This was an application by Cross Office OU (the applicant) for the arrest of the vessel Winter Bay, owned by Dlariada Ltd (the previous shipowner).

On 13 November 2017, the applicant issued an invoice for USD 56,000 to the previous shipowner for the supply of bunker fuel, with the deadline for payment on 2 January 2018. The invoice remained unpaid. The applicant applied for the arrest of the vessel. The arrest was granted. Roberval Impex SA (the current shipowner) then applied to set aside the arrest, since the vessel had been transferred to them from the previous owner. The arrest was set aside by the Court of first instance. The applicant appealed to the Court of Appeal.

Held: The appeal is dismissed.

The Court of Appeal disagreed with the conclusion of the Court of first Instance that the vessel could not be arrested since its owner was a person other than the person liable under the contract. The Court of Appeal found that the legal basis for the ship arrest in Russia is the Arrest Convention 1952, the Merchant Shipping Code of Russia (the MSC RF), and the Commercial Procedure Code of Russia (the CPC RF). All these statutes apply cumulatively.

According to art 389 of the MSC RF, any claim connected with goods, materials, provisions, bunkers, equipment, including containers, supplied to the ship for its operation or maintenance is a maritime claim. Thus, the relevant claim relating to the supply of bunkers is a maritime claim. Article 390 stipulates that the ship may be arrested if

• the maritime claim is secured by the maritime lien under art 367(1) of the MSC RF;
• the maritime claim is based on the ship mortgage or other encumbrances of the same nature registered according to the legal requirements;
• the maritime claim relates to the ownership or possession of the ship;
• the person liable for the maritime claim is the registered owner of the vessel when the arrest procedure commences, or the demise charterer of the vessel when the maritime claim arose is the person liable for the claim and is the demise charterer or the registered owner of the ship when the arrest procedure commences.

According to a systematic interpretation of arts 389 and 390(1), the maritime claim arises with respect to the ship and does not depend on the person who is liable for this claim (owner, charterer, agent, operator, etc). The person who ordered the bunkers is the person who is liable for the maritime claim.

Pursuant to art 3.4 of the Arrest Convention 1952, if the vessel is on demise charter, and the demise charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the demise charterer, subject to the provisions of that Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claim. The provisions of this paragraph apply to any case in which a person other than the registered owner is liable in respect of a maritime claim relating to that ship.

Article 427 of the MSC RF stipulates that if an international treaty to which Russia is a State party provides for rules other than those contained in the MSC RF, the provisions of the international treaty shall apply.

Therefore, the applicant had the right to arrest the vessel, irrespective of the fact that it was owned by another company.

At the same time, the Court of Appeal concluded that art 390 does not contain the rules that the arrest must be granted if the relevant requirements are met. Thus, the provisions of art 390 apply together with provisions of the CPC RF. Under art 90(2) of the CPC RF, interim measures may be imposed at any stage of the commercial proceedings if their non-imposition may make it difficult or impossible to enforce the claim outside Russia and in order to prevent significant damages to the applicant. According to art 92(2)(5), the applicant must justify the reasons for the application for the interim measures.

Under s 10 of the Resolution of the Plenum of the Supreme Commercial Court of Russia No 55 dated 12/10/2006 (the Plenum No 55), commercial courts should particularly take into account the reasonableness and justification of the application; the probability of the significant damages caused to the applicant if the interim measures are not imposed; and the prevention of violations of third parties' and the public's interests. Moreover, commercial courts should consider how the interim measure corresponds to the subject of the claim, whether it is proportionate to it, and how it may assist in achieving the purposes of the interim measures stipulated in art 90(2) of the CPC RF. When commercial courts consider the issue of setting interim measures aside under art 97 of the CPC RF, they should carefully check the grounds for their imposition under art 90(2) of the CPC RF, and evaluate its application according to s 10 of the Plenum Resolution No 55.

On the basis of the legal provisions analysed above, the Court of Appeal found that the applicant did not provide enough evidence proving that the previous owner did not have any property other than the vessel. Moreover, it was not proved that the previous owner did not have any money to satisfy the claim, or that the sale of the vessel made it impossible to enforce the judgment if the vessel was not arrested. The speculative arguments of the applicant regarding the difficulty of judgment enforcement cannot be sufficient grounds for the imposition of interim measures.

Therefore, the appeal was dismissed, and the judgment of the Court of first instance setting the arrest aside was upheld, but for different reasons.

[Ruling confirmed on cassation appeal: see the Ruling of the Commercial Court of the North-Western District in Case No A21-5873/2018 dated 05/02/2019.]