This case concerns a further appeal against a ruling in a case concerning disbursement in ship arrest.

According to an entry in the Russian ship register made by the harbour master in Murmansk on 2 September 2009, ownership of the Russian ship M/V Aliot was transferred from Nordstrand Ltd to Westimpex Ltd on 22 July 2009 in accordance with an agreement of 14 July 2009. Pursuant to orders made by the East Finnmark District Court on 17 and 21 July 2009, Solstrand AS arrested the M/V Aliot for outstanding claims against Nordstrand Ltd. The arrest was then secured by pledge, carried out by seizure of ship documents and a sailing ban.

On 7 October 2009, Solstrand AS made a further claim for disbursement against Nordstrand Ltd. The coercive basis for the claim was a document issued pursuant to the Enforcement Act § 7-2(f), ie a written notice which the creditor itself has sent to the debtor and which shows the basis and scope of the claim.

Westimpex Ltd appealed the disbursement to the East Finnmark District Court, which ruled against Westimplex Ltd on 29 November 2010. The District Court ruled that the later claim had the same priority as the arrest. As the arrest was established before Westimpex Ltd's purchase of the vessel was registered, the arrest and the subsequent debt enforcement thus both had priority over the purchaser's rights.

Westimpex Ltd appealed to the Hålogaland Court of Appeal. In the meantime, Solstrand AS had been merged into Kentom AS.

The Court of Appeal rejected the appeal. Westimpex Ltd appealed to the Supreme Court, arguing that the Court of Appeal had misinterpreted § 91(2)(c) of the Maritime Code by not taking into account the Arrest Convention 1952, which prohibits arrest of foreign ships for other than maritime claims.

Kentom AS argued that the transfer of ownership to Westimpex Ltd was pro forma, and that the Arrest Convention 1952 allows arrest in foreign ships as part of enforcement of a special coercive basis. This also follows from the 1999 Geneva Convention on Arrest in Ships, which enters into force on 14 September 2011.

Held: The ruling of the Court of Appeal is revoked.

The Arrest Convention 1952, to which Norway is bound, only allows arrests to be made on ships flying the flag of the States Parties for what the Convention refers to as 'any maritime claim': see art 2 of the Convention and § 92 of the Maritime Code. The claims to which the arrest and the subsequent disbursement apply are partly accounts payable and partly a loan. According to the information available in the case, there is no basis for considering these claims as 'maritime claims' within the meaning of the Convention.

The Maritime Code, § 91(2)(c), however, makes an exception for arrest that is sought after there is a coercive basis for claims 'as mentioned in the Enforcement Act § 4-1 first paragraph'. The Enforcement Act § 4-1(1) stipulates that enforcement of a claim can only be sought when there is a general or special coercive basis for the claim and this requirement is binding. In other words, this means that arrest can be made in ships to secure claims other than those under maritime law when there is either a general coercive basis or a special coercive basis.

There is no information in the case that indicates that the arrest was requested on the basis of a general coercive basis for the relevant claims. The arrest seems to be based on the same special coercive basis as the outlay.

The question is whether the Maritime Code § 91(2)(c) here correctly reflects the Arrest Convention 1952. The Convention allows to some extent for arrest for other than maritime claims. For private law claims, to which this case applies, it is in that sense that art 1.2 of the Convention can be applied. It is hereby determined that 'arrest' within the meaning of the Convention does not include seizure of ships as part of the enforcement of a judgment.

It appears from the preparatory work for the Norwegian provisions on the implementation of the Arrest Convention in Norwegian law - Ot.prp.nr.88 (1992-1993) p 21 - that it is precisely this exception for enforcement of a judgment that the Maritime Code § 91(2)(c) aims at. Among other things, a closer analysis is made here of whether the general coercive grounds listed in the Enforcement Act § 4-1(2), can all be said to apply to a 'judgment' within the meaning of the Convention, or to fall under the exemption for public law claims in art 2 of the Convention. The conclusion is that there is no reason to restrict Maritime Code § 91(2)(c), 'to only some of the coercive grounds mentioned in the Enforcement Act § 4-1 first paragraph'. The special coercive grounds are not mentioned in this analysis.

It follows that it must be assumed that the Maritime Code § 91(2)(c) was intended by the legislator to refer to the listing of the general coercive grounds in the Enforcement Act § 4-1(2), not to the provision in § 4-1(1). In order to avoid disputes over the Convention, it is thus necessary to interpret the Maritime Code § 91(2)(c) as if the reference applied to the Enforcement Act § 4-1(2).

The Court of Appeal's ruling is based on the outlay being given the same priority as the arrest. This presupposes that the arrest stands. The Court of Appeal's ruling is thus based on this point on an incorrect interpretation of the law. The ruling must therefore be revoked.