According to the judgment under appeal (Nouméa Court of Appeal, 2 June 1997), Planmarine AG (Planmarine), a creditor of Blacksea Shipping Co (BLASCO), arrested the ship Kareliya in Nouméa to recover its debts in respect of unpaid rent of containers. The ship was owned by another company, Maddock Trading Co (Maddock), which successfully requested its release.

Planmarine criticised the Court of Appeal judgment for having granted this request on the basis that art 3.2 of the Arrest Convention 1952 provides that the holder of a maritime claim relating to a ship belonging to a company whose capital is entirely held by a person who also owns all the capital of another company that owns another vessel may proceed with the seizure of the second vessel, without having to prove a mingling of assets between these two companies or the fictitiousness of one or the other. In the present case, the Court of Appeal held that Planmarine's claim related to ships belonging to BLASCO, which Maddock claimed to be a State trading company. The Court merely noted that the ownership of the shares of Maddock was not established with sufficient certainty to be attributed to BLASCO, without investigating, as requested, whether Maddock had the State as its sole shareholder and if, therefore, the ship belonging to Maddock should not be presumed as belonging to BLASCO. This deprived the Court's decision of a legal basis with regard to art 3.2.

Further, the Judge, in assessing whether the arrested ship was the property of the person against whom the claim was invoked, was justified to take into consideration the appearance and simulation of affairs. In the present case, the Court of Appeal, while admitting that in appearance the State Land Fund of the Ukrainian State was the owner of the vessel, confined itself to holding that the evidence did not establish that BLASCO and Maddock were both an emanation of that State.

Held: Appeal dismissed.

Article 3.2 of the Arrest Convention 1952 is limited to stating that ships will be deemed to have the same owner when the ownership of all shares belong to the same person or persons. On the basis of this provision, Planmarine, the creditor of BLASCO, was not authorised to seize Maddock's vessel on the ground that the State of Ukraine, although not directly holding all the shares of the vessels to which the claim related and the seized vessel, held the entire capital of the two shipping companies that owned these vessels. Alleging that a State's aim in the creation of shipping companies was to limit the claims of its maritime creditors did not, in itself, demonstrate that these companies were fictitious and would only constitute emanations of that State, since they have their own identities.