oceanica E. Amazonica, S.A. 1998 AMC 254 at p. 256 (S.D. Ala. 1997); Moore's Federal Practice, vol. 7A, 2 Ed., 1988 at para. B.03.

228.

 See Supplemental Rule B(1); U.S. Department of Justice, Manual for United States Marshals, 1986, para. 6.3, reproduced in 1987 AMC 1041-1067.

229.

 Tetley, M.L.C. at p. 1113.

230.

 Tetley, M.L.C. at p. 1113 and U.S. decisions cited there.

231.

 See, e.g., 20th Century Fox Film Corp. v.M/V Ship Agencies, Inc. 992 F.Supp. 1429 (M.D. Fla. 1997); Lion de Mer, S.A. v. M/V Loretta D 1998 AMC 1410 at p. 1412 (D. Md. 1998).

232.

 See, e.g., Techem Chemcial Co. v. MT Choyo Maru 416 F. Supp. 960, 1976 AMC 1954 (D. Md. 1976).

233.

 46 U.S. Code sect. 31326(a).

234.

 46 U.S. Code sect. 31326(b). See also Tetley, M.L.C., Chap. 24: Ranking, Equity and Laches at pp. 851-912, especially at pp. 872-876 (re U.S.ranking).

235.

 See Tetley, ibid., Chap. 28: Abus de Droit - Wrongful Arrest of Ships (Erroneous or Malicious) at pp. 1049-1089, especially at pp. 1071-1076 (re the U.S.) and decisions cited there, beginning with Frontera Fruit Co., Inc. v. Dowling 91 F.2d 292, 1937 AMC 1259 (5 Cir. 1937).

236.

 Zak Marine v. Exportkhleb 1993 AMC 1794 at pp. 1796-1797 (E.D. La. 1992).

237.

 See Wertman v. Mar del Sud 1995 AMC 1130 at p. 1136 (D. Alas. 1995).

238.

 See in particular Sniadach v. Family Finance Corp. 395 U.S. 337 (1969); Fuentes v. Shevin 407 U.S. 67 (1972); and Shaffer v. Heitner 433 U.S. 186 (1977), discussed by Tetley, M.L.C. at pp. 952-954.

239.

 See decisions cited by Tetley, ibid. at pp. 954-955, note 83, and law review articles cited at pp. 955-956, note 84.

240.

 Supplemental Rule B(1), C(1) and E(4)(f). Pre-seizure and post-seizure notices are now used even in respect of the seizure of vessels at municipal docks. See Higgins v. Port of Newport 121 F.3d 1281, 1998 AMC 573 (9 Cir. 1997).

241.

 Supplemental Rule E(4)(F). The constitutionality of the arrest and attachment procedures in the maritime context was upheld in decisions such as Polar Shipping Ltd. v. Oriental Shipping Corp. 680 F.2d 627 (9 Cir. 1982) (Rule B maritime attachment and garnishment procedures); Amstar Corp. v. S/S Alexandros T 664 F.2d 904 (4 Cir. 1981) and Merchants National Bank of Mobile v. The Dredge General G.L. Gillespie 663 F.2d 1338 (5 Cir. 1981), cert. dismissed, 456 U.S. 966 (1982) (Rule C arrest procedure); but see Alyeska Pipeline Service Co. v. The Vessel Bay Ridge 509 F.Supp. 1115 (D. Alaska 1981) (Rule C arrest procedure). With the 1985 changes to Rules B, C and E(4)(f) to provide for a prompt post seizure hearing at the request of any person claiming an interest in the property seized, the issue has been resolved. See also Newport News v. S.S. Independence 872 F.Supp. 262 at p. 265, 1995 AMC 1644 at pp. 1647-1648; 20th Century Fox v. M/V Ship Agencies, Inc. 992 F.Supp. 1423 at p. 1427, 1998 AMC 2514 at p. 2518 (M.D. Fla. 1997).

242.

 See generally Tetley, M.L.C. at pp. 945-948 and 956-958.

243.

 46 U.S. Code sect. 31325(d)(1)(A), (B), and (C). Such notice is not required where the person entitled to it has not been found in the U.S. after "search satisfactory to the court" (sect. 31325(d)(2)). Failure to notify does not affect the jurisdiction of the court to hear the action in rem, but the unnotified party may sue for damages in the amount of his interest in the vessel terminated by the action (sect. 31325(d)(3)). See also Tetley, ibid. at pp. 946-947.

244.

 For additional information and legal authority on arrest and attachment in American maritime law, see Keith B. Letourneau, "A Practical Guide to Admiralty Supplemental Rules A Through E (with Special Emphasis on the Sourthern District of Texas)" (1998) 22 Tul. Mar. L.J. 417.

245.

 Tetley, ibid. at pp. 962-963.

246.

 Law no. 67-5 of January 3, 1967 on the status of ships and other seagoing vessels, art. 70, Journal officiel de la République française, (hereinafter cited as "J.O."), January 4, 1967 at p. 106.

247.

 J.O., November 4, 1967 at p. 10836.

248.

 J.O. March 2, 1971 at p. 2064. Relevant provisions of Decree no. 67-967 as amended by Decree no. 71-161 are reproduced in Tetley, M.L.C., Appendix "G" at pp. 1483-1486.

249.

 See, e.g., Cour d'appel de Rouen, December 23, 1992, DMF 1993, 645, note Y. Tassel; Cour d'appel de Rouen, February 11, 1993, DMF 1993, note Y. Tassel; Cour de Cassation, October 5, 1993, DMF 1993, 722, note R. Le Brun; Tetley, ibid.

