The facts of this appeal are set out in the first instance decision of The Anna H [1994] 1 Lloyd's Rep 287 (CMI2266) from which the defendants appealed. The parties accepted that the plaintiffs' claim was within the following provision of s 20 of the Supreme Court Act 1981 (UK) (the Act):

The Admiralty jurisdiction of the High Court shall be … jurisdiction to hear and determine … any claim for loss of or damage to goods carried in a ship …

The defendants argued that the plaintiffs had no right to arrest the vessel under the Arrest Convention 1952. They also argued that the Court had no jurisdiction. In relation to the Spanish plaintiffs, they argued that the case fell to be dealt with under art 7.2 of the Arrest Convention.

The defendants argued that the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (the Brussels Convention) should be construed as giving effect to an overriding policy and that the Arrest Convention is subject to, and qualified by that policy. As such, the Arrest Convention should be construed narrowly. They further argued that 'domestic law' in art 7 of the Arrest Convention refers to the Brussels Convention since the Brussels Convention has been incorporated into English law by the Civil Jurisdiction and Judgments Act 1982 (the 1982 Act). Article 7 provides:

(1) The Courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts, or in any of the following cases namely:

(a) if the claimant has his habitual residence or principal place of business in the country in which the arrest was made;

(b) if the claim arose in the country in which the arrest was made; …

(2) If the Court within whose jurisdiction the ship was arrested has no jurisdiction to decide upon the merits, the bail or other security given in accordance with Article 5 to procure the release of the ship shall specifically provide that it is given as security for the satisfaction of any judgment which may eventually be pronounced by a Court having jurisdiction so to decide …

Both parties relied upon The Deichland [1990] 1 QB 361 (CA) (CMI2233) for support. The plaintiffs relied on its affirmation of a plaintiff's entitlement to invoke the Arrest Convention notwithstanding that the person liable in personam may be domiciled in a country which is a party to the Brussels Convention: The Deichland 385. The defendants argued that the plaintiffs' arrest of the vessel did not come within the provisions of the Arrest Convention and so, as in The Deichland, the Court should rule in favour of the defendants. They contended that the plaintiffs arrested the vessel not to secure any claim because the plaintiffs did not need to arrest the vessel to obtain security, and that the plaintiffs arrested the vessel to found jurisdiction. They argued that unless it can be shown that the arrest was necessary to obtain security, the arrest did not fall within the definition in art 1 of the Arrest Convention.

Separately, the plaintiffs argued in the alternative that the defendants had submitted to the jurisdiction of the Court.

Held: Appeal dismissed.

The Court did not find it necessary to rule on whether the defendants submitted to the jurisdiction of the Court.

Hobhouse LJ: This is a further case in the series following on from the decision of The Deichland. The Arrest Convention is a Convention referred to in art 57 of the Brussels Convention. Both Conventions are to be read together. Their relationship was discussed in The Nordglimt [1988] QB 183 (CMI2230) and The Po [1991] 2 Lloyd's Rep 206 (CA). Nothing turns upon any difference between what was said in those cases. Their relationship is that of the special to the general. Where special provision is made in the special Convention, it shall govern; where no special provision is made, the general provisions of the Brussels Convention apply. Accordingly, within its scope, the Arrest Convention governs the jurisdiction of the Admiralty Court and 'prevail[s] over' the Brussels Convention: see the Report by Professor Dr Peter Schlosser on the Convention of 9 October 1978 on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice [1979] OJ C59/71 (Schlosser Report) 140. The Arrest Convention qualifies and must be read as part of the Brussels Convention (art 57 of the Brussels Convention; Schlosser Report 140). There is no reason to impose any restriction on the effect of art 57 of the Brussels Convention or the continuing efficacy of the Arrest Convention. The defendants' argument is contrary both to the literal language of art 57 of the Brussels Convention and the travaux préparatoires. The intention is that the jurisdiction available under the Arrest Convention should be preserved and that it should continue to apply even though the owner of the ship may be domiciled in another member State.

Nevertheless, the jurisdiction referred to in the Arrest Convention can only be exercised in rem; it does not confer any jurisdiction in personam. The jurisdiction in personam is indisputably governed by the Brussels Convention. The rule in The Dictator [1892] P 304, 319-320, which pins in personam liability onto a defendant entering an appearance in an action in rem, creates a notional situation which conflicts with art 3 of the Brussels Convention. This rule should be implicitly qualified by the 1982 Act. Meanwhile, the Arrest Convention gives the Admiralty Court the jurisdiction to arrest the ship and give judgment against the ship. It does not give the Court jurisdiction to give a judgment in personam against the owner of the ship. Thus, the aforementioned conflict is independent of the Arrest Convention.

The Arrest Convention was agreed to by the Contracting States with a view to determining by agreement certain uniform rules of law relating to the arrest of seagoing ships. Article 2 provides that:

a ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim, but in respect of no other claim.

'Maritime Claim' is defined in art 1 and the requisite relationship between the claim and the ship to be arrested is set out in art 3. These provisions are given effect to in ss 20 and 21 of the Act. The scope of the Arrest Convention is defined by the definition of the word 'arrest' in art 1.2:

'Arrest' means 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.

Article 4 makes it clear that the arrest may only take place under the authority of the court or other judicial authority in the country of arrest. Article 5 provides for the release of arrested vessels on provision of bail. Articles 5 and 6 provide that all questions relating to the arrest are to be decided in accordance with the law of the arresting country. The jurisdiction of the arresting court after the arrest is governed by art 7.

The defendants' argument based on the purpose of the arrest is rejected. It is incorrect to say that unless it can be shown that the arrest was necessary to obtain security, the arrest did not come within the definition in art 1 of the Arrest Convention. The definition is concerned with the character of the legal process, not with the motivation of the party that initiates the process. It is therefore irrelevant that the plaintiffs might be motivated by a need to satisfy jurisdictional requirements. It is also irrelevant that the plaintiffs chose to release the vessel shortly after arrest.

Neither the 1982 Act nor the Brussels Convention affects the admiralty jurisdiction in rem of the English courts.

Hoffmann LJ: The primary purpose of the Arrest Convention was to agree on the circumstances in which a ship flying the flag of one Contracting State could be arrested in the jurisdiction of another Contracting State. In summary, it was agreed that the right of arrest should exist only in respect of maritime claims (contrary to the previous law in certain Continental countries) but should extend to sister ships (contrary to the previous law in the United Kingdom). But art 7 of the Arrest Convention 1952 also dealt with the jurisdiction of the country of arrest to determine the merits of the claim. The reason for art 7 was that some countries, notably France, declined to assume jurisdiction solely on the ground that the ship had been arrested within their territory. In the United Kingdom, on the other hand, service on the ship to establish jurisdiction was a precondition of a valid arrest.

Article 57 of the Brussels Convention and the Arrest Convention preserve the jurisdiction of England as 'the country in which the arrest was made' when, among other cases, it has jurisdiction under its domestic law. This in turn requires an arrest. But under English domestic law, jurisdiction depends upon service, not arrest. Shipowners commonly provided security and undertook to accept service to stave off an arrest.

Does the Arrest Convention require that: (1) the legal consequence of judicial detention of the ship should be that it becomes security for a maritime claim; or (2) does it require that the plaintiff's commercial motive must be to obtain security? (1) is correct. The Arrest Convention did not oblige Contracting States under international law to ensure that a plaintiff who arrested a ship did not have sufficient other security. Article 5 of the Arrest Convention states that the Court 'shall permit the release of the ship upon sufficient bail or other security being furnished', but says nothing about refraining from arrest because security has been provided in advance. Article 6 leaves to national law the question of the remedies (if any) for wrongful arrest and the rules of procedure for arrest. The purpose of the Arrest Convention was to harmonise the laws of the contracting States as to the kinds of claims which could form the basis for an arrest, and the words 'to secure a maritime claim' are part of the scheme to prevent the use of arrest for securing other kinds of claim.

The Court should read art 7 of the Arrest Convention into the Brussels Convention and then try to make coherent sense of the composite document. There is nothing in the rest of the Brussels Convention to suggest that the justification for an exception to art 2 of the Brussels Convention is that the plaintiff has obtained security for its claim. Articles 2, 3, and 24 of the Brussels Convention point to the conclusion that the admiralty jurisdiction exception to art 2 of the Brussels Convention is based on two identifying features that do not concern the obtaining of security: (a) that the property attached is a ship; and (b) that the claim is a maritime claim. Accordingly, the ship was arrested within the meaning of the Arrest Convention and the Court had the jurisdiction conferred by art 7 of the Arrest Convention.

'[D]omestic law' under art 7 of the Arrest Convention is to be contrasted with treaty law, ie the rules embodied in international Conventions. The Brussels Convention is treaty law, not domestic law. It has been given statutory force because under English law, as treaties are not self-executing. But this is not the law of all member States. '[D]omestic law' cannot have been intended to have different meanings in member States according to whether or not their constitutions require that a treaty shall be enacted by the legislature.