Monjasa A/S (Monjasa), a bunker supplier, sold fuel to Unitaes Energy Sources Co Ltd (Unitaes). The fuel was loaded onto the Libyan-flagged Alhani, a vessel owned by Deep Sea Maritime Ltd (Deep Sea), and time chartered to Unitaes/Babecca Business Links Ltd (Babecca). Some of the fuel was transhipped onto the vessel Marida Marguerite on an instruction given to the master of the vessel by Babecca to proceed without producing bills of lading, subject to delivery of a letter of indemnity by Babecca to Deep Sea.

Monjasa ordered the seizure of the Alhani on 2 April 2012 at the port of Bizerte, Tunisia. Deep Sea obtained the release of the vessel against the provision of a bank guarantee. The Tunisian courts declared themselves incompetent to rule on the matter. Monjasa also brought a payment action in China against Unitaes on the basis of their sales agreement and obtained a judgment in its favour in 2016.

The execution Judge of Le Havre Tribunal de Grande Instance subsequently allowed Monjasa to proceed with the protective seizure of the Alhani for security and payment of its claims against Deep Sea and/or Babecca and/or Unitaes for USD 4,000,000 or its equivalent in EUR. The Judge decided on 9 January 2017 that the release of the seizure could be ordered, subject to the delivery of a bank guarantee of the same amount issued by a first class French bank. The Alhani was seized on 18 January 2017, immediately after it docked at the port of Le Havre. On 27 January 2017, the execution Judge of Le Havre Tribunal de Grande Instance ordered the lifting of the precautionary seizure of the Alhani against the deposit of the sum of USD 4,000,000 USD, or its equivalent in EUR, with the President of the Paris Bar, who was appointed as the legal receiver.

Deep Sea appealed. Deep Sea argued that art 3.3 of the Arrest Convention 1952 provides that a 'ship shall not be arrested, nor shall bail or other security be given more than once in any one or more of the jurisdictions of any of the Contracting States in respect of the same maritime claim by the same claimant'. Article 5 of the Convention provides that the 'Court or other appropriate judicial authority within whose jurisdiction the ship has been arrested shall permit the release of the ship upon sufficient bail or other security being furnished'. Relying on these provisions, Deep Sea argued that the previous arrest of the vessel in Tunisia, and the sufficient guarantee granted in return for its release, precluded the new seizure in Le Havre.

Held: Appeal partially successful.

It is not disputed that the protective seizure in Le Havre is governed by the Arrest Convention 1952. Article 8.2 provides that a 'ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in article 1 or of any other claim for which the law of the Contracting State permits arrest'. The claims invoked by Monjasa are maritime claims as defined in arts 1.1.e, 1.1.f and 1.1.k of the Convention.

The prohibition enacted by art 3.3 of the Convention of seizing a ship more than once in the same jurisdiction of one or more Contracting States for the same claim and by the same claimant is limited to seizures made in Contracting States. Even if the first seizure of the same vessel was made by Monjasa as security for the same debt, it was made in Tunisia, a country that is not a signatory to the Convention, so this prohibition does not apply.

Article 5 of the Convention provides that the Court or any other competent judicial authority in the jurisdiction of which the vessel has been seized will grant the release of the seizure when a sufficient bond or guarantee has been provided. It further provides that in the absence of agreement between the parties on the sufficiency of the surety or the guarantee, the Court or the competent judicial authority will fix the nature and the amount, and that the request for release of the seizure subject to such a guarantee cannot be interpreted as an acknowledgment of liability. From reading art 5 in its entirety, it follows that the sufficiency of the guarantee is that of the guarantee to be offered to the Judge or to be defined by the Judge to replace the immobilization of the vessel resulting from the seizure. The existence of the guarantee previously granted in return for the release of the protective seizure in Tunisia, a State that is not a signatory to the Convention, does not in itself constitute an obstacle to the right to re-seize the vessel in Le Havre, and does not affect in itself the validity of the seizure, but only has an impact on the assessment of the security to be provided in return for the release of the detention of the newly seized vessel.

In these circumstances, Deep Sea is not justified in contesting the right for Monjasa to proceed with the protective seizure of the Alhani as authorised by the order of 9 January 2017. The judgment will therefore be reversed in that it ordered the withdrawal of this order. The judgment will be confirmed in that it ordered the lifting of the protective seizure against the deposit of the sum of USD 4,000,000 or its equivalent in EUR on the day of deposit of the said sum into the hands of the President of the Paris Bar, appointed as legal receiver, which constituted a relevant and sufficient guarantee.

