ITTC had a claim relating to towing services provided by the Sokna in October and November 1991. This claim was assigned to the defendant by ITTC. On 31 March 1999 the defendant applied for a provisional attachment on this vessel for this maritime claim. The plaintiff became the owner of the vessel on 6 January 1999. This transfer was registered on 14 January 1999 in the International Ship Register in Norway. The plaintiff filed opposition to this seizure. It maintains that this seizure could not be justified because it had become the owner of the ship after the maritime claim arose. Both the first judge and the Brussels Court of Appeal rejected this defence.

Held: Appeal allowed. Case returned to the Antwerp Court of Appeal.

Under art 3.1 of the Arrest Convention 1952 and art 1469(1) of the corresponding Judicial Code, provisional attachment may be made either on the vessel to which the claim relates or on any other vessel belonging to the person who was, at the time when the maritime claim arose, the owner of the vessel to which the claim relates. Precautionary seizure can be practised on the ship to which the maritime claim relates, whether it is the owner of the ship or another person who answers this maritime claim within the meaning of art 1468 of the Judicial Code.

Under art 9 of the Arrest Convention 1952, no provision of the Convention may be regarded as creating a right which, apart from the stipulations of that Convention, does not exist according to the law to be applied to the dispute and confers on the plaintiffs no resale right other than that granted by the latter law. This provision means that the Convention does not establish any right of personal claim and does not create any right of action on the ship.

It follows from these provisions that when the vessel to which the maritime claim relates is transferred subsequent to the creation of this maritime claim, the creditor can practise a precautionary seizure on this ship only if it has a resale right on that ship as a mortgagee or preferred creditor.