This was an application for the arrest of the Viva-962 made by FSBI NIKIMP (the claimant). The vessel's owner was Viva Shipping 962 Corp (the defendant). The claimant submitted that the defendant failed to pay for the vessel's berthing in Sevastopol in facilities that were owned by the claimant. Also, the claimant alleged that the defendant had no contractual or legal entitlements to berth its vessel in the port. The claimant sought unjust enrichment of RUB 3,746,088.

To secure its claim, the claimant applied for a ship arrest under the Merchant Shipping Code of Russia (the MSC RF). The claimant submitted that its claim for berthing fees was a maritime claim, since these constituted disbursements incurred on behalf of the ship or its owner (art 389 of the MSC RF). The defendant argued that this claim was not a maritime claim within the meaning of arts 388 and 389 of the MSC RF. As the ship could only be arrested for a maritime claim, the arrest should not have been granted. The Court of first instance granted the arrest. The defendant appealed the ruling.

Held: The appeal is dismissed.

Under art 90 of the Commercial Procedure Code of Russia (the CPC RF), a court may impose urgent security measures upon the application of the party involved in proceedings to secure the claim or the applicant’s interests. The security measures are granted if their absence may result in difficulty or impossibility of judgment enforcement, including when the judgment is to be enforced outside Russia, as well as to prevent significant damage to the applicant. Under art 92(2)(5) of the CPC RF, the applicant bears the burden of justifying the application.

According to ss 14, 15, and 16 of the Resolution of the Plenum of the Supreme Court of Russia No 15 dated 01/06/2023 (Resolution No 15), courts considering an application for a security measure establish the grounds for granting the measure and determine whether the measure applied for relates to the subject of the claim, is proportionate to it, and how it meets the security measure's purposes (art 91(2) of the CPC RF). Courts grant the security measure if it establishes at least one ground for its granting listed in art 90(2) of the CPC RF. To prevent significant damage to the applicant, the security measure may be aimed at ensuring the status quo in the parties' interests. Courts should keep in mind that security measures are preliminary and expedited remedies. Therefore, for their granting, it is not necessary to meet the evidentiary standard required to prove claims on their merits. The applicant has to prove only the possibility of consequences stipulated in art 90(2) of the CPC RF. Courts may take into account the possibility that the defendant may take actions to dispose of its property or depreciate its value, the existence of, or possibility of, commencement of enforcement proceedings against the defendant, and that not granting the security measure may result in violation of the rights, freedoms, and interests of the claimant or third parties. The security measure is granted only if there is a connection between the relevant measure and the claim (s 17 of Resolution No 15), and if the security measure is proportionate to the claim (s 18 of Resolution No 15).

Under s 13 of the Resolution of the Plenum of the Supreme Commercial Court of Russia No 11 dated 9 December 2002, commercial courts should not grant a security measure if the applicant fails to support its application with reference to the actual circumstances and does not provide evidence proving its arguments. Commercial courts assess the particular circumstances of cases and may grant a security measure only if there is a real necessity for it. Thus, security measures should directly relate to the subject of the claim, be proportionate to the claim it secures, be necessary and sufficient to secure the judgment enforcement or prevent significant damage to the applicant, and be aimed at ensuring the balance of the parties' interests.

Under s 16 of 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, taking into consideration the MSC RF. The special rules on ship arrest are contained in Ch 12 of 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. Article 390 of the MSC RF contains the list of conditions which should be satisfied to arrest the ship.

In Russia, ship arrest is also regulated by the Arrest Convention 1952. Russia has been a party to this Convention since 6 January 1999. Under art 6.2 of the Arrest Convention 1952:

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.

Due to this rule, ship arrest in Russia is granted if the general procedural grounds for security measures stipulated by the CPC RF are met. The court assesses the grounds for granting security measures at its own discretion. Even though the provisions of the MSC RF prevail over the rules of the CPC RF as lex specialis, they do not exclude the application of the latter.

The Court of Appeal agreed with the conclusion of the Court of first instance that the claimant’s claim was technically a claim for the disbursements and, therefore, was a maritime claim under art 389 of the MSC RF. The defendant was a foreign entity registered in Panama. There was no information on any other defendant’s property in Russia. The ship might leave Russia and be unavailable for the enforcement of the judgment. Therefore, the Court found it was appropriate to arrest the vessel and dismissed the appeal.