This was an application made by Baltiyskaya Toplivnaya Kompaniya LLC (the applicant) to arrest the vessel Newnew Star 2, owned by AVM Oil Trade FZCO (the shipowner). The application was submitted on the basis that the shipowner failed to pay for fuel supplied on the vessel under a contract dated 1 March 2023. The applicant provided counter-security in the form of an independent guarantee from Kontur LLC for compensation for any damage caused by the arrest.

Held: The application is dismissed.

Interim measures are imposed by the commercial courts in accordance with Ch 8 of the Commercial Procedure Code of Russia (the CPC RF). Under art 99 of the CPC RF, the interim measures may be preliminary, ie imposed prior to the submission of the claim to the court or arbitral tribunal. These measures are aimed at ensuring the interests of the applicants before the submission of the claim.

According to s 41 of the Resolution of the Plenum of the Supreme Court of Russia No 15 dated 01 June 2023 (Resolution No 15), preliminary measures are imposed if general criteria for interim measures under art 90 of the CPC RF are met. Under s 45 of Resolution No 15, non-provision of counter-security cannot in itself be a reason to dismiss an application for interim measures.

Under art 90(2) of the CPC RF, interim measures are imposed:

• if the non-imposition of these measures may make it impossible or difficult to enforce the judgment; and
• if they prevent significant damage to the applicant.

Pursuant to art 92(2) of the CPC RF, the applicant should justify the reasons for the imposition of a particular interim measure.

Section 14 of Resolution No 15 provides that interim measures may be imposed only if they are justified. The particular measure is considered justified if it assists in enforcing the judgment.

The arrest of seagoing ships is regulated by Ch 23 of the Merchant Shipping Code of Russia (the MSC RF). Under art 388(1) of the MSC RF, the arrest of a ship is any detention or restriction of movement of the ship imposed while it is located within the Russian jurisdiction. It is imposed by courts, commercial courts, or competent arbitral tribunals. Per art 388(2) of the MSC RF, a ship may be arrested only for a maritime claim. According to Art 389 of the MSC RF, the list of maritime claims includes any claims relating to damage or loss of cargo, including luggage onboard the ship.

Therefore, courts should decide on the arrest of the ship for a maritime claim, taking into account the reasons for the imposition of interim measures under art 90(2) of the CPC RF. The court may arrest a ship only if the reasons in art 90(2) are met. Ship arrest may be imposed only if the substantive criteria, ie evidence of the existence of violated or disputed rights, and the procedural criteria stipulated in the CPC RF, are met.

The application did not include documents proving the applicant’s actual intention to bring the relevant claim to the Court. At the same time, upon studying the application, the Court concluded that the arrest of the ship was considered a means to put pressure on the shipowner since the applicant considered judicial enforcement of the claim against a foreign debtor an ineffective remedy. It was mentioned in the application that the arrest of the ship was aimed at inducing the shipowner to pay the debt. This reason for interim measures is not stipulated in the CPC RF.

The Court took into account that the arrest of a ship may cause its owner significant damage. There was no evidence that the interim measures are aimed at ensuring future judgment enforcement or that the applicant intended to submit its claim to the court. Moreover, there was no evidence of concealment of property by the shipowner.

On the basis of the above, the Court found that the arrest was unreasonable, and its imposition did not meet the requirements set forth in the CPC RF.