Unifeeder and MS 'Kallisto' Schiffahrtsgesellschaft MBH & Co KG (KS) entered into a one year charter contract on 23 April 2014. According to the terms of the contract, KS was the owner of the ship Calisto and Unifeeder was the charterer.  On 7 October 2014 Unifeeder ordered 450 tonnes of fuel from OW Bunkers (OWB). The fuel was to be delivered directly to the Calisto.  Following this order, OWB bought the fuel from OOO Komtreyd (OOO), which delivered it directly to the Calisto on 14 October 2014 and charged OWB USD 193,050. On 7 November 2014 OWB filed a petition in bankruptcy. The OOO then notified KS that, as the fuel had not yet been paid for, it remained OOO's property. 

By an order dated 1 June 2017 of the President of the Commercial Court, OOO was granted authorisation to proceed with the arrest of the Calisto for the guarantee of a debt of USD 193,050 or for its equivalent value, or to file against the master or the owner.  The arrest was immediately performed. KS applied to annul the authorisation of the arrest. OOO argued that the arrest of the ship should be maintained under the terms of the Arrest Convention 1952.  

The issue in this case is whether OOO has a maritime claim or a privileged claim against KS. If so, OOO may arrest the Calisto. 

Held: The International Convention Relating to the Arrest of Sea-Going Ships 1952 (the Arrest Convention 1952) applies.  According to art 3.1 a claimant may arrest the particular ship from which the maritime claim arose. Moreover, art 3.4 provides that, in the case of a charter by demise of a ship, the charterer is liable under a maritime claim relating to that ship and not the registered owner. As a consequence, the claimant may arrest such a ship. This provision applies to all cases in which a person other than the owner of the ship has a maritime claim. Nothing in the Arrest Convention shall be construed as creating a right of action, if this right would not arise under the law applied by the Court where the proceedings were filed. In other words, in accordance with art 9, the arrest can be carried out if French law permits it. 

According to the Arrest Convention, the only ship which may be arrested is the debtor’s, except where the creditor - in our case the claimant - invokes a privileged claim.  First, where the claimant has a privileged claim, he should raise the privilege within the prescribed time. According to art 9 of the Arrest Convention, for supplies - in this case fuel - the deadline shall not be more than six months and the period starts when the claim arises. Moreover, art 2.5 of the MLM Convention 1926 requires that the claim shall originate from a contract or a transaction performed by the master. Although the master had here signed the delivery note, this did not amount to a fuel order. As a consequence, there is no such contract or transaction. Considering that the companies introduced their requests before the Court on 1 June 2015, the timeframe is ended. As a consequence, even if it was proved that OOO had a privileged claim, the action was no longer possible. As a consequence, the Court held that OOO has no privileged claim against KS.  The concept of a 'maritime claim' is defined in art 1 of the Arrest Convention 1952 and it arises from damage caused by any ship either in collision or otherwise. The application of art 1 supposes the occurrence of an event. Therefore, the consumption of fuel that has already been delivered shall not be considered to amount to the appearance of a maritime claim. Considering the previous facts, the Court could not authorise the arrest. The Court annulled the arrest order.