This case involved the prejudgment attachment of the tug Fako Namme Menyoli II (the arrested tug) belonging to Fako Transport & Shipping Co Ltd (Fako) by Kotug Zes BV (Kotug) as security for the recovery of a claim by Kotug in connection with the chartering of two of its tugs, the RT Margot and the RT Zoë, first to Fako and then to Cape Limboh Towing & Mooring Co Ltd (Cape Limboh), an associated company of Fako. Fako demanded the lifting of the attachment; Kotug counterclaimed for summary judgment on an urgent advance payment.

Held: The application for release of the arrested tug is dismissed. The urgency of the counterclaim is rejected.

The arrested tug, presently in the Netherlands, flies the flag of Saint Vincent and the Grenadines. That country and the Netherlands are both parties to the Arrest Convention 1952. Article 2 of that Convention provides that attachment can be made for a maritime claim. This is the case here, as Kotug's claim against Fako arises from the time charter agreement between them. There is no requirement that the maritime claim relates to the arrested tug. Kotug may attach any vessel of Fako to secure its claim (cp Stromboli M/Costanza M, Hoge Raad, 9 December 2011 (CMI112)). Under English law, which is applicable to Kotug's claim, the position is no different; any vessel of the time charterer Fako can be attached for a claim arising under the time charter agreement.

Kotug's claim is not summarily unsound. Pursuant to the time charterparty, Kotug is entitled to receive the net amount of hire. Deductions made by third parties to whom Fako paid the hire can therefore not be deducted by Fako from the amount it owes Kotug. Nor can payments shown to be earmarked in connection with the agreement between Kotug and Cape Limboh be deducted. Lifting the attachment against the provision of adequate substitute security is out of the question, as Fako is unable to do so.

The interim relief Judge has international jurisdiction in respect of the advance payment claimed in the counterclaim because there is sufficient connection between the claims in the principal action and in the counterclaim action. An arbitration clause does not prevent the claiming of an advance payment in summary proceedings. However, caution should be exercised; granting a claim for money in interim relief requires immediate urgency. That urgency is lacking here because the value of the arrested tug is many times higher than the claimed advance payment and therefore provides ample security for recovery.