This was an appeal brought by an insurance company against a decision of the Commercial Court in Split, R1-143 / 06 of 23 October 2006, which held that the ship Q could not be arrested. The appellant had sought to secure its monetary claim for USD 300,000 by ordering the ship's arrest.

The Court of first instance referred to art 2 of the Arrest Convention 1952, according to which a ship flying the flag of a Contracting State may be arrested in a Contracting State only for maritime claims. The Court considered that the insurance claim did not arise from 'loss of life or personal injury caused by any ship or occurring in connexion with the operation of any ship', as required by art 1.1.b of the Convention. The claim was based on the fact that due to the lack of safe working conditions on the ship, a third party contractor died. According to the first instance Court, since it was not a member of the ship's crew who died, the cause of the accident was not related to the ship's operation, and thus it was not a maritime claim. Rather, the provisions of the Civil Obligations Act should be applied, which regulate liability for non-contractual damage.

Held: The appeal is upheld:

• The ship Q shall be arrested to secure the appellant's claim.
• The costs of maintaining the ship and its crew during the duration of this temporary measure shall be borne by the shipowner (art 960.1 of the Maritime Code).
• This interim measure shall last until the conclusion of the civil or any other procedure, which the appellant is obligated to initiate within 15 days from the day of receipt of the copy of this decision, and shall inform the Court thereof.
• If the appellant fails to prove within the time limit referred that it has initiated civil, enforcement or any other proceedings, the Court shall revoke the temporary measure (art 958.3 of the Maritime Code).
• The Court may release the ship if the shipowner provides a guarantee, or deposits USD 300,000 with the Commercial Court in Split (art 955.1 of the Maritime Code).

Both Croatia and Ireland, where the Q is flagged, are signatories to the Arrest Convention 1952. According to art 140 of the Constitution of the Republic of Croatia (Official Gazette Nos 56/90, 135/97, 8/98), the Convention forms part of the internal legal order of Croatia, and applies to this procedure.

The claim which is the subject of the insurance policy refers to compensation of material and non-material damage suffered by the applicants as a result of the death of their husband and father, VM. The first instance Court determined that the accident causing VM's death did not occur 'in connexion with the operation' of the ship, because the notion of operation of a ship derives from a contractual relationship based on a contract for the use of seagoing ships. The Convention limited the temporary measure of arresting a ship to maritime claims only, so that ships would not be obstructed in trade for claims which had nothing to do with navigation.

This last statement of the trial Court is correct. However, the Convention does not determine what a maritime claim is depending on who lost their life or suffered bodily injury, but only relates it to the operation of the ship. There is no doubt that the unloading and loading of cargo is an act of operating the ship, because the exploitation of the ship in this sense necessarily includes all actions of preparation for unloading and loading of cargo, including the sub-deck cleaning operations during which VM suffered his fatal accident. It is therefore a maritime claim under art 1.1.b, for which a ship may be arrested under art 2 of the Convention.

Article 6.2 of the Convention stipulates that the rules of procedure for arresting a ship, obtaining the authority to arrest referred to in art 4 of the Convention, and all other matters of procedure arising from a ship arrest, shall be governed by the law of the contracting State in which the arrest was made or requested, which means that in this case the provisions of the Maritime Code and the Enforcement Act apply.

The territorial jurisdiction of the Commercial Court in Split is based on art 849.3 of the Maritime Code, because the ship Q was in its territory at the relevant time. Article 296.1 of the Civil Code stipulates that a temporary measure to secure a monetary claim may be ordered if the claimant establishes the probable existence of the claim and there is a danger that without such a measure the opponent will prevent or significantly impede enforcement of the claim, conceal or otherwise dispose of the property. The appellant has proved the probability of the existence of its claim. Since this is an urgent procedure, the Enforcement Act has enabled the Court to determine the existence of facts on which the application of the law depends only in the degree of probability and not certainty, as in civil proceedings.

The first instance Court further determined that the ship is no longer moored in the port of P. However, art 849.6 of the Maritime Code stipulates that if at the time of submitting an application for arrest, it is not known whether the ship is on the territorial sea or inland waters of Croatia, the applicant can apply to the Court in whose territory the ship is registered, or if the ship is not registered in the Croatian Register of Ships, any competent Court in Croatia may issue a decision ordering an interim measure. Therefore, the fact that the ship is no longer moored in the port of P, where it was at the time of submitting the insurance claim, does not mean that the conditions for determining a temporary measure by arresting that ship are not met. The same provision stipulates that in that case the bailiff may submit a decision on determining a temporary measure to any competent court in whose territory the ship is located, with a proposal that that court implement the measure.