HSH Nordbank obtained a prejudgment attachment of the tanker Hero, owned by Hero Shipping Ltd (Hero Shipping), in order to obtain security for a claim arising out of a loan provided by HSH Nordbank. Later, Hero Shipping sent HSH Nordbank a communication stating: ‘For the purpose of receiving any legal documents we hereby elect domicile at the address or our agents’ (being Dynamic Port Agencies in Schiedam, the Netherlands) and told the captain of the Hero: ‘…on behalf of the owners that they elect domicile for all matters relating to the arrest of m.t. HERO, including, but not limited to, service of legal documents at: Dynamic Port Agencies ...’. HSH Nordbank demanded payment of the claim in provisional measures proceedings. The judge (at first instance) ruled that he did not have jurisdiction to give a ruling. HSH Nordbank appealed.

Held: The judge at first instance incorrectly considered that he could not base his jurisdiction on art 7.1.f of the Arrest Convention 1952 because it was not a claim based on a mortgage but merely for payment of a sum of money. It seems that a statement made by Hero Shipping led the judge to conclude that Hero Shipping contested that the claim was mortgage-based. That the ship was financed without a mortgage is unlikely by itself. Moreover, the mortgage registration was evidenced by the submitted registration certificate from the Maltese ship register.

Also incorrect was the view that the Dutch courts cannot base their jurisdiction on the Arrest Convention 1952 as this Convention would not apply to non-Convention ships, and Malta, where the Hero is registered, is not a party to the Arrest Convention 1952. Whilst applying the rules of the Vienna Convention on the Law of Treaties of 1969, the Rechtbank Rotterdam (Court of First Instance) concluded in its judgment of 14 March 2012 (Kaliakra, ECLI:NL:RBROT:2012:BV9334, CMI10) that the rules on jurisdiction of art 7.1.d of the  Arrest Convention 1952 also apply to the arrest of non-Convention ships. The grounds given by that court, which were endorsed by the Gerechtshof (Court of Appeal), also apply to the rules on jurisdiction of art 7 chapeau and art 7.1.f Arrest Convention 1952. The Arrest Convention 1999 also presupposes its applicability to non-Convention ships and a ‘jurisdiction on the merits’ based on the attachment of ships.

The argument that the scope of the Arrest Convention 1952 is (only) determined by art 8.1 and art 2, is not convincing. That view would make art 8.2 of the Arrest Convention 1952 into a meaningless provision and would mean that the recovery of a claim against a non-Convention ships would, under certain circumstances, be more cumbersome than the recovery against Convention ships, because the application for attachment and claim on the merits would have to be submitted to different courts. The challenge against the view that the above construction of the Convention is in line with the construction given in many other contracting states lacks proper ground. The fact that the Arrest Convention 1952 is based on reciprocity, which is expressed in the restriction of the possibility of the attachment of Convention ships, does not affect the fact that the contracting States could provide for the attachment of non-Convention ships and for thereto connected jurisdiction provisions. 

In the aforementioned Kaliakra judgment, the Rechtbank Rotterdam also considered that the jurisdiction provisions of art 7 chapeau and art 7.1.d of the  Arrest Convention 1952 prevail over the rules on jurisdiction of the EU Regulation 44/2001 on the basis of art 71 EU Regulation 44/2001. The grounds given by that court, which were endorsed by the Gerechtshof (Court of Appeal), are equally applicable to the jurisdiction provisions of Article 7 chapeau and art 7.1.f of the  Arrest Convention 1952. It follows from the foregoing that the arguments of Hero Shipping that the EU Regulation 44/2001 prevails because the Arrest Convention 1952 does not apply or lacks a provision on jurisdiction, are unfounded as they do not take into account art 8.2 and art 7 chapeau and art 7.1.f of the Arrest Convention 1952.