The Harju County Court granted an application of Bergen Bunkers AS and authorised the sale of the seized vessel OMG Tosno. The vessel was sold on 30 April 2010 by public auction. On 30 June 2010, the bailiff, Urmas Tärno, issued a judgment ordering enforcement costs. These included costs allegedly incurred by Vene-Balti Sadam OÜ (Vene-Balti) for maintaining the ship amounting to EEK 5,046,158. OAO Bank Sankt-Petersburg (the appellant) disputed the bailiff's judgment, arguing that the enforcement costs were unreasonably high. The appellant argued that reasonable expenses for maintaining the ship amounted to EEK 1,535,757. On 18 October 2010, the bailiff ruled on the appellant's complaint and held that there were no port charges in the enforcement costs, but a claim secured by a maritime lien, which the bailiff took into account when drawing up the distribution plan.

The appellant filed a complaint with the Harju County Court requesting that the bailiff's decision of 18 October 2010 be annulled. The appellant also alleged that the bailiff was wrong to find that port costs incurred by Vene-Balti were enforcement costs, because they were incurred after the ship was seized. The definition of a maritime lien is found in the Ship Property Law (LAÕS). Pursuant to § 72(1) of the LAÕS, maritime liens are legal pledges to ensure the ship's statutory requirements. Pursuant to § 74(1)(4) of the LAÕS​, maritime liens include claims arising from port dues, for example, where the ship in question arrives and departs from the port without paying port fees. In this case, the parties have established a claim under the law of obligations (agreement between the parties for the payment of port fees) secured by a legal lien. Once a ship is arrested in port, there is no debt relationship between the debtor and the creditor such that a claim secured by a maritime lien may also arise. In this case, the Code of Enforcement Procedure (TMS) and the International Convention on Maritime Mortgages and Liens 1993 (MLM Convention 1993) applies. Article 12.2 of the MLM Convention 1993 provides that the 'costs and expenses arising out of the arrest or seizure and subsequent sale of the vessel shall be paid first out of the proceeds of sale'. The costs and expenses referred to in art 12.2 include, inter alia, the port's costs of the upkeep of the detained ship. Such post-seizure costs related to the detention of a ship do not create a contractual obligation between the parties. Therefore, no maritime lien can be incurred.

The appellant argued that the bailiff's assertion that he had no influence on the price of the services provided by the third party (Vene-Balti) was incomprehensible. If the legislature had provided for the possibility that third parties would bear enforcement costs, then it was also possible for the bailiff to assess whether they were justified.

The Harju County Court dismissed the appeal. The Court held that enforcement costs included necessary expenditure incurred by the claimant or a third party following enforcement proceedings, including the costs of transporting, storing and guarding seized property and other costs for the upkeep of the property. The parties did not dispute that the ship was arrested and was in port. Thus, the costs involved in guarding and maintaining the ship were enforcement costs. Pursuant to § 74(1)(4) of the LAÕS, port dues, canal charges and claims arising from other fairway dues and pilotage dues are secured maritime debts. Since the disputed charge is a port charge, it is a maritime lien due to that provision. Pursuant to art 12.2 of the MLM Convention 1993, detention and compulsory auction fees and expenses of the auction rank first in the sale proceeds. The fees and expenses include, inter alia, the cost of maintaining the ship and the crew and their wages and other expenses referred to in art 4.1.a of the MLM Convention 1993 and charges incurred in arresting or detaining the ship.

The applicant appealed to the Tallinn Circuit Court, which upheld the County Court decision. The appellant then appealed in cassation to the Supreme Court on the grounds of an incorrect application of domestic legislation and art 12.2 of the MLM Convention 1993.

Held: Decisions of the lower courts annulled. Appeal partially upheld.

The Chamber agreed that port charges arising from the arrest of the ship are not claims secured by a maritime lien. Pursuant to § 72(1) of the LAÕS, maritime liens are legal pledges to ensure the ship's statutory requirements. Pursuant to § 74(1)(4) of the LAÕS​, a maritime lien secures, inter alia, claims arising from port dues, canal dues and other fairway dues and pilotage dues. LAÕS § 91 distinguishes between the costs of the seizure of a ship and the distribution of the proceeds of a forced auction, which are deducted first from the sales proceeds, and claims secured by a maritime lien, which are settled second.

The LAÕS​ and the MLM Convention 1993 do not provide that port charges incurred after the arrest of a ship are secured with a maritime lien. Importantly, the extinction period for a maritime lien in § 75 of the LAÕS and the Convention is short (one year from the time the claim arises). Article 9.1 of the MLM Convention 1993 states that the maritime lien is extinguished after only one year 'unless, prior to the expiry of such period, the vessel has been arrested or seized, such arrest or seizure leading to a forced sale'. Thus art 9.1 makes it clear that a maritime lien is understood to mean only secured maritime debt incurred prior to the seizure of the ship, which expires in one year if the ship is not seized within that period.

In addition, § 91 of the LAÕS and the first sentence of art 12.2 of the MLM Convention 1993 provide for the deduction of the costs of the seizure and sale of the ship first. In the event of seizure, costs in respect of the seized ship would primarily consist of the costs of staying in the port and thus of using port services. The second sentence of art 12.2 of the MLM Convention 1993 provides, by way of exception, that the costs of seizing a ship include, inter alia, ship and crew maintenance costs during the time the ship is seized, including crew wages. Normally, the sums and costs referred to in art 4.1.a of the MLM Convention 1993 that are incurred before seizure are secured by maritime liens. These costs are therefore granted a maritime lien and, at the same time, are enforcement costs. However, no such exception is provided for port charges.

It follows from the foregoing that a maritime lien secures, among other things, a shipowner's debts resulting from the use of a port. Compensation claims by the port resulting from the seizure of a ship and the subsequent stay of the ship in port, on the other hand, are not maritime lien claims.​