In 2010 there was a collision on the high seas between the Kaliakra owned by Kaliakra Ltd and the UK 143 owned by De Vries, resulting in damage to the UK 143. On 13 January 2011, De Vries effected a prejudgment attachment on the Kaliakra in Rotterdam, which was later lifted in exchange for a guarantee. In the subsequent action on the merits De Vries claimed damages from Kaliakra Ltd. Kaliakra Ltd disputed that the court had jurisdiction on the merits. 

Held: It was not in dispute between the parties that for a claim arising out of a collision – a maritime claim under the Arrest Convention 1952 art 1.1 – art 7 of the Arrest Convention 1952 confers jurisdiction on the merits on the Dutch Courts if the attachment is effected in Rotterdam, in which case the Rotterdam District Court will have jurisdiction. In order to decide the issue whether art 7 applies and confers jurisdiction in a case where the attachment is effected on a ship not flying the flag of a state party like the Kaliakra which is flying the Maltese flag, the Arrest Convention 1952 needs to be construed. Most important to consider is the text of the Convention, the context and the object and purpose of the Convention. Also of importance are the views on the interpretation of the Convention in state parties. Supplementary recourse may be had to the travaux préparatoires of the Convention.

It follows from the wording of arts 8.1 and 8.2 and art 2 of the Arrest Convention 1952 – read together – that pursuant to the Arrest Convention 1952 in a contracting state an attachment may only be effected on a Convention ship in respect of a maritime claim and that an attachment on a non-Convention ship may be effected not only for a maritime claim but also for any other claim for which the law of the contracting state permits attachment. Consequently, the Arrest Convention 1952 not only provides a regulation for attachment of Convention ships but also for non-Convention ships.

This construction is in accordance with the construction given to the Arrest Convention 1952 in many other contracting states. This construction is also confirmed in the travaux préparatoires of art 8 Arrest Convention 1952 which demonstrates the intention to also apply the Convention to non-Convention ships, with the proviso that the restriction to maritime claims would not be applicable.

The conclusion was that the jurisdiction provision of art 7 of the Arrest Convention 1952 also applied in cases where the attachment is effected on a non-Convention ship so as to allow the claimant/attaching creditor to institute the action on the merits concerning the collision at the court of the country in which the attachment was effected.

As Kaliakra Ltd is established in Malta, EU Regulation 44/2001 is formally applicable. The claim of De Vries falls within the substantive scope of EU Regulation 44/2001. Art 71(1) of EU Regulation 44/2001 states that it shall not affect any Conventions to which the Member States are parties and which govern jurisdiction in relation to particular matters. The purpose of that exception is to ensure compliance with the rules on jurisdiction laid down by specialized Conventions, since in enacting those rules account was taken of the specific features of the matters to which they relate (Case C-406/92 Tatry v Maciej Rataj [1994] ECR I-5460, para 24.) Art 7 of the Arrest Convention 1952 gives a provision concerning jurisdiction in cases where an attachment is effected on a ship, including attachments based on claims relating to collisions, in which jurisdiction is bestowed on the forum arresti. Consequently the Arrest Convention 1952 is to be regarded as a specialized Convention within the meaning of art 71(1) of EU Regulation 44/2001.

The fact that Kaliakra Ltd was established in Malta and Malta is not a contracting state did not prevent the Court of Rotterdam from exercising jurisdiction in this case in accordance with art 7 of the Arrest Convention 1952 of which the Netherlands is a contracting state (art 71(2) chapeau and under EU Regulation 44/2001). 

In its judgment of 4 May 2010 (Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG [2010] ECR I-04107) the ECJ considered that the application of a specialized Convention cannot compromise the principles which underlie judicial cooperation in civil and commercial matters in the European Union, such as the principles of predictability as to the courts' jurisdiction, legal certainty for litigants, and sound administration of justice. The rules governing jurisdiction set out in specialized conventions referred to in art 71 of EU Regulation 44/2001 can be applied in the European Union only to the extent that they are highly predictable, facilitate the sound administration of justice, and enable the risk of concurrent proceedings to be minimized (paras 49, 53 and 56).

Application of the jurisdiction provision under art 71 of EU Regulation 44/2001 and under the Arrest Convention 1952 satisfies that test. Art 71 of EU Regulation 44/2001 provides, in this case, a clear rule by bestowing jurisdiction on the merits for a claim for which the attachment is effected on the forum arresti. Otherwise the jurisdiction provision fits within the boundaries set by the TNT v AXA case.