250.

 Cour de Cassation, January 13, 1998, DMF 1998, 823.

251.

 See, e.g, Tribunal de commerce de Paris, September 13, 1994, DMF 1995, 548, note Y. Tassel, commentary P. Bonassies, DMF 1996, 119-120; Cour d'appel de Paris, October 21, 1994, DMF 1995, 833, note P. Bonassies, DMF 1996, 120; Tetley, ibid. at p. 964.

252.

 J.O. July 14, 1991 at p. 9228.

253.

 J.O. August 5, 1992 at p. 10530.

254.

 See Cour de Cassation, January 13, 1998, DMF 1998, 823. See also M. Ndende "La problématique de la saisie des soutes: La restauration de l'autorité du Droit maritime", DMF 1998, 771. As a result of this decision, bunker attachment in France must be authorized by the president of the tribunal de commerce, rather than by a regular civil judge.

255.

 France ratified the Arrest Convention 1952 on May 25, 1957 and published it by Decree no. 58-14 of January 4, 1958. See Dalloz 1958.L.48.

256.

 The term "arrest" is used as a translation of the French term "saisie" in the Arrest Convention 1952, indicating that the Convention applies to both arrest in rem in common law jurisdictions and conservatory attachment in civil law jurisdictions. Moreover, the French title of the Convention is: "Convention internationale pour l'unification de certaines règles sur la saisie conservatoire des navires de mer" (emphasis added).

257.

 Arrest Convention 1952, art. 8(4). See also M. Rèmond-Gouilloud, Droit maritime, 2 Ed., Pedone, Paris, 1993 at para. 288 (hereinafter cited as "Rèmond-Gouilloud").

258.

 See, e.g., Cour d'appel d'Aix, May 22, 1997, DMF 1998, 692, notes P. Delebecque and C. Bourayne.

259.

 Rèmond-Gouilloud at paras. 288 and 294; R. Rodière & E. DuPontavice, Droit maritime, 12 Ed., Dalloz, Paris, 1997 at para. 178 (hereinafter cited as "Rodière & duPontavice"); A. Vialard, Droit maritime, Presses universitaires de France, Paris, 1997 at para. 366 (hereinafter cited as "Vialard"); Tetley, M.L.C. at pp. 964-965.

260.

 Rèmond-Gouilloud at para. 289; R. Rodière & E. duPontavice, at para. 178 ; Vialard at para. 367; Tetley, ibid. at p. 965. See, e.g, Cour d'appel de Douai, September 12, 1996, DMF 1997, 36, note G. Gautier, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 62; Cour d'appel d'Aix, May 22, 1997, DMF 1998, 692, notes P. Delebecque and C. Bourayne. It has been held that attachment under the Convention is possible, even where the claim is a "maritime claim" only in part. See Cour de Cassation, February 3, 1998, DMF 1998, 260, note P. Bonassies.

261.

 See, e.g, Cour d'appel d'Aix, December 6, 1995, DMF 1997, 591, note Y. Tassel, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 63; Cour de Cassation, February 3, 1998, DMF 1998, 255. See also Tetley, M.L.C. at pp. 965-966; Rodière & duPontavice, para. 178 note 6. Some French judges, however, seem intent on determining whether the claim is in fact a "maritime claim". See, e.g, Cour d'appel d'Aix, November 14, 1996, DMF 1997, 606, note Y. Tassel, commentary by P. Bonassies, ibid.

262.

 Decree no. 67-967, as amended by Decree no. 71-161, at art. 29; Rèmond-Gouilloud at para. 289; Rodière & duPontavice at paras. 176 and 178. This "founded in principle" criterion has been assimilated to the concept of the "good arguable case" in English law. See Cour d'appel de Rouen, October 20, 1994, DMF 1996, 377 at p. 380, note Y. Tassel. It is consistent with the basic principle of civil law that all of the debtor's property is the pledge of his creditors. See the French Civil Code art. 2092; Vialard at para. 367.

263.

 See, e.g., Cour de Cassation, March 19, 1996, DMF 1996, 503 at p. 504; Cour d'appel d'Aix, September 12, 1996, DMF 1997, 36, note G. Gautier, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 64; Rèmond-Gouilloud, at para. 289.

264.

 Law no. 67-5 of January 3, 1967, art. 31. See text of relevant provisions of Law no. 67-5 in Tetley, M.L.C., Appendix "G" at pp. 1479-1483. On the ranking of maritime liens in France, see ibid. at pp. 902-905.

265.

 See, e.g., Cour d'appel de Montpellier, July 31, 1996, DMF 1997, 31, note A. Arnaud, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 67; Cour d'appel d'Aix, May 15, 1996, DMF 1997, 598, note Y. Tassel.

266.

 Arrest Convention 1952 art. 3(1); Rèmond-Gouilloud at paras. 291-2 and 293-b); Vialard at para. 371; Tetley, ibid. at p. 966 note 131 and authorities cited there.

267.

 Arts. 3(1) and (4) of the Arrest Convention 1952.

268.

 Tetley, M.L.C. at pp. 966-967.

269.

 Tetley, ibid. at p. 966 note 131 and authorities cited there, and at p. 1046. See also Rèmond-Gouilloud at para. 292; Vialard at paras. 371 and 372; A. Vialard, "Les sociétés écrans: apparence ou transparence?" DMF 1991, 179. See also criticisms by scholars such as J.S Rohart, "La saisie conservatoire des navires apparentés" DMF 1994, 339.

270.

