This is an appeal in cassation from Gerechtshof Den Haag, 13 November 2018, CMI318.

On 15 October 2014 V Marine Fuels BV (V Marine) in Rotterdam supplied fuel oil to the Forest Park, which was owned by Dexhon Shipping Inc (Dexhon) and managed by Zodiac Maritime Ltd (Zodiac). On 13 January 2015 V Marine effected an attachment on the Forest Park in Safi, Morocco, to obtain security for the enforcement of its claim with regard to the supply of fuel oil. The attachment was lifted on 16 January 2015 against security from Dexhon and Zodiac. As V Marine did not commence an action on the merits following the attachment and the posting of security, Dexhon and Zodiac initiated proceedings in the Netherlands to obtain a negative declaration regarding the validity of V Marine's claim. The jurisdiction of the Dutch courts to hear that action was not in dispute. What was in dispute, however, is whether the Dutch courts have jurisdiction to hear the action for a provisional judgment which would order V Marine to co-operate in obtaining a release of the amount paid into court in Morocco as security for the lifting of the attachment, in exchange for the posting of alternative security by Dexhon and Zodiac on the Rotterdam Guarantee Form.

Held: The attachment in Morocco was effected on the basis of the Arrest Convention 1952. That Convention must be construed on the basis of the principles of the Vienna Convention on the Law of Treaties 1969.

The text of art 5 Arrest Convention 1952 does not say in so many words that the authority referred to in this provision to permit release from arrest is granted exclusively to the court or other appropriate judicial authority within whose jurisdiction the ship has been arrested. On the other hand, the article does not say in as many words either that the authority to permit release from arrest is also granted to courts of other State Parties, or that the authority of those other courts to permit the release from attachment is left unaffected.

The context, in particular the connection between art 5 and arts 4 and 6 Arrest Convention 1952, indicates that the jurisidiction referred to in art 5 Arrest Convention 1952 was meant to be exclusive.

The travaux préparatoires of art 5 Arrest Convention 1952 do not contain any indication that this provision should be construed differently than can be concluded from its context as set out before.

Finally, the prevailing opinion in case law and literature of state parties also offers support for this construction of art 5 Arrest Convention 1952.

Literally, art 5 Arrest Convention 1952 only covers actions regarding 'the release from arrest', or 'the sufficiency of the bail or other security'. However, the connection between arts 5 and 6 Arrest Convention 1952 - in particular the provision that 'all matters of procedure which the arrest may entail' shall be governed by the law of the forum of the arrest - is a ground to construe art 5 Arrest Convention 1952 in such a manner that also actions closely connected to those referred to in the provisions can only be submitted to the forum of the arrest. These would include actions for the release, reduction, increase or some other alteration of the substitute security.

It would not line up with this exclusive jurisdiction of the forum of the arrest to hear those particular actions, to accept that the court of another State Party can hear actions which would interfere with that exclusive jurisdiction. Such interference would exist if the latter court would order a party to take a certain position in an action on the basis of art 5 Arrest Convention 1952, or to co-operate in reaching a certain outcome in such an action.

This construction of art 5 Arrest Convention 1952 entails that for those actions the jurisdiction provisions of the EU Regulation 1215/2012 (Brussels I Recast) cannot be applied. After all, it follows from art 71 of Brussels I Recast and the case law of the Court of Justice of the European Union that art 5 Arrest Convention 1952 excludes the application of Brussels I Recast in those cases covered by the latter provision.