This was an application by Fesco Integrirovannyi Transport LLC (the claimant) to arrest the Maks, chartered by demise by the defendant, Shipping Co Eliyen LLC. The claim was for the recovery of a debt under a carriage of goods by sea contract.

On 19 April 2018, the application was rejected by the Court of first instance. On 15 August 2018, that ruling was upheld by the Court of Appeal. The claimant submitted a cassation appeal.

Held: The cassation appeal is dismissed.

Ship arrest consists of any detention of the ship or restriction of its movement while within the jurisdiction of Russia. The arrest is imposed by the competent commercial court of arbitration. The vessel may be arrested only for a maritime claim (arts 388.1 and 388.2 of the Merchant Shipping Code of Russia, the MSC RF). Pursuant to art 389 of the MSC RF, any claims regarding the use of the ship are maritime claims for which the vessel may be arrested. Under art 390.2 of the MSC RF, any ship or ships other than the ship involved in the incident may be arrested if, at the beginning of the arrest procedure, they were owned by the person who would be liable for a claim in personam and was the owner or bareboat, time, or voyage charterer of the ship involved in the incident at the time when the maritime claim arose.

All these provisions of the MSC RF regulate the arrest of ships from the perspective of the existence of maritime claims but not the procedural grounds for the arrest. The arrest of seagoing vessels is regulated by the Arrest Convention 1952. However, it does not stipulate any procedural rules of imposition of the relevant measure. Under art 6 of the Convention, all procedural issues are regulated pursuant to the law of the arresting forum.

On the basis of the above, the commercial court, besides the provisions of the MSC RF and the Arrest Convention, applies the Commercial Procedure Code of Russia (the CPC RF), which stipulates procedural grounds for the imposition of ship arrest. Under art 90 of the CPC RF, interim measures are imposed if their absence would make it difficult or impossible to enforce the claim. This provision is interpreted in the Resolution of the Plenum of the Supreme Court of Russia No 55 dated 12/10/2006 (Resolution No 55). It states that the difficulty or impossibility of the claim enforcement may relate to the absence of property belonging to the defendant or to the defendant’s actions aimed at decreasing the volume of property available for the claim enforcement. The interim measures may aim at the preservation of the ‘status quo’ between the parties (s 9).

At the same time, Resolution No 55 stipulates that interim measures are imposed only if they are justified. Interim measures are justified if at least one of the grounds in art 90 of the CPC RF is met. Per s 10 of Resolution No 55, the Court must establish how the particular interim measure is connected with the subject of the claim, proportionate to it, and how it will ensure the actual realisation of the grounds stipulated in art 90 of the CPC RF.

The claim against the Maks was a maritime claim under art 389 of the MSC RF. However, the claimant failed to prove that non-imposition of the ship arrest would result in difficulty or impossibility of claim enforcement or in significant damage to the claimant. Another issue which was considered by the Court was that the arrest of the vessel may result in the impossibility of the defendant to perform obligations under other agreements with third parties. Therefore, the arrest may have violated these third parties' rights.