 Cour de Cassation, March 19, 1996, DMF 1996, 503, with commentaries by A. Vialard, "Personnalité morale des sociétés d'armement et apparentement abusif des navires saisis" DMF 1996, 467 and by P. Bonassies, DMF Hors Série No. 1, 1997, no 31; Cour de Cassation, January 21, 1997, DMF 1997, 612, note A. Vialard, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 65; Cour d'appel d'Aix, May 22, 1997, DMF 1998, 692, notes P. Delebecque and C. Bourayne.

271.

 See, e.g., Cour d'appel de Rennes, January 15, 1997, DMF 1997, 584, note I. Corbier, commentary by P. Bonassies, DMF Hors Série No. 2, 1998, no. 65.

272.

 French domestic law governs attachment procedure under the Arrest Convention 1952, because art. 6, second para., of the Convention makes the rules of procedure relating to the arrest of a ship, the obtaining of judicial authority to arrest and all matters of procedure subject to the law of the contracting state where the arrest was made or applied for. For a comprehensive article on maritime attachment procedures in France, see Hélène Cadiet and Guillaume Brajeux, "La procédure de saisie conservatoire de navires entre droit commun et règles spéciales" DMF 1998, 995.

273.

 Vialard at para. 374.

274.

 Rèmond-Gouilloud at para. 297 bis; Rodière & duPontavice at paras. 176 and 180; Vialard at para. 375; Tetley, M.L.C. at p. 969.

275.

 Decree no. 67-967, art. 26. In practice, the port service, on being notified of the attachment, refuses outwards clearance to the vessel.

276.

 Decree no. 67-967, art. 30. See also Rodière & duPontavice at par. 177; Rèmond-Gouilloud at para. 297 bis; Vialard at para. 375; Tetley, ibid.

277.

 See Cour de Cassation, January 17, 1995, DMF 1996, 815, critical commentaries by Rèmond-Gouilloud, "Forum arresti: le jusant", DMF 1996, 787 and P. Bonassies, DMF 1997, Hors Série No. 1, 1997, no 36; Tetley, ibid. at p. 968.

278.

 See, however, Cour de Cassation, February 11, 1997, DMF 1997, 616, note P. Bonassies and commentary, DMF Hors Série No. 2, 1998, no. 72, where the jurisdiction of the French forum arresti was upheld in respect of matters relating, not to the merits of the dispute itself, but rather to the execution of a foreign judgment which had been recognized and rendered executory in France.

279.

 Tetley, ibid., Chap. 32: State(Crown) Liability and Immunity, at pp. 1189-1210, and especially at pp. 1205-1210 (re France). See also Rodière & duPontavice at paras. 248-253 and para 462; Rèmond-Gouilloud at paras. 76-77.

280.

 The International Convention for the Unification of Certain Rules concerning the Immunity of State-owned Ships, adopted at Brussels, April 10, 1926, and the Additional Protocol, adopted at Brussels on May 24, 1934. France ratified both instruments on July 27, 1955.

281.

 Immunity of State-owned Ships Convention 1926 art. 3; see alsoTetley at pp. 970-971 and Chap. 31: Foreign Sovereign Immunity at pp. 1159-1186, and especially at pp.1163-1165 (re the Convention 1926) and 1166-1167 (re France).

282.

 See, e.g. Cour d'appel de Rouen, December 23, 1985, DMF 1986, 349. See also Rèmond-Gouilloud, "'L'Émanation maritime' ou commnet faire céder l'écran de la personnalité morale d'un armement d'État" DMF 1986, 333; Daniel Guyot, "Immunité des navires d'État: Les thèses en présence" DMF 1987, 405; M. Rèmond-Gouilloud, "L'émanation maritime: pour sortir de la clandestinité" DMF 1992, 451; Vialard at para. 373; Tetley, ibid. at p. 1166 note 25 and other authorities cited there. See also Cour de Cassation, January 4, 1995, Bulletin civil I, no. 6; Cour de Cassation, October 1, 1997, note P. Delebecque.

283.

 Tetley, ibid. at pp. 969-970.

284.

 Decree no. 67-967, art. 27; see also Rèmond-Gouilloud at para. 300; Rodière & duPontavice at para. 177 note 3; Vialard at para. 377.

285.

 Decree no. 67-967, art. 28; Tetley, M.L.C. at p. 970.

286.

 Decree no. 67-967, arts. 31-58.

287.

 Vialard at para. 378.

288.

 Rèmond-Gouilloud at para. 300; Tetley, M.L.C. at pp. 1077-1079.

289.

 Cour de Cassation, March 3, 1998, DMF 1998, 699, note R. Rezenthel.

290.

 See Tetley, M.L.C. at pp. 972-973.

291.

 Lord Denning, The Due Process of Law, Butterworths, London, 1982 at p. 134, cited by Tetley, ibid. at p. 983 note 233. Note, however, that credit for the Mareva injucnction should also go to Geofrrey Brice, Q.C., and M.N. Howard, who prepared, introduced and pled the motion for the injunction.

292.

 [1975] 2 Lloyd's Rep. 137, [1980] 1 All. E.R. 213 Note (C.A.). The first Mareva injunction (as it was later called) was issued in Nippon Yusen Kaisha v. Karageorgis [1975] 2 Lloyd's Rep. 137, [1975] 3 All E.R. 282 (C.A.), another decision rendered by Lord Denning, M.R.

293.

 See, e.g., Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559, upheld [1997] 2 Lloyd's Rep. 183 (C.A.), leave to appeal refused, where Mareva injunctions prohibited the defendant from dealing with his worldwide assets, up to certain specified amounts related to the sums claimed by plaintiffs in two actions.

