Government and industry representatives, maritime lawyers and transport specialists from all geographical regions will meet at a Diplomatic Conference of the United Nations and the International Maritime Organization (IMO) on Arrest of Ships in Geneva from 1-12 March. The Conference, being convened under UNCTAD’s auspices, is to consider and adopt a new Convention on arrest of ships.
The subject of arrest of ships is of great importance to the international shipping and trading community. While the interests of owners of ships and cargo lie in ensuring that legitimate trading is not interrupted by the unjustified arrest of a ship, the interest of claimants lies in being able to obtain security for their claims. Like the 1952 Convention, the new draft Convention aims at striking a balance between these interests, bearing in mind the different approaches adopted by various legal systems.
The Conference will have before it a draft convention (TD/B/IGE.1/5) prepared by a joint UNCTAD/IMO Intergovernmental Group of Experts during three sessions held alternatively at UNCTAD headquarters in Geneva and IMO headquarters in London between 1994 and 1996.
The preparatory work on a new international instrument on Arrest of Ships began following the adoption at UNCTAD in 1993 of the International Convention on Maritime Liens and Mortgages (MLM Convention) by the UN/IMO Conference of Plenipotentiaries on Maritime Liens and Mortgages.
The arrest being a means of enforcing maritime liens and mortgages, it was considered necessary to revise the 1952 Convention on Arrest of Ships so as to closely align the two conventions and to ensure that all claims giving rise to a maritime lien under the 1993 MLM Convention would have a right of arrest under the Arrest Convention. Although the 1952 Convention enjoys wide international acceptance, some of its provisions have become out-of-date, while others are considered ambiguous giving rise to conflicting interpretations.
The draft Convention aims to regulate the circumstances under which ships may be arrested or released from arrest. It covers issues such as claims for which a ship may be arrested, ships that can be subject of arrest, release from arrest, right of rearrest and multiple arrest, liability for wrongful arrest and jurisdiction on merits of the case.
One important issue on which opinions are divided, which will need to be decided by the Conference, is the definition of a maritime claim. Should the Convention adopt a similar approach to that of the 1952 Convention and provide a closed list of claims giving rise to a right of arrest? Or should it adopt a more flexible approach, providing an open-ended list of claims and avoiding exclusion of maritime claims having a right of arrest?
Those in favour of a closed list argue that this would provide certainty as to the right of arrest, while maintaining arrest as an exceptional last resort to secure a maritime claim. In contrast, those supporting an open-ended list of maritime claims emphasize the importance of retaining flexibility and avoiding the exclusion of genuine maritime claims from having a right of arrest.
The provisions of the draft convention have elicited written comments and proposals from a number of Governments, intergovernmental and non-governmental organizations. They include : Hong Kong, China - Italy - Japan - Jordan - Kenya - Madagascar - Mexico - Morocco - The Netherlands - Republic of Korea - Slovakia - Sri Lanka - Sudan - Thailand - United Kingdom - United Republic of Tanzania. The following organizations have also commented on the draft: UN/ECE (United Nations Economic Commission for Europe) - FAO (Food and Agriculture Organization of the United Nations) - CMI (Comité Maritime International) - ALDENAVE (Asociacion Latinoamericana de Derecho de la Navegacion y del Mar) - IAPH (International Association of Ports and Harbors) - ICS (International Chamber of Shipping) - ISSA ( International Ship Suppliers Association).
Comments and proposals received are compiled in documents A/Conf. 188/3 and A/Conf. 188/3/Add./1, Add./2 and Add./3, and will be before the Conference for consideration.