On 22 April 2024, oil spilled from the vessel Haijinjiang (flagged in Panama), which was moored at a berth owned by PJSC NMTP. The vessel was owned by Wealth Holdings Shipping Pte Ltd, registered in Singapore (the defendant). The polluted area was 800,000 m². The Black Sea and Azov Directorate of the Federal Agency for Supervision of Natural Resources (the applicant) calculated the damages caused on the basis of the 'Methods for calculation of the damage caused to the maritime environment due to the violation of the water legislation' (Metodika), approved by the Order of the Ministry of Environment No 87 dated 13 April 2009. The amount of damages calculated based on the Metodika was RUB 453,340,024. The applicant applied for orders arresting the vessel and determining the period of this arrest.

Held: The arrest was granted. The application for determining the period of the arrest was dismissed.

Under art 99(1) of the Commercial Procedure Code of Russia (the CPC RF), preliminary security measures are granted upon the application of a juristic or natural person, and aim to ensure the applicant's property interests before the submission of its claim.

According to s 1 of the Resolution of the Plenum of the Supreme Court of Russia No 15 dated 1 June 2023 (Resolution No 15), security measures are granted to prevent the violation of the rights, freedoms, and legitimate interests of the applicant or public, reduce the negative consequences of already committed violations, and create the conditions for proper enforcement of judgments.

Under s 14 of Resolution No 15, courts considering applications for security measures establish the grounds for granting these measures and determine whether the measures applied for relate to the subject of the claim, are proportionate to it, and how they meet the security measures' purposes.

When assessing the applicant's arguments, the court takes into account the reasonableness of the security measure applied for, the connection between the relevant measure and the subject of the claim, the probability of causing significant damage to the applicant if the measure is not granted, ensuring the balance of the parties' interests, and preventing significant damage to the interests of the public and third parties if the measure is granted. To prevent significant damage to the applicant, the security measure may be aimed at ensuring the status quo in the parties' interests.

Granting the security measure at the place where the property is located is justified if there is a significant amount of property in the court's jurisdiction from which the applicant's interests, or at least a significant part of the relevant claim may be secured. After the submission of the claim the preliminary security measure will stay in place as a non-preliminary measure.

Under s 16 of the Informational Letter No 81 (CMI2348), if the Merchant Shipping Code of Russia (the MSC RF) contains provisions different from those in the CPC RF, the CPC RF’s provisions apply considering the MSC RF.

Under art 388 of the MSC RF, the arrest is any detention of a ship or restriction of its movement when it is located in Russia on the basis of the judicial act of a court, commercial court, or authorised arbitration institution for maritime claims as determined in art 389 of the MSC RF, excluding the seizure of a ship in the execution of a judgment (art 1.2 of the Arrest Convention 1952). The ship can be arrested only for a maritime claim (arts 1.1 and 2 of the Arrest Convention 1952). The ship can be arrested even though it is ready to sail (art 3.1 of the Arrest Convention 1952). The ship can be arrested irrespective of the fact that the main dispute will be considered in the court or arbitral tribunal in a foreign country.

Under art 389 of the MSC RF, maritime claims include claims for damage done by a ship, damage caused by the ship's operation, and expenses incurred to prevent or reduce damage caused to the environment if this claim follows from an international treaty of Russia, statute, or any agreement, and damage caused by these preventive measures.

According to art 390(1) of the MSC RF, a ship may be arrested even though it is not the wrongdoing ship, but it is owned or chartered by demise by the person who would be liable for the claim in personam. A similar provision is contained in art 3.1 of the Arrest Convention 1952.

Therefore, taking into account these provisions and the international practice of ship arrest, the ship may be arrested if there is a maritime claim against it (arrest in rem) or if it is owned or chartered by demise by the person who would be liable for the claim in personam (arrest in personam). The same legal provision is articulated in the Judgments of the Presidium of the Supreme Commercial Court of Russia No 9284/02 dated 19/11/2002, No VAS-9003/13 dated 17/2/2014 and No VAS2562/14 dated 7/3/2014.

Applying for the arrest, the applicant emphasised that the arrest was the only security measure available because only this measure could prevent significant damage to the applicant and maintain the balance of the parties' interests. The shipowner was a foreign juristic person. The vessel, at any moment, could change its location and leave Russia. So, if the security measure was not granted, it might result in impossibility of judgment enforcement. Due to the nature of, and the circumstances surrounding, the claim, the measure was ultimately aimed at preventing significant damage to Russian state interests. On the basis of the above, the ship was arrested.

However, the application for determining the period of the arrest was dismissed. Under art 99(5) of the CPC RF, if a claim which is secured by the preliminary measure is covered by the rule that before submitting the claim, the claimant must send the defendant a pretrial claim, the court determines the term for sending this pretrial claim. This period cannot exceed 15 days after the measure is granted. If a claim is not covered by the mandatory pretrial claim rule, the court establishes the term for submitting the claim that cannot exceed 15 days after the measure is granted. If the pretrial claim or claim is not submitted within the determined period, the security measure is dismissed automatically. Therefore, there is no need to establish any special period for the arrest since the period for submitting the pretrial claim or claim may act as the restrictive period for the arrest itself. If the pretrial claim or claim is submitted within the relevant period, the preliminary security measure is transformed into a non-preliminary one that secures the claim, and therefore, it may remain in place throughout the whole proceedings until the judgment is executed.