294.

 Tetley, ibid. at pp. 983-984, 988-989 and 990-991.

295.

 U.K. 1981, c. 54, sect. 37(3).

296.

 The Practice Direction of July 28,1994 is reproduced in [1994] 4 All E.R. 52 (hereinafter cited as "Practice Direction 1994"). Note that a new standard form of Mareva injunction was issued by the High Court in its Practice Direction of October 28, 1996. See [1996] 1 W.L.R. 1552, [1997] 1 All E.R. 288.

297.

 See, e.g., Rasu Maritima S.A. v. Pertamina [1977] 2 Lloyd's Rep. 397, [1978] Q.B. 644 (C.A.); The Siskina [1978] 1 Lloyd's Rep. 1, [1979] A.C. 210 (H.L.); The Assios [1979] 1 Lloyd's Rep. 331 (C.A.); Third Chandris Shipping Corp. v. Unimarine S.A. (The Genie) [1979] 2 Lloyd's Rep. 184, [1979] 2 All E.R. 972 (C.A.).

298.

 Ibid.

299.

 See Tetley, M.L.C. at pp. 987-988 and other authorities cited there.

300.

 [1983] 2 Lloyd's Rep. 600 at pp. 606-607, [1984] 1 All E.R. 398 at pp. 406-407, upheld [1983] 2 Lloyd's Rep. 612, [1983] 1 W.L.R. 1412, [1984] 1 All E.R. 413 (C.A.).

301.

 See Tetley, M.L.C. at pp. 988-989. See also Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559 at pp. 567-568, upheld without discussion of this point, [1997] 2 Lloyd's Rep. 183 (C.A.).

302.

 The applicant must be asserting some legal or equitable right enforceable within the jurisdiction. See The Siskina [1978] 1 Lloyd's Rep.1 at p. 6, [1979] A.C. 210 at p. 256 (H.L.); South Carolina Ins. Co. v. Assurantie Maatschappij "De Zeven Provincien" N.V. [1986] 2 Lloyd's Rep. 317 at p. 324, [1987] A.C. 24 at p. 40 (H.L.); Mercedes Benz A.G. v. Leiduck [1995] 2 Lloyd's Rep. 417 at pp. 423-425, [1996] 1 A.C. 284 at p. 301 (P.C.); Tetley, ibid. at pp. 985-986 and other authorities cited there. See, however, the strong dissent of Lord Nicholls in the latter decision, 2 Lloyd's Rep. at pp. 430-431, A.C. at pp. 310-312, holding that the existence of a substantive cause of action in the jurisdiction should not be an essential condition of the court' jurisdiction to grant a Mareva injunction.

303.

 The Pertamina [1977] 2 Lloyd's Rep. 397 at p. 404, [1978] Q.B. 644 at p. 661 (C.A.); The Niedersachsen [1983] 2 Lloyd's Rep. 600 at p. 605, [1984] 1 All E.R. 398 at p. 404, where Mustill J. held that a "good arguable case" meant "... a case which is more than barely capable of serious argument, and yet not necessarily one which the judge believes to have a better that 50 per cent chance of success." The "good arguable case" criterion replaced the "strong prima facie case" test first propounded by Lord Denning in Nippon Yusen Kaisha v. Karageorgis [1975] 2 Lloyd's Rep. 137 at p. 138, [1975] 3 All E.R. 282 at p. 283 (C.A.). See Tetley, ibid. at p. 986, note 251 and other authorities cited there. See also Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559 at p. 567, upheld without discussion of this point, [1997] 2 Lloyd's Rep. 183 (C.A.), leave to appeal refused.

304.

 Tetley, ibid. at p. 987.

305.

 Third Chandris Shipping Corp. v. Unimarine S.A. (The Genie) [1979] 2 Lloyd's Rep. 184 at p. 189,[1979] 2 All E.R. 972 at p. 985 (C.A.); Barclay-Johnson v. Yuill [1980] 1 W.L.R. 1259 at p. 1265 (Ch.); The Niedersachsen [1983] 2 Lloyd's Rep. 600 at p. 617, [1984] 1 All E.R. 398 at p. 414 (C.A.); Tetley, ibid. note 253 and other authorities cited there.

306.

American Cyanamid v. Ethicon Ltd. [1975] A.C. 396 at p. 4008, [1975] 1 All E.R. 504 at p. 511 (H.L.); Rasu Maritima S.A. v. Pertamina [1977] 2 Lloyd's Rep. 397 at pp. 405-406, [1978] Q.B. 644 at pp. 664-665 (C.A.); Felixstowe Dock & Railway Co. v. U.S. Lines, Inc. [1987] 2 Lloyd's Rep. 76 at pp. 93-95, [1989] Q.B. 360 at pp. 385-389; Tetley, ibid. note 254 and other authorities cited there.

307.

 See, e.g, Babanaft International Co. S.A. v. Bassatne [1988] 2 Lloyd's Rep. 435, [1989] 2 W.L.R. 232, [1989] 1 All E.R. 433, [1990] Ch. 13 (C.A.); Republic of Haiti v. Duvalier [1989] 1 All E.R. 456, [1989] 2 W.L.R. 261, [1990] 1 Q.B. 202 (C.A.); Derby & Co. v. Weldon (No. 1) [1989] 1 All E.R. 469, [1989] 2 W.L.R. 276, [1990] Ch. 48 (C.A.); Derby & Co. v. Weldon(Nos. 3 & 4) [1989] 1 All. E.R. 1002, [1989] 2 W.L.R. 412, [1990] Ch. 65 (C.A.); Tetley, ibid. at p. 992. For a more recent example in a maritime case, see Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559, upheld [1997] 2 Lloyd's Rep. 183 (C.A.), leave to appeal to the House of Lords refused.

