The plaintiff, a company operating at the Santa Apolónia container terminal in the port of Lisbon, provided stevedoring and container management services to three vessels owned by the defendant. The plaintiff contended that these services had been provided at the request of the defendant's shipping agent. The relevant vessels were time chartered to a third party. The plaintiff's invoices were not paid, so it applied for the arrest of one of the defendant's vessels as security for its claim for EUR 117,778.82. The defendant objected to the seizure of its vessel and applied to have the arrest set aside or, in the alternative, for the plaintiff to be required to provide counter-security. The defendant argued that it was not involved in the maritime transport industry, but merely acquired vessels to charter them to third parties for their commercial exploitation. The defendant also argued that the plaintiff's services had been supplied at the request of the charterers, and that it had not contracted for any services from the plaintiff, either directly or indirectly. The defendant finally contended that the plaintiff's services did not fall within the list of maritime claims under the Arrest Convention 1952.

The lower court rejected the defendant's arguments and held that the bank guarantee provided as alternative security for the vessel should be retained. The defendant appealed.

Held: Appeal dismissed and contested decision upheld.

As is well known, ship arrest is a precautionary procedure of a transitory nature. It is characterised by a summary procedure which requires the plaintiff to demonstrate the serious probability of the existence of its legal right (fumus boni iuris) and a justified fear that the natural delay in the final settlement of the dispute will cause irreparable damage or will be difficult to remedy (periculum in mora). The precautionary procedure is therefore a mere legal instrument of an incidental nature designed to safeguard the effectiveness of the action upon which it depends. Precautionary procedures are not adequate means to define rights, but only to protect them. Such proceedings are not intended to resolve substantive issues. They are intended, with a brief investigation, to safeguard the practical effects of the final decision to be taken in the action which must necessarily be brought.

Article 1.1.l of the Arrest Convention 1952 covers claims arising out of 'construction, repair or equipment of any ship or dock charges and dues'. The lower court interpreted the term 'ship or dock charges and dues' broadly to include the plaintiff's services. It noted that this term was not included in the project approved by the International Maritime Committee in Naples and was added at the 1952 Brussels Diplomatic Conference at the request of the British delegation, which argued that it should be included as a complement to the repair or construction claims of the ship repairer or builder. This interpretation, in addition to being directly derived from the analysis of the work of the said Diplomatic Conference, seems to be the most consistent with the context in which cargo handling costs are to be found, together with ship construction and repairs. However, given the poor accuracy of the terminology used in the authentic texts, it is to be considered that cargo handling expenses also include mooring costs and fees paid for loading or unloading goods, because they derive from typical ship use and contribute decisively to the pursuit of the ship's intended purpose. The inclusion of expenses related to ship loading and unloading and container handling services as 'maritime claims' and, in particular, as 'ship or dock charges and dues' in art 1.1.l of the Arrest Convention 1952 is in tune with the evolution that this legal precept has been undergoing. The court of first instance's interpretation is best suited to the historical evolution of the legal provision, the letter of the law and the nature of the services concerned. Accordingly, the defendant's argument in this regard must be rejected.

The lower court held that the defendant's vessel was properly arrested even if it was time chartered to a third party and if the charterer had contracted for the plaintiff's services. The court cited art 3.4 of the Arrest Convention 1952 which provides that 'in the case of a charter by demise of a ship the charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the charterer by demise, subject to the provisions of this Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claim. The provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship.' The lower court interpreted this provision as effectively allowing for the seizure of a ship on the basis of a claim for which a person other than its owner is liable, expressly referring to charters by demise and implicitly referring to other categories of lessees of the vessel. Case law and academic writing has also considered that time and voyage charterers are included in the normative provision insofar as they incur debts that give rise to one or more of the maritime claims provided for in the Convention. Otherwise, if the provision were to be restricted in its application to cases of demise charters only, the second sentence of art 3.4 of the Arrest Convention 1952 would be devoid of content. This interpretation by the lower court also seems to be correct.