The Russian-flagged ship Yekaterina, owned by Rekate Shipping Ltd (Rekate), a company based in Malta, was chartered to Traveler Shipping LLC (Traveler), a company based in Russia and electively domiciled in Oristano, on a bareboat basis. A chain of voyage charterparties was then entered into, from Traveler to E-Star Shipping & Trading Co (E-Star), a Singapore company; from E-Star to Virtual Shiptrade Co (Virtual), based in Marshall Islands and electively domiciled in Terralba; and finally from Virtual to Sea Trans Pvt Ltd (Sea Trans), an Indian company.

Due to E-Star's failure to load cargo at the Port of Qingdao, China, Virtual was exposed to liability to its sub-charterer, Sea Trans, for USD 1,210,852. On 3 November 2021, Virtual applied for the arrest of the Yekaterina pursuant to arts 1.d ('agreement relating to the use or hire of any ship whether by charterparty or otherwise') and 1.e ('agreement relating to the carriage of goods in any ship whether by charterparty or otherwise') of the Arrest Convention 1952, as security for its maritime claims arising from the voyage charterparty entered into with E-Star. Virtual argued that it had the right to arrest the ship even if it was not owned by E-Star. On the same day, the Court of Oristano ordered the arrest of the vessel on an ex parte basis (inaudita altera parte).

Neither the shipowner Rekate nor E-Star filed a defence in the proceedings. Traveler voluntarily intervened and applied for the arrest to be lifted. Among its arguments, Traveler noted that Virtual had already obtained the arrest of the Yekaterina in Greece, but had revoked its arrest application on 5 November 2021 (thus, after the 3 November ship arrest decree in Italy, but before the hearing on the matter). According to Traveler, the arrest was inadmissible, both as contrary to art 3.3 of the Arrest Convention 1952 ('A ship shall not be arrested, nor shall bail or other security be given more than once in any one or more of the jurisdictions of any of the Contracting States in respect of the same maritime claim by the same claimant'), and to art 29 of EU Regulation No 1215/2012 (lis pendens).

Held: The Tribunal disregarded the objection of lis pendens, but lifted the arrest.

For the purposes of art 3.3 of the Arrest Convention 1952, not only the circumstances existing at the time of the arrest application, but also those which arise afterwards are relevant; therefore, a ship arrest in Italy is not prevented by a previous arrest obtained abroad but subsequently waived, as the situation of lis pendens is to be considered to have ceased.

Article 3.1 of the Convention provides that a 'claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship'. The first sentence of art 3.4 further provides: 'When in the case of a charter by demise of a ship the 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 charterer by demise'. The second sentence, however, provides that the previous rule 'shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship'. On the one hand, the paragraph in question, in legitimising the arrest of a ship even if it does not belong to the charterer in the event that it has taken over the nautical management of the vessel, seems to admit the arrest of a ship not owned by the debtor as an exception to the general rule. On the other hand, it seems to extend the scope of the rule to all cases in which a party other than the owner has a maritime claim, also by virtue of voyage charters, time charters or other transport contracts.

Around this last provision two different doctrinal and jurisprudential approaches have developed, and not only In Italy. According to some views, on the basis of a literal interpretation in the broad sense, the provision in question always allows anyone with a maritime claim to arrest a ship to which the right arising under that claim refers, not only in cases where the debt is contracted by the shipowner or the bareboat charterer. The proponents of this thesis see in the provision introduced by the Convention a means of immobilising the ship until the provision of security for its release, also to protect a maritime claim not supported by any maritime lien on the ship itself. Having a special character, as an instrument of pressure for the achievement of security, ship arrest should not require any co-ordination with the eventual enforcement phase of proceedings.

Others have preferred a systematic interpretation in a restrictive sense, which has been regarded as more convincing and prevalent in the past in Common Law countries, and in more recent times also in Italy, according to which the equivocal provision in question in art 3.4 must be linked to art 9, which provides: 'Nothing in this Convention shall be construed as creating a right of action, which, apart from the provisions of this Convention, would not arise under the law applied by the Court which was seized of the case, nor as creating any maritime liens which do not exist under such law or under the Convention on maritime mortgages and liens, if the latter is applicable.' In other words, if the Convention had intended that any maritime claim could be enforced against a ship, even if it did not belong to the debtor, it would have created a new category of maritime liens. Therefore, ship arrest can only be authorised when the following conditions are met: a) the arrest application is based on one of the listed maritime claims; and b) the judgment, subsequent to the arrest, is susceptible of execution by forced execution (judicial sale) of the arrested ship in respect of a claim asserted against the owner or guaranteed by one of the existing maritime liens on the ship itself.

Moreover, the aforementioned rule on the limits to arrest in art 9 is not the only one capable of being combined with the provision in question. Other reasons contrary to the extension of the seizure to assets not belonging to the debtor can be inferred from art 5 of the Convention, which provides that the court 'shall permit the release of the ship upon sufficient bail or other security being furnished', so as to justify, not the total revocation of the ship arrest, but the conversion of it into the seizure of the sum deposited, in order to allow the debtor the availability of the arrested ship, but without loss for the creditor of security for its claim. Article 5, moreover, considers the provision of a security as neutral and irrelevant with respect to the purpose of the ship arrest, since the request 'to release the ship against such security shall not be construed as an acknowledgment of liability or as a waiver of the benefit of the legal limitations of liability of the owner of the ship'.

The latter legal thesis, according to which having a maritime claim does not automatically give the creditor the right to request the arrest of a ship that is not owned by the debtor and is not subject to forced execution, has already been adopted by this Court in previous rulings (Trib Oristano, 21 February 2019).

The Tribunal held that, in the present case, the ship arrest application certainly envisages a maritime claim, but one which is not supported by any maritime lien on the ship that is arrested, which is peacefully owned by a third party, unrelated to the relationship inferred as the basis for the future claim on the merits.

The Tribunal went on to hold Virtual liable for wrongful arrest. In this regard, the Tribunal clarified that the claim for damages by wrongful arrest falls within the exclusive and mandatory jurisdiction of the judge competent to decide on the costs of litigation, and it is therefore inadmissible to request the liquidation of such damages in separate proceedings. If the claimant was aware that its claim had no merit, the damages arising out of the wrongful arrest are to be paid in an amount corresponding to the port costs and the daily freight for the period between the termination of the port operations and the release of the ship.