308.

 Derby & Co. Ltd. v. Weldon (No. 6) [1990] 1 W.L.R. 1139, [1990] 3 All E.R. 263 (C.A.).

309.

 Tetley, ibid. at p. 992.

310.

 See, e.g., Campbell McLaughlan, "Transnational Applications of Mareva Injunctions and Anton Piller Orders" (1987) 36 I.C.L.Q. 669; Peter Kaye, "Extraterritorial Mareva Orders and the Relevance of Enforceability" (1990) 9 Civil Justice Quarterly 12; Ali Malek and Caroline Lewis, "Worldwide Mareva Injunctions: The Position of International Banks" [1990] LMCLQ 88; Robert Crawford, "The Extra-territorial Effect of Mareva Injunctions - The Sleeping Giant in Fairyland" (1990) 18 Australian Bus. L. Rev. 28; Andrew Rogers, "The Extra-Territorial Reach of the Mareva Injunction" [1991] LMCLQ 231; David Capper, "Worldwide Mareva Injunctions" (1991) 54 Mod. L.Rev. 329; David Capper, "The World wide Mareva Marches On" [1991] LMCLQ 26; Richard Harrison, "Controlling the Mareva" (1992) 142 New L.J. n. 6574 at p. 1511(2); Paul D. Friedman, "Worldwide Mareva Injunctions -- Assumption of Jurisdiction" (1994) 144 New L.J. n. 6655 at p. 932(3); Steven Gee, "Mercedes and Mareva" (1995) 139 Solicitors' J. n. 41 at p. 1076(2); Peter Devonshire, "The Implications of Third Parties Holding Assets Subject to a Mareva Injunction" [1996] LMCLQ 268; David Capper, "The Trans-Jurisdictional Effects of Mareva Injunctions" (1996) 15 Civil Justice Quarterly 211; Tetley, ibid. at p. 992 note 280 and other authorities cited there.

311.

 The Practice Direction 1994, reproduced in [1994] 4 All E.R. 52.

312.

 Practice Direction 1994, Annex 2, Sch. 1(2) and Annex 3, Sch. 1(2).

313.

 In such cases, however, the counterclaim must be served either immediately or within the time allowed by the judge. See Fakih Bros. v. Moller [1994] 1 Lloyd's Rep. 103 at p. 110.

314.

 Para. A(2) of the Practice Direction 1994 requires the application to be lodged with the judge at least two hours before the hearing "[w]here practicable". In cases of great urgency, however, the application may be made by telephone, even if the documents are not submitted beforehand. See Allen v. Jambo Holdings [1980] 2 All E.R. 502, [1980] 1 W.L.R. 1252 (C.A.).

315.

 Para. A(2) of the Practice Direction 1994 provides that the applicant should be required, in an appropriate case, to support his cross-undertaking in damages by a payment into court or by an insurance company bond. Alternatively, the judge may order a payment by way of such security to the applicant's solicitor, which the latter would hold as an officer of the court. On the cross-undertaking in respect of third parties, see Practice Direction 1994, Annex 2, Sch. 1(6) and Annex 3, Sch. 1(6).

316.

 Practice Direction 1994 Annexes 2 and 3, "Notice to the Defendant", para. (1), and "Effect of this Order", paras. (1) and (2). See also Annex 2, Sch. 1(2) and 1(5) and Annex 3, Sch. 1(2) and 1(5). See also Baltic Shipping Ltd. v. Translink Shipping Ltd. [1995] 1 Lloyd's Rep. 673, where the failure to serve a worldwide Mareva order on a foreign bank affected by the injunction was among the reasons invoked by the court in varying the order. See also Tetley, M.L.C. at pp. 990 and 1084.

317.

 Ancillary orders could include, for example, orders for discovery or interrogatories, orders for the cross-examination of the defendant on his affidavit declaring his assets, orders for the investigation or the delivery up of assets to a court-appointed receiver or to the plaintiff's solicitors, orders preventing the defendant from leaving the jurisdiction and/or Anton Piller orders. See generally Tetley, M.L.C. at p. 991. See also Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559, upheld [1997] 2 Lloyd's Rep. 183 (C.A.), leave to appeal refused, where Mareva injunctions were combined with anti-suit injunctions; Gidrxslme Shipping Co. v. Tantomar-Transportes Maritimos Lda. [1994] 2 Lloyd's Rep. 393, [1995] 1 W.L.R. 299 (Q.B.) (worldwide disclosure order combined with Mareva injunction affecting intra-jurisdictional assets).

318.

 The Rena K [1978] 1 Lloyd's Rep. 545 at pp. 562-563, [1979] Q.B. 377 at pp. 409-410.

319.

 See Practice Direction 1994, Annex 2, "Third Parties", para. 2, reproduced in Tetley, ibid. at p. 993, note 283.

320.

 Oceanica Castelana v. Mineralimportexport [1983] 2 All E.R. 65, [1983] 2 Lloyd's Rep. 204. See also Tetley, ibid. at pp. 993-994 and other decisions cited there.

321.

