This was an application by the Border Directorate of the Federal Security Service of Russia (the applicant) to arrest the vessel Kal Ma 2 belonging to Korea Surim Trading Co (the defendant), a company registered in North Korea. The application to arrest the ship was made in connection with a claim for damage caused to natural water resources.

The Court of first instance granted the arrest. The Court did not consider the provisions of the Arrest Convention 1952 or the Merchant Shipping Code of Russia (the MSC RF). It resolved the issue with sole reference to the provisions of the Commercial Procedure Code of Russia (the CPC RF). The Court agreed with the applicant’s position that the lack of property belonging to the defendant in Russia was sufficient reason to grant the arrest. The defendant appealed.

The Court of Appeal revised the ruling of the Court of first instance. It found that the applicant's claim was not a maritime claim under art 1 of the Arrest Convention 1952 and art 382 of the MSC RF. Damage caused to natural resources is not covered by the wording 'damage caused by any ship either in collision or otherwise' in art 1.1.a of the Arrest Convention 1952, and 'loss or damage caused by operation of the ship' in art 382 of the MSC RF. Also, the Court of Appeal concluded that the applicants must prove the 'absolute' necessity of the interim measures. Therefore, the Court of Appeal decided that the applicant failed to prove both grounds stipulated in the Arrest Convention 1952 and the MSC RF, and the CPC RF.

The applicants submitted a cassation appeal to the Commercial Court of the Far Eastern District.

Held: The cassation appeal is dismissed.

First, the Court of Cassation confirmed in principle that the vessel may be arrested under the provisions of the Arrest Convention 1952 even though it flies under the flag of North Korea, which is not a party to the Convention. This conclusion was made on the basis of art 8.2 of the Convention. Second, the Court, with reference to para 16 of the Informational Letter of the Supreme Commercial Court of the Russian Federation No 81 dated 13/08/2004 (CMI2348), stated that the arrest of ships is a special interim measure which may be imposed only for maritime claims. The existence of a maritime claim is the substantive basis for the arrest. Furthermore, the arrest may be imposed only if the procedural grounds stipulated in art 90 of the CPC RF are met. These procedural requirements relate to the necessity of the imposition of the relevant interim measures.

Dismissing the appeal, the Court of Cassation emphasised that a ship may be arrested only for maritime claims indicated in the Arrest Convention 1952 and the MSC RF. These lists of maritime claims are restrictive. Claims for damage caused to natural water resources are not covered by art 1 of the Arrest Convention 1952 and art 389 of the MSC RF.

The Court of Cassation confirmed the position of the Court of Appeal that the necessity of the arrest should be 'absolute'. The burden of proof of such absolute necessity is upon the applicant, which failed to prove the procedural grounds for the interim measures.