In January 2020, on the application of Shipward Maritime (SM), a Dutch court ordered the arrest of the ship Pegasus belonging to Hamburg Offshore AHT Pegasus GmBh & Co (HO) while the ship was in port in Rotterdam, in connection with SM's claim against HO for towage and related costs. The initial arrest was granted as security for SM's claim of EUR 362,360.76 and related costs of EUR 102,439. Following the initial arrest, SM initiated a confirmatory action through arbitration in London.

In January 2022, SM applied for, and was granted, a second arrest of the Pegasus for a claim of DKK 4,127,495.85 by the Bailiff's Court in Aalborg, Denmark. SM's new claim was based on increased expenses for legal representation relating to the arbitration in London. In connection with the re-arrest case in the Bailiff’s Court, SM argued that under Dutch law there are limitations with regard to the amount that can be claimed as security for legal costs and interest.

HO appealed the re-arrest to the High Court of Western Denmark. In support of its application to dismiss the re-arrest, HO argued that the re-arrest was made for the same claim and in respect of the same ship as the initial arrest in the Netherlands. Therefore, the re-arrest was granted in violation of s 93(5) of the Danish Merchant Shipping Act [art 3.3 of the Arrest Convention 1952]. Section 93(5) of the Danish Merchant Shipping Act states that:

A creditor cannot obtain arrest of a ship more than once for the same claim. The same applies when security has been provided to avert or cancel the arrest of a ship. However, this does not apply if the creditor proves that the security was released before the later arrest was requested, or if there are other special grounds for making the arrest.

HO argued that there was no basis for a subsequent arrest under the last sentence of s 93(5). The costs of ordinary arbitration proceedings were foreseeable, and SM had to bear the risk of any increase in costs, so this could not justify the re-arrest. HO also claimed damages for the unjustified re-arrest.

SM argued that the legal costs related to the London arbitration were much higher than expected when the initial arrest was granted. SM claimed that the increased costs were a result of the circumstances of the arbitration being more complex than what was anticipated during the initial arrest case.

Held: Judgment in favour of HO.

The High Court concluded that SM had not proved that there were special grounds which could justify the re-arrest of the Pegasus. On this basis, the High Court released the vessel, as the re-arrest was deemed unjustified.

The High Court rejected HO's claim for compensation for the unjustified re-arrest, as it held that HO did not suffer a loss as a result of the unjustified re-arrest, citing s 96 of the Danish Merchant Shipping Act, and ss 639(3) and (6) of the Danish Administration of Justice Act.