 Iraqi Ministry of Defence v. Arcepey Shipping Co. S.A. (The Angel Bell) [1980] 1 Lloyd's Rep. 632, [1980] 1 All E.R. 480. See also Tetley, ibid. at pp. 994-996 and other decisions cited there. See also Svendborg v. Wansa [1996] 2 Lloyd's Rep. 559 at pp. 575 and 576, upheld [1997] 2 Lloyd's Repl 183 at p. 190 (C.A.), leave to appeal refused, where a "radical reduction" in the amount of a Mareva injunction was ordered, if the defendant complied with an anti-suit injunction. See also Comdel Commodities Ltd. v. Siporex Trade S.A. [1997] 1 Lloyd's Rep. 424 at p. 435 (C.A.), where a Mareva injunction was discharged due to the claimant's unexplained delay to prosecute the claim for some 19 months.

322.

 See early Canadian Mareva decisions cited by Tetley, ibid. at p. 1002. Other British Commonwealth countries have also embraced the Mareva remedy. See, e.g., Jackson v. Sterling Industries Ltd. (1987) 61 A.L.J.R. 332 (High Court of Australia).

323.

 [1985] 1 S.C.R. 2, (1985) 15 D.L.R. (4th) 161.

324.

 The Supreme Court pointed out, for example, that the grant of Mareva injunction to prohibit the transfer of assets between Canadian provinces might be unwarranted, in view of the possibility of interprovincial enforcement of judgements throughout Canada See Aetna Financial Services, supra, [1985] 1 S.C.R. at pp. 34-37, 15 D.L.R. (4th) at pp. 184-186.

325.

 Aetna Financial Services, supra, [1985] 1 S.C.R. at p. 27, 15 D.L.R. (4th) at p. 178. See also Tetley, M.L.C. at pp. 1004 and 1083. See also Pegasus Lines Ltd. S.A. v. Devil Shipping Ltd. (1996) 120 F.T.R. 241 at pp. 268-269 (Fed. Ct. of Can.).

326.

 See Tetley, ibid. at pp. 1004-1006 and Federal Court decisions cited there.

327.

 See, e.g. Mooney v. Orr (1994) 98 B.C.L.R. (2d) 318 (B.C. S.C.); Community Association of South Indian Lake, Inc. v. MacIver [1996] 1 W.W.R 168 at p. 170 (Man. C.A.); J.A. Epp, "World-wide Mareva Injunctions in Common Law Canada" (1996) 59 Mod. L. Rev. 460 and other Canadian authorities cited by Tetley, ibid. at p. 1004 note 344. See alsoVaughan Black and Edward Babin, "Mareva Injunctions in Canada" Territorial Aspects" (1997) 28 Can. Bus. L.J. 430 and Elizabeth Edinger, "Comments on Black and Babin, 'Mareva Injunctions in Canada: Territorial Aspects'" (1997) 28 Can. Bus. L.J. 477; Paul Mitchell, "The Mareva Injunction in Aid of Foreign Proceedings" (1996) 34 Osgoode Hall L.J. 741; Michael A. Skene, "Commercial Litigation beyond the Pale: A Comparison of Extraterritorial Antisuit and Mareva Jurisdiction Exercised by the Courts of England and British Columbia in Commercial Disputes" (1996) 30 U.B.C.L.R. 1.

328.

 SOR 98/106, in force April 25, 1998. The Federal Court's jurisdiction to issue Mareva injunctions has been held to be derived from its power to protect and preserve its own process. See Standal Estate v. Swecan Int. Ltd. [1990] 1 F.C. 115 (Fed. C.A.).

329.

 Parmar Fisheries Ltd. v. Parceria Maritima (1982) 53 N.S.R. (2d) 338 at pp. 344-346, (1982) 141 D.L.R. (3d) 498 at pp. 503-505 (Nova Scotia Supr. Ct.); Tetley, ibid. at p. 1006.

330.

 S.C. (1960) 8 & 9 Eliz. II, c. 44.

331.

 Part I of the Constitution Act 1982, which itself is Schedule B to the Canada Act 1982, U.K. 1982, c. 11 (R.S.C. 1985, Appendix II, No. 44).

332.

 See generally Tetley, M.L.C. at pp. 1014-1015 and 1085-1086. See also sect. 1 of the Canadian Charter of Rights and Freedoms, permitting certain restrictions on basic rights which are "...demonstrably justified in a free and democratic society". See also discussion surrounding notes 168 to 177, supra.

333.

 See Mercedes Benz A.G. v. Leiduck [1995] 2 Lloyd's Rep. 417 at p. 424, [1996] 1 A.C. 284 at p. 300 (P.C.): "Moreover, it is now quite clear that Mareva relief takes effect in personam alone; it is not an attachment; it gives the claimant no proprietary rights in the assets seized, and no advantage over other creditors of the defendant." (per Lord Mustill).

334.

 See Tetley, ibid. at pp. 1017-1018.

335.

 See Tetley, ibid. at pp. 1020-1021.

336.

 See Tetley, ibid. at pp. 1018-1020.

337.

 See Tetley, ibid. at pp. 996-997.

338.

 [1976] Ch. 55 (C.A.). The first reported decision granting such an order was the 1974 judgment of Templeman J. in E.M.I. Ltd. v. Pandit [1975] 1 W.L.R. 302 (Ch.). See generally Martin Dockray, Anton Piller Orders, Watson Hiss, London, 1992.

339.

 [1981] 2 W.L.R. 668, [1982] A.C. 380 (H.L.).

340.

 U.K. 1981, c. 54.

341.

 U.K. 1997, c. 12, in force, for the most part, as of April 27, 1997, pursuant to SI 1997/841.

342.

 By placing the "Anton Piller order" on a statutory basis, sect. 7 of the Civil Procedure Act 1997 makes it clear that is it is the court order which is the basis of the requirement to permit entry, rather than the implied consent of the owner.

