Arrest, Attachment, and Related Maritime Law Procedures William Tetley, Q.C." This Article maces the Admiral actin i rom back ts civilian roots in medieval [Europe and sis hom the action Emeland gradual diverged rom the Continental mode, hhegnang nthe stenth conury The ation rom and the-aret of ships in the Contemporay lw ofthe United Kingdom, the Unied Ste, and Canada are oie and Ompaned ode cin sisi conservator and its eoumterpart, the US mariame tachment “oo relay new proces employed tn modern marine (aw i the UK, and Brush Commonneati couninesthe Mireva mparcion and the Aron Piller oner—ave alo Siseused The autor concludes with ome ince commons on salient post the Are of Ships Convention 1999 andthe gent ned for greater nerationalwnoraty nti ally Important are of erie las 1898 1899 I. Intropuction sn TI, ‘THE PURPOSE AND PLAN OF THIS ARTICLE TIL, ‘THe FlistorY oF ARREST IN REM AND THE ADMIRALTY ATTACHMENT—ENGLAND. ‘A. Roman Law and tho Admiralty 1900 ‘Rem 1900 B. The Processus Contra Contumacem 2... 1900 CC. Characteristies of the Admiralty Process to Compel Appearance in Tudor/Stuart England... vw 1902 D. Gradual Emergence of Contemporary Admiralty Procedures—England. ee 1903 E, Did the Admiralty Attachment Expire in the Eighteenth Century? snes 1905 IV, Arrest IN REM—UNITED KINGDOM, CANADA, AND UNITED STATES. 1905 A. United Kingdom. — 1905 1. Amest In Rem—the Characteristic Admiralty Proceeding... = sone 1905 In Rem Process in a Nutshell. 1907 Closed List of Maritime Claims, 1908 1909 1910 Arrest to Enforce Maritime Liens... “Arrest to Enforce Statutory Rights In Rem. Professor of Lav, McGill Universiy, Distinguished Vsting Professor of Maritime ae Commercial Lay, Tulane Univesity School of La, and counsel to Langlois, Gaudreau O'Comor of Montreal ‘The auhor is indeled to Robet C. Wilkin, B.A, BCL forbisaeitance inthe preparation and correction ofthe text 18951896 TULANE LAW REVIEW [Vol. 73:1895 6. Sister Ship Arrest 1911 7. Beneficial Ownership 1912 8. Demise Charterers May Bind the Ship In Rem... 1912 9, Issue of the Writ Gives Rise to Statutory Rights In Rem inthe United Kingdom, 1913 10, Release from Arrest 1914 11, Wrongful Arest.. vo 19S 12, Amestand the Protection of Property Rights... 1915 13, Conelusion—Arrest—United Kingdom. 1916 Bo Canada ve IVT 1. tnieduction Canadian Maritime Lan... 1917 2. Canadian Maritime Jurisdiction ronne 1OAB 3. Open List of Maritime Claims eo 4. The Action In Rem—Canada. 1920 5 Amest for Maritime Liens, Statutory Richt in Rem, and Quasi-Maritime Liens... vee 1920 6. Canadian In Rem Process “1922 7. The Statutory Right in Rem Arise in Canada with Arrest ofthe Ship 1923 8, Beneficial Ownