This case arose from a claim by the plaintiff in its action before the Multi-Member Court of First Instance of Piraeus for the sum of USD 1,633,147 as the sum due from the sale of fuel. The Multi-Member Court of First Instance of Piraeus issued the following judgments: (1) 4400/2001, which declared the hearing inadmissible on the ground that the second defendant was not summoned and postponed argument on the claim against the first defendant; (2) 1419/2012, declaring inadmissible the argument on the claim against the first defendant for non-summoning and ordering the reopening of arguments to provide opinions on the applicable foreign law; (3) 2706/2013 a final decision admitting the claim in part. On the appeal of the second defendant and the plaintiff's subsidiary cross-appeal, the final judgment of the Three-Member Court of Appeal of Piraeus 107/2015 dismissed the defendant's appeal and declared the plaintiff's subsidiary appeal as having no purpose. The parties both brought the present appeal against that decision.

Held: The decision of the Three-Member Court of Appeal of Piraeus 107/2015 is rejected and the case is referred for further adjudication in the same Court of Appeal, composed of judges other than those who rendered the appeal.

Article 7.1 of the Arrest Convention 1952, which was ratified by Greece in accordance with 4570/1966, states:

(1) The Courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts, or in any of the following cases namely:

(a) if the claimant has his habitual residence or principal place of business in the country in which the arrest was made;

(b) if the claim arose in the country in which the arrest was made;

(c) if the claim concerns the voyage of the ship during which the arrest was made;

(d) if the claim arose out of a collision or in circumstances covered by article 13 of the International Convention for the unification of certain rules of law with respect to collisions between vessels, signed at Brussels on 23rd September 1910;

(e) if the claim is for salvage;

(f) if the claim is upon a mortgage or hypothecation of the ship arrested.

Further, art 1.2 of that Convention states that '"Arrest" means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.' It should be noted that the above provision of the Convention takes precedence over EU Regulation 44/2001, art 71(1) of which provides that 'This Regulation shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments'. It further appears that the Convention, by using the term 'arrest', means detention or immobilisation, that is, the physical commital of a ship, upon the authorisation of a court or other competent judicial authority to secure a maritime claim, not including the seizure of a ship in execution of a court order or other enforcement order. This means that the courts in the country where the seizure was sought but did not complete the foreclosure have jurisdiction over the main case, and that the courts of the country where the seizure took place and the ship is subsequently replaced by bail retain their jurisdiction. However, in order to establish jurisdiction under this exceptional provision, one of the additional conditions required by the Convention has to apply.

In the present case, with regard to the basis of the jurisdiction of the Greek courts, the contested decision dismissed the claim against the second defendant on the inadmissibility of the action on the ground of lack of jurisdiction. The plaintiff is a trading company with an office in Greece and dealing, inter alia, with trading of petroleum and petroleum products, the business of supplying ships with liquefied petroleum and other petroleum products, delivering them to the port of delivery of the vessel being supplied. The first defendant company (not a party to the present proceedings) is based in the Marshall Islands, dealing in the marketing of petroleum products and operating its own or third party vessels on its own account mainly for the purpose of transporting petroleum products. The second defendant is the owner of an Italian flagged cargo ship that was time chartered to the first defendant. The time charterparty was governed by English law. The plaintiff supplied fuel to the first defendant.

In the present case, the Court of Appeal held that the legal requirements for the establishment of an in rem action under English law against the ship in question were satisfied, thereby confirming the first instance decision. The second defendant argued that the judgment incorrectly applied English law by holding that the ship was liable for the time charterer's debts, since according to the correct application of English law the ship is liable only in the case of bareboat (demise) chartering and only if the relevant charter contract is in force at the time of filing the lawsuit. The Court of Appeal infringed, by incorrect interpretation and application, the provisions of s 21(4) of the Senior Courts Act 1981 (UK), which only allows the institution of an action in rem for ship fuel and other supplies against a ship if the person who would be liable on the claim is the owner or demise charterer of that ship when the action is brought. In the present case, however, it was accepted that the charter in question was entered into on 28 July 2007 for a period of 24 months, and the lawsuit was filed on 1 March 2011 after its expiry, and that the charter was not by demise. Accordingly, this ground of appeal is well founded.