343.

 Anton Piller KG v. Manufacturing Processes Ltd. [1976] Ch. 55 at p. 62 (C.A.).

344.

 Columbia Pictures Industries Inc. v. Robinson [1987] Ch. 38 at p. 76; Lock International plc. v. Beswick [1989] 1 W.L.R. 1268 at p. 1281 (Ch.); Coca-Cola Co. v. Gilbey [1995] 4 All E.R. 711 at p. 715 (Ch.); Dockray, supra, note 338 at pp. 19-20.

345.

 See Dockray, ibid. at pp. 26-32 and decisions cited there.

346.

 See Dockray, ibid. at pp. 1-2 and 20-25 and decisions cited there.

347.

 See Practice Direction 1994, at para. (B) and Annex 1 (the standard form of Anton Piller order), reproduced in [1994] 4 All E.R. 52 at pp. 53-54 and 54-58 respectively. Note that the standard form of Anton Piller order was changed by the Practice Direction of October 28, 1996. See [1996] 1 W.L.R. 1552, [1997] 1 All E.R. 282.

348.

 Many of these restrictions were called for in Universal Thermosensors Ltd. v. Hibben [1992] 1 W.L.R. 840 at pp. 859-860 (Ch.).

349.

 See Practice Direction 1994, Annex 1, Sch. 3, [1994] 4 All E.R. 52 at pp. 57-58.

350.

 See Practice Direction 1994, Annex 1, Sch. 4, [1994] 4 All E.R. 52 at p. 58.

351.

 Dockray, supra, note 338 at pp. 69-74 and decisions cited there. See also the Civil Procedure Act 1997, U.K. 1997, c. 12 at sect. 7(7).

352.

 Dockray, ibid. at pp. 62-65.

353.

 See Tetley, M.L.C. at p. 1024, note 448, and decisions cited there.

354.

 See, e.g., J. Berryman, "Anton Piller Orders: a Canadian Common Law Approach" (1984) 34 U.T. L.J. 1; J. Berryman, "Anton Piller Orders: An Update" (1986) 2 Intel. Prop. J. 332; A.M. Rock, "The Anton Piller Order: An Examination of its Nature, Development and Present Position in Canada" (1985) 5 Adv. Q. 191; G. Takach, "Exploring the Outer Limits: the Anton Piller Order in Canada" (1985) 23 Alta. L. Rev. 310; M.P. McInnes, "The Right to Silence in the Presence of Anton Piller: A Question of Self-Incrimination" (1988) 26 Alta L. Rev. 332; and other legal writings cited by Tetley, ibid. at p. 1024, note 448.

355.

 [1994] 3 S.C.R. 835, (1994) 120 D.L.R. (4th) 12.

356.

 Part I of the Constitution Act 1982, which itself is Schedule B to the Canada Act, 1982, U.K. 1982, c. 11 (R.S.C. 1985, Appendix II, No. 44).

357.

 [1996] 3 F.C. 493, (1996) 114 F.T.R. 155 (Fed. Ct. of Can.).

358.

 Among the recommended procedures were the filing of the application in the Federal Court at least two clear days before the hearing of the motion; the requirement that the applicant show a "very strong prima facie case"; the requirement for the presence of a supervising solicitor to observe and report on the service and execution of the order. Reed J. also recommended a number of practices relating to the motion for review of the order's execution and the development of a model Anton Piller order. See Tetley, M.L.C. at p. 1025, note 454.

359.

[1997] 1 F.C. 223 (Fed. Ct. of Can.).

360.

 Ibid. at pp. 227-228.

361.

 Ibid. at pp. 229-232, citing EMI Ltd. v. Pandit [1975] 1 All E.R. 418 (Ch.), Yousif v. Salama [1980] 1 W.L.R. 1540 (C.A.) and Mr. Justice Robert J. Sharpe, Injunctions and Specific Performance, Canada Law Book Inc., 2 Ed., Aurora, Ontario, 1995 at pp. 2-65 and 2-66.

362.

 Ibid. at p. 233, citing Sharpe, supra. See also Ultramar Canada Inc. v. SoconavInc. [1988] 2 F.C. D-7 (Fed. Ct. of Can.), where an order permitting the general inspection of a ship and the production of documents was refused, because evidence of the accident in question could be obtained by the normal discovery process.

363.

 See R. Craigen, "Anton Piller: Valuable remedy or oppressive tool?" (1995) 14 Advocates' Soc. J., No. 2 at p. 11; P. Godin, "Anton Piller Orders in an Age of Scepticism: Charter Application and Other Safeguards for Judicially Ordered Searches" (1996) 54 U. of T. Fac. L. Rev. 107.

364.

 See text of the "Lisbon Draft" in Berlingieri, Arrest of Ships, Appendix II at pp. 157-196.

365.

 The International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages, adopted at Brussels, May 27, 1967, but not in force. See text in Tetley, M.L.C., Appendix "B" at pp. 1421-1428.

366.

 See Berlingieri, Arrest of Ships: A Commentary on the 1952 Arrest Convention, 1 Ed., London, Lloyd's, 1992 at pp. 11-14.

367.

 The International Convention on Maritime Liens and Mortgages, 1993, adopted at Geneva, May 6, 1993 (hereinafter cited as the "Maritime Liens and Mortgages Convention 1993). See text reproduced in Tetley, ibid., Appendix "C" at pp. 1429-1438.

368.

 See JIGE(IX)/2, TD/B/IGE.1/2, LEG/MLM/39.

369.

 See JIGE(IX)/4, TD/B/IGE.1/4, LEG/MLM/41, para. 9.

370.

 See JIGE(IX)/5, TD/B/IGE.1/5, LEG/MLM/42.

371.

 The JIGE, in Annex I of its report on its ninth session, supra note 368, requested the IMO Council and UNCTAD's Trade and Development Board to consider proposing to the UN General Assembly the convening of a diplomatic conference to consider and adopt a convention on the arrest of seagoing ships on the basis of the draft articles prepared by the JIGE.

372.

 See Document No. A/CONF/188.6, dated March 12, 1999.

373.

 On "special legislative rights" generally, see Tetley, M.L.C., Chap. 2: Special Legislative Rights at pp. 63-71. See also ibid., Chap. 3: Dock, Harbour and CanalCharges at pp. 73-99; Chap. 4: Wreck Removal at pp. 101-125; Chap. 5: Pollution at pp. 127-168; and Chap. 6: Forfeiture for Drug and Related Offences at pp 169-215.

374.

 See Tetley, ibid. at pp. 76-77, 175, 214. The Maritime Liens and Mortgages Convention 1993, at art. 12(3), does permit states to enact a special legislative right against judicial sale proceeds (ranking before all other maritime lien claims on a vessel) for wreck removal expenses incurred by public authorities, but only where the removal has been effected in the interest of safe navigation or the protection of the marine environment. This right does not extend to pollution damage, however. See ibid. at pp. 68, 144 and 168.

375.

 See, e.g., the UN Convention Against Illicit Drugs and Psychotropic Substances 1988, adopted at Vienna, December 20, 1988 and in forceNovember 11, 1990, (1989) 28 I.L.M. 497, at art. 5(1)(a) and (b). See also W. Tetley, M.L.C. at p. 176.

376.

 See, e.g., the Law of the Sea Convention 1982, adopted at Montego Bay, Jamaica, on December 10, 1982 and in force Novemer 16, 1994, (1982) 21 I.L.M. 1261, at art. 220(2) and (6). See also W. Tetley, M.L.C. at p. 141.

377.

 See, e.g., the Canada Marine Act, S.C. 1998, c. 10, sect. 122 (1), which grants a port authority, the Minister of Transport of Canada or a person operating the St. Lawrence Seaway under an agreement with the Government, a lien on the ship and proceeds of its disposition for fees and interest in respect of the ship or goods carried on it and for damage to property caused by the ship or crew, which lien takes precedence over "all other rights, interests, claims and demands, other than claims for wages of seamen under the Canada Shipping Act."

378.

 Art. 1 of the Draft Articles 1997 began as follows: "(1) 'Maritime claim' means any [claim concerning or arising out of the ownership, construction, possession, management, operation or trading of any ship, or concerning or arising out of a mortgage or an 'hypothèque' or a registrable charge of the same nature on any ship, such as any] claim in respect of:..."

379.

 It is noteworthy that art. 28(3) of the United Nations Convention on the Law of the Sea, adopted in Montego Bay, December 10, 1982 and in force November 16, 1994, (1982) 21 I.L.M. 1261, expressly permits arrest of a foreign ship by a coastal state in its territorial sea or while passing through the territorial sea after leaving its internal waters, in accordance with its law, for purposes of any civil proceeding.

380.

 "National" maritime liens, under art. 6(b) and (c) of the Liens and Mortgages Convention 1993, are extinguished six months after the claims which they secure arise or sixty days after the "bona fide" sale of the ship, whichever happens first, and these maritime liens rank after, rather than before, ship mortgages. There are no provisions in the Arrest Convention 1999, however, concerning the duration or extinction or ranking of maritime liens granted or arising under national law.

381.

 See the JIGE's report of its ninth session, JIGE(IX)4, TD/B/IGE.1/4,LEG/MLM/41 at para. 51.

382.

 See The Halcyon Isle [1981] A.C. 221, [1980] 2 Lloyd's Rep. 325, 1980 AMC 1221 (P.C.).

383.

 See Ocean Ship Supply v. The Leah 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984).

384.

 See The Ioannis Daskalelis [1974] S.C.R. 1248, [1974] 1 Lloyd's Rep. 174, 1973 AMC 176 (Supr. Ct. of Can.).

385.

 See W. Tetley, International Conflict of Laws, 1994, Chap. XVII at pp. 533-587, and especially at pp. 570-573 criticizing the U.K. position on the non-recognition of foreign maritime liens differing from English ones, and ibid. at pp.552-564 and pp. 564-570, supporting the recognition by U.S. and Canadian courts respectively of foreign maritime liens under the proper law, even if different from those recognized under the lex fori.

386.

 See Cardozo C.J.'s famous dictum in Ultramares Corp. v. Touche, Niven & Co. 255 N.Y. 170 at p. 174 (N.Y C.A. 1931) with respect to the recoverability in tort of damages for "pure economic loss".

387.

 For example, the United States has unfortunately never become a party to most international conventions on private maritime law (e.g. on ship collision, limitation of shipowners' liability and oil pollution). While it did give effect, with some modifications, to the Hague Rules 1924 in its Carriage of Goods by Sea Act of 1936 (COGSA), 46 U.S. Code Appendix sects. 1300-1315, the U.S., unlike most other major shipping nations, has not become a party to either the Visby Protocol of February 23, 1968 or the Visby S.D.R. Protocol of December 21, 1979 amending the Hague Rules (i.e. the "Hague/Visby Rules") or to the Hamburg Rules 1978, on the carriage of goods by sea.