This was a claim brought by Moragentstvo Delo LLC (the claimant) against Nexus Maritime Service GmbH (the defendant) for recovery of a debt of USD 223,148.73 and RUB 238,755.19 under a maritime agency agreement regarding the Sevastopol and the Novorossiysk. The Commercial Court of Krasnodar Region found in favour of the claimant in full.

The claimant submitted an application for the arrest of the Sevastopol. By a ruling of the Commercial Court of Krasnodar Region dated 3 February 2016, the vessel was arrested. A third party, not involved in the relevant proceedings, Habib Neccar Corp, submitted an application to have the arrest set aside. This application was dismissed by the Court of first instance. On 10 July 2018, the Fifteenth Court of Appeal revised the ruling of the Court of first instance. On 12 December 2018, this ruling was confirmed by the Court of the North-Caucasus District. The Courts of appeal and cassation found that the basis for the arrest of the Sevastopol no longer existed since the vessel had been sold to Habib Neccar Corp in the parallel enforcement proceedings by the bailiffs' resolution. The preservation of the arrest order would thus violate the rights of the new owner, Habib Neccar Corp.

The claimant submitted another application to arrest the Novorossiysk. The Commercial Court of Krasnodar Region refused to arrest the vessel. The claimant appealed. The claimant argued that the defendant was a foreign legal entity which did not have any property in Russia. The absence of ship arrest would make it difficult or impossible to enforce the claimant's claim and the judgment.

Held: The ruling of the Court of first instance is revised. The Novorossiysk is arrested.

Under art 100 of the Commercial Procedure Code of Russia (the CPC RF), interim measures may be imposed by the commercial court in the course of enforcement proceedings. According to s 35 of the Resolution of the Plenum of the Supreme Commercial Court of Russia No 55 dated 12 October 2006 (Resolution No 55), the same rules apply to the imposition of interim measures at the pre-judgment and post-judgment stages.

Under s 16 of the Information Letter of the Presidium of the Supreme Commercial Court of Russia No 81 dated 13 August 2004 (CMI2348), if the Merchant Shipping Code of Russia (the MSC RF) stipulates rules on ship arrest which are different from the CPC RF, the MSC RF applies.

Under art 388(2) of the MSC RF, a ship may be arrested only in respect of a maritime claim. The list of maritime claims is provided by art 388(1) of the MSC RF. The arrest of sea-going vessels is also regulated by the Arrest Convention 1952. Under art 6.2 of this Convention, the rules of procedure relating to the arrest of a ship and to all matters of procedure which the arrest may entail shall be governed by the law of the contracting State in which the arrest was made or applied for.

Pursuant to the relevant rules and the international practice of ship arrest, the ship may be arrested if two requirements are met: 1) the existence of a maritime claim against a particular vessel (arrest in rem); 2) a particular vessel is owned or chartered by the person who would be liable in personam (arrest in personam). This position is articulated in the Resolution of the Presidium of the Supreme Commercial Court of Russia No 9284/02 dated 19 November 2002, and the rulings of the Supreme Commercial Court of Russia No VAS-9003/13 dated 17 February 2014, No VAS-2562/14 dated 7 March 2014.

The ground for imposition of interim measures under art 90(2) of the CPC RF is the occurrence of the circumstances, which, if the interim measures are not imposed, may make it difficult or impossible to get the claim enforced. Therefore, the imposition of interim measures is possible on one of the following grounds: 1) if non-imposition of the interim measures will make it difficult or impossible to enforce the judgment; and/or 2) non-imposition of the interim measures may cause sufficient damage to the applicant (s 9 of Resolution No 55). The Court assesses whether the interim measure applied corresponds to the subject of the claim, is proportionate to it, and how it serves the purpose of the interim measures derived from the grounds for imposition of interim measures in art 90(2) of the CPC RF.

Under s 10 of Resolution No 55, the commercial court takes into account the reasonableness and validity of the application for the interim measures, the probability of causing significant damage to the applicant if the interim measures are not imposed, and the balance of the interests, of the parties, the public and third parties. The same purposes of interim measures are described in the Ruling of the Constitutional Court of Russia No 390-O dated 6 November 2003.

Under s 2 of the Resolution of the Plenum of the Supreme Commercial Court of Russia No 11 dated 9 December 2002, the applicant bears the burden of proof of the circumstances on which the application is based.

In upholding the appeal, the Court took into account that the defendant is a foreign legal entity registered in Liberia, the defendant does not have any property except for the Novorossiysk in Russia, the judgment is not yet enforced, the claim is a maritime claim, and non-imposition of interim measures will result in impossibility of judgment enforcement. At the same time, the Court decided that the interim measure may be imposed only in the amount that was awarded to the claimant. Therefore, the vessel was to remain under arrest until the defendant provided sufficient alternative security for the sum of USD 223,148.73 and RUB 238,755.19.