This was an appeal against an order of the Court of first instance confirming the arrest of the ship Boraq on an application by ST Engineering Marine Ltd in a charterparty dispute. Inter Shipping SARL, the owner of the ship, argued that the arrest violated the interpretation and correct application of art 5 of the Arrest Convention 1999, arguing that the ship had not been released from an earlier arrest in Morocco, nor had any substitute guarantee been provided in that jurisdiction and that, therefore, the Arrest Convention 1999 did not allow the ship to be re-arrested for the same maritime claim in Spain. Secondly, the appellant alleged that the subsequent arrest infringed the institution of res judicata, public order, and international lis pendens. For a subsequent arrest to be possible, both under the Arrest Convention 1952 and the Arrest Convention 1999, it was necessary that the ship had been previously released through the adequate provision of sufficient guarantee or surety before the seizing court or tribunal and that, due to supervening causes and prior evidence by the creditor, this guarantee or surety was insufficient or had simply been cancelled. In this case, it was proven by the declaration of the appellant's Moroccan lawyer that the ship was still seized by the Court of Tangier and that the appellant had not provided a guarantee in that procedure.

Held: Appeal dismissed.

Article 5 of the Arrest Convention 1999 provides:

Right of rearrest and multiple arrest

1. Where in any State a ship has already been arrested and released or security in respect of that ship has already been provided to secure a maritime claim, that ship shall not thereafter be rearrested or arrested in respect of the same maritime claim unless:

(a) the nature or amount of the security in respect of that ship already provided in respect of the same claim is inadequate, on condition that the aggregate amount of security may not exceed the value of the ship; or

(b) the person who has already provided the security is not, or is unlikely to be, able to fulfil some or all of that person’s obligations; or

(c) the ship arrested or the security previously provided was released either:

(i) upon the application or with the consent of the claimant acting on reasonable grounds, or

(ii) because the claimant could not by taking reasonable steps prevent the release.

2. Any other ship which would otherwise be subject to arrest in respect of the same maritime claim shall not be arrested unless:

(a) the nature or amount of the security already provided in respect of the same claim is inadequate; or

(b) the provisions of paragraph 1 (b) or (c) of this article are applicable.

3. 'Release' for the purpose of this article shall not include any unlawful release or escape from arrest.

In order for a re-arrest to take place, in addition to the requirements of art 5 of the Arrest Convention 1999, one must proceed from the assumption that an arrest of the vessel has previously taken place, either under the Arrest Convention 1999 itself, or under the Arrest Convention 1952, if the 1999 Convention is not applicable, as is the case with the Kingdom of Morocco, and it must be a ship arrest that responds to the definition of arrest that is contained in these Conventions.

The Arrest Convention 1999, art 1.2, contains the following definition: '"Arrest" means any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument.' In other words, there must be an immobilisation or restriction on the ship's departure, and not any other substitute precautionary measure. Similarly, the Arrest Convention 1952 in art 1.2 defines 'arrest' as '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'.

Therefore, even if the Court of Tangier says that its measure is adopted under the Arrest Convention 1952, given that immobilisation of the ship was not ordered, which is the concept or definition of arrest in the Convention, this Court cannot understand that there has previously been an arrest of the ship in accordance with the definition in both Conventions that prevents a subsequent arrest from being granted in accordance with the Arrest Convention 1999 for the same maritime claim. And what is more, the conditions that the 1999 Convention itself establishes in art 5 to be able to re-arrest a ship for the same maritime claim, refer to cases in which the arrest has been released, not due to illegal departure or release of the ship, but for having provided a guarantee which is insufficient. In this case, as the appellant insists, no guarantee has been given to the Court of Tangier. Far from benefiting the appellant's cause, this argument harms it. Article 4 of the 1999 Convention allows the release of a ship that has been arrested when security has been provided in a reasonably satisfactory manner, unless it has been arrested to respond to any of the maritime claims listed in arts 1.1.s and 1.1.t.

Here, it is not the case that the ship has been released due to the provision of a guarantee, but rather that the ship has not been immobilised. Therefore, there was no previous ship arrest which prevents a re-arrest under the applicable Convention, and there was no infraction or incorrect interpretation of art 5 of the 1999 Convention by the Court of first instance. Res judicata is inapplicable here since there has been no previous ship arrest in accordance with the 1952 Convention (or the 1999 Convention).