Monjasa cannot legitimately claim an excessive accumulation of security from Deep Sea, taking advantage of the absence of prohibition of the accumulation of seizures resulting from the fact that Tunisia is not a Member State of the Arrest Convention 1952. Once it has obtained a sufficient guarantee for its claim in France, Monjasa cannot argue for the maintenance of the Tunisian guarantee on the basis that it was insufficient, even though this now generates unnecessary cost for Deep Sea. The claim guaranteed by the two successive arrests is the same but the Tunisian security is lower in amount than the French guarantee. Consequently, provision should be made for the guarantee currently ordered to replace the guarantee previously provided in Tunisia.

The parties disagree on the extent of the security to be provided. Deep Sea, by reference to arts 3 and 9 of the Convention, maintains that it, as the shipowner, can only be held to guarantee a claim for which it would be recognised as being personally liable, and not the claims against Babecca/Unitaes in their capacity as time charterers. Monjasa, relying on art 3.4 of the Convention, claims that the security must also apply to the claims against Babecca/Unitaes. Here, Monjasa's claims for the 'shortage' of bunker fuel must be analysed as arising from a contract entered into by the master of the ship outside his home port by virtue of his legal powers for the real necessity of the continuation of the voyage. This claim, even if it is against the charterer and not the owner, enjoys a maritime lien over the ship by application of art 2.5 of the MLM Convention 1926. It is thus covered by the seizure and the security which replaces the immobilization of the vessel, even if it arises exclusively on the charterers' account.

The remaining question relates to Monjasa's maritime claim for the damage resulting from the misdelivery of cargo. Due to the lack of identification of the carrier on the bills of lading, Monjasa may have a right of action against, on the one hand, Deep Sea, the shipowner and apparent carrier, or, on the other hand, Babecca/Unitaes as the charterer/actual carrier that gave the order for unloading without a bill of lading. There is no solidarity between these carriers and the actions are in the alternative. In addition, the security that Monjasa alleges for its claim against Babecca/Unitaes can only be found in the right to proceed in this capacity in respect of the protective seizure of the vessel on an application of the Arrest Convention 1952.

Article 3.1 of the Convention provides that '[s]ubject to the provisions of para. (4) of this article and of article 10' (in reality art 9), a claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship. Article 3.4 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.' In other words, the claimant who avails itself of a maritime claim against a time charterer can proceed to the precautionary seizure of any vessel of the charterer, or to a seizure against the shipowner even though it is not a debtor, but this can only relate to the ship to which the claimant's claim relates.

Article 3.1 lays down the general principle of the possibility of seizing a ship belonging to the owner as security for a maritime claim relating to one of the ships in its fleet. In art 3.4, the possibility of seizing a vessel as security for a maritime claim existing, not against the shipowner, but against a third party, including in particular the time charterer, is limited to the vessel to which the claim relates. In this sense, art 3.4 is only a variation of art 3.1, so that the words '[s]ubject to the provisions of para. (4) of this article and of article 10' (in reality art 9) in art 3.1 necessarily extend to art 3.4.

Article 9 of the Convention provides that '[n]othing in this Convention shall be construed as creating a right of action, which, apart from the provisions of this Convention, would not arise under the law applied by the Court which was seized of the case, nor as creating any maritime liens which do not exist under such law or under the Convention on maritime mortgages and liens, if the latter is applicable.' The second sentence of this article is applicable only in the event that the seized vessel has changed ownership, and is explained in particular by the fact that, on an application of art 3.1, the owner of the seized vessel must be the owner of the ship to which the claim relates at the time when the maritime claim arose. It is irrelevant in the present dispute, as the vessel Alhani is still the property of Deep Sea. It follows from the first sentence of art 9, which is of general scope, that no provision of the Convention, including in particular art 3.4, can confer on a creditor, acting in France, more rights than French law already confers on that creditor. However, French law does not allow the seizure of property to the detriment of a person who is not itself a debtor to the seizing creditor, except in the event of a lien over the seized property.

Contrary to what Monjasa maintains, the combined application of arts 3 and 9 does not have the effect of making the Convention 'transparent', and does not render pointless art 3.4, which remains to define the conditions under which a preventive seizure of a ship may be practised against a charterer. In these circumstances, provision should be made for the security of the claim brought by Monjasa against Babecca/Unitaes to be limited, in respect of Deep Sea, to the extent to which it generates a maritime lien against the vessel. The judgment is to be amended in this respect.

Monjasa must initiate (or continue) an action before the competent Court in order to obtain a judgment on its maritime claim against Deep Sea, and initiate an action before the competent Court in order to obtain a judgment on its maritime claim for the supply of the bunkers against Babecca/Unitaes in their capacity as charterers, within a period of one month following the service of this judgment, under the sanction provided for by art 7.4 of the Arrest Convention 1952.

[See further Deep Sea Maritime Ltd v Monjasa A/S [2018] EWHC 1495 (Comm) (CMI154).]