This case concerned an agreement dated 7 December 2007 between Augusta (Italy) and Furtrans (Türkiye) on the basis of which Furtrans was to complete the construction of the Stromboli M and deliver it to Augusta. During the completion of the construction the ship was in the ownership of Furtrans. Augusta made a partial payment of the total contract price. Delivery was to take place on 4 February 2010. On that date Augusta refused to take delivery of the ship because of alleged deficiencies and failed to pay the remaining installments of the contract price. To obtain security for its claim for the remainder of the contract price Furtrans effected an attachment in Amsterdam on 24 February 2010 on the Costanza M. owned by Augusta. The Costanza M was encumbered with a ship hypothec for the benefit of a third party. For the same claim Furtrans also effected an attachment on one of Augusta's ships in France, which attachment was lifted by a French court on 5 March 2010. In interim measures proceedings Augusta demanded the lifting of the attachment on the Costanza M. The Gerechtshof (Court of Appeal) Amsterdam lifted the attachment.

Held: The purpose of the Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships, Brussels, 10 May 1952, as is apparent from the very name thereof, is to provide a uniform regulation with respect to the conservatory arrest of sea-going vessels.The Arrest Convention provides that an arrest of a seagoing vessel may only be made in security for the maritime claims enumerated in art 1. Furtrans argues that its claim against Augusta constitutes a maritime claim, that is to say a claim arising from the construction of a vessel (art 1.1.l). The Court of Appeal has not given an opinion on whether this allegation was correct or not, and therefore in cassation it must be assumed to be valid.

Article 3 of the Arrest Convention stipulates which seagoing vessels may be arrested by the creditor of a maritime claim. In accordance with art 3.1 that can be, in so far as relevant for this matter, the vessel on which the claim arose and any other ship which is owned by the person who was, at the time the maritime claim arose, the owner of that particular ship in respect of which the claim arose. In addition, art 3.4 provides that if, in the event of a charter by demise it is the demise charterer who is responsible for a maritime claim arising on the vessel and not the owner, the creditor is allowed to arrest this vessel or any other vessel owned by the charterer, but that no other vessel of the owner may be arrested in security of this claim. The second section of art 3.4 adds that this - the provision referred to in the first section of art 3.4 - also applies to all cases in which a person other than the registered owner is liable for a maritime claim.

According to the Court of Appeal, the phrase 'a person other than the registered owner is liable in respect of a maritime claim' used in the second part of art 3.4, is deemed to mean an other person who can be considered equivalent to the (demise) charterer referred to in the first part of art 3.4, in the sense that this other person has the authority or the effective control over the vessel on which the claim arose and who, as such, is liable for the claim. Seeing that Furtrans has in this case kept the ownership of, and the effective power over, the constructed vessel, the Stromboli M, Augusta is not an 'other person' in this sense, according to the Court of Appeal. For this interpretation of the section of the article, the Court of Appeal referred to the travaux préparatoires of the Arrest Convention.

The text of the Arrest Convention - which is fundamentally decisive in this matter - does indeed not support the restrictive interpretation given by the Court of Appeal. After all, the second paragraph of art 3.4 reads that the first paragraph also applies to all cases in which a person other than the owner is liable for a maritime claim. In itself it would have made sense to incorporate this provision already in art 3.1 of the Convention or to make it the (main) provision in paragraph 4, while deleting the present first paragraph, but this does not mean that the text of the second part of article 3.4 should be interpreted in any other way than in accordance with its ordinary meaning. Nor does the latter follow from the other context of that provision or from the subject or purpose of the Convention, which, in as much as relevant in this matter, is not more than to regulate when a conservatory arrest of a seagoing vessel may or may not be made. It follows from the travaux préparatoires that the second part of art 3.4 was added later to the draft text of the Arrest Convention while at that same time the words 'subject to the provisions of the fourth paragraph of this article' were inserted (see pp 317 and 339 of the travaux préparatoires of the Arrest Convention which are published by the Comité Maritime International). This explains the wording of arts 3.1 and 3.4, in as much as relevant here, and thereby confirms, in so far, what follows from the text of the Convention.

Contrary to the Court of Appeal’s ruling, the above interpretation is confirmed by the travaux préparatoires. It is true that the proposal to add the second part to art 3.4, which was done by the Dutch delegation, was primarily explained by referring to the notion of the ship operator [reder] known under Dutch law, as the person who is principally liable for the maritime claims against the vessel and who does not necessarily have to be the owner of the vessel, but the explanation was not restricted to that. Having explained that this particular notion of ship owner includes more than the mere concept of the demise charterer as referred to in art 3.4 (at that point in time still art 3.5 of the draft Arrest Convention) and that therefore the proposed second part was to be added with the description 'any other person than the legal owner', the spokesman of the Dutch delegation continued the explanation to the proposal by adding: 'The same applies to all cases where a person other than the legal owner is liable in respect of a maritime claim. Of course, there are many people who are not owners, and their position must be considered. Therefore the proposal in respect of paragraph (I) and (V) of art 3 is to add to paragraph (V) the words "in respect of all cases where a person other than the legal owner is liable in respect of a maritime claim". I do not think that this proposal of ours can do any harm to anybody who is not a legal owner, and therefore no harm will be done by adopting it.' There is but one way to understand this statement and that is that this proposal - which was accepted by the other delegations - meant that an arrest may always be made if a person other than the legal owner is liable for the maritime claim and that in that event, the arrest may also be made of other vessels owned by him. This is also confirmed by the fact that, simultaneously with the proposal for the present second part of art 3.4, the Dutch delegation proposed to amend the wording of art 3.1 such that it would read that it would always be possible to arrest the vessel on which the claim arose and any other vessel owned by the debtor of that claim. After all, that proposal boils down to the same as the wording of the proposed second part of art 3.4 and because of its obvious redundancy it was withdrawn by the Dutch delegation, even prior to the deliberations on the draft Arrest Convention. It may also be pointed out - even though this can not play a role in the interpretation of the Convention - that the contents of the Convention were afterwards so summarized as well by the Dutch delegation members JT Asser and RP Cleveringa, who both state that the Arrest Convention makes it possible to arrest vessels owned by the debtor of the maritime claim (in NJB 1953, pp 756 and 758, and Zeerecht, fourth and last edition 1961, p 232, respectively).

As appears from the travaux préparatoires, during the deliberations on the draft, objections were raised to the possibilities to arrest which were created by art 3.4. The objection related to, in so far as relevant here, the ample possibility to make an arrest of the vessel on which the maritime claim arose, when the debtor of the claim is not the owner of the vessel. In that connection it was proposed to set as requirement that arrest is only possible in the event the creditor has the right of recourse or recovery in respect of the vessel for example on the basis of a right in rem. It can be understood from the travaux préparatoires that this proposition was rejected because the Arrest Convention solely regulates the possibility of conservatory arrest and not the possibility to have recourse against the vessel or to exercise any such right (art 9 of the Arrest Convention, in the draft instrument still art 10; compare also art 1 heading and art 1.2, and the first words of art 3.1). The rules of international private law determine that the latter possibility will be governed by applicable national law or uniform international law.

In accordance herewith art 3 of the Arrest Convention can be so explained that on the basis of the Arrest Convention an arrest is only possible if under the applicable law recourse against, or surrender of, the ship is a possible result of the arrest. Although to the letter of the Arrest Convention it is true that an arrest is also possible beyond this case, in that situation the arrest should really not be allowed to be made because there is no lawful interest, since there can be no follow-up. After all, according to the Arrest Convention the sole purpose of the arrest is to secure a maritime claim (compare again arts 9, 1, and 1.2).

The above interpretation of art 3 is in conformity with the interpretation of the Arrest Convention as accepted in many other States (cf F Berlingieri, Arrest of Ships. A Commentary on the 1952 and 1999 Arrest Conventions, 4th ed 2006, appendix II, question 7.2, pp 367-369). Seeing that this case is about uniform rules, agreed upon in an international convention, this carries weight in answering the question of interpretation which is in issue here.

In addition, this interpretation of art 3 is also in conformity with the comments made by the Dutch government during the parliamentary approval of the Arrest Convention. It was noted therein that the possibility to make an arrest of a sea going vessel for a maritime claim against a person other than the owner as accepted by the Supreme Court in HR 29 June 1979, LJN AC6656, NJ 1980/346, Schip en Schade 1979/82 'Odupon' – if for the claim a right of priority exists on the basis of a specific statutory provision, in the case of that decision the article 318r of the Commercial Code as it applied then - will continue to exist under the Arrest Convention (Parliamentary Papers II, 1981-1982, 17 110 (R 1192), number 1-3, p 6).

Assuming that the claim alleged by Furtrans is a maritime claim within the meaning of the Arrest Convention, the above leads to the conclusion that Furtrans did have the possibility to make the arrest mentioned above under 3.1.4, provided that, under the applicable law, it has the right to enforce its claim against the Costanza M. After all this ship belongs to Augusta who is the debtor of its claim.

The ruling of the Court of Appeal cannot be upheld. After referral, it will have to be investigated whether Furtrans’ claim is indeed a claim resulting from the construction of a vessel, constituting, on the basis of art 1.1.l a maritime claim within the meaning of the Convention and whether under the applicable law, Furtrans can enforce that claim against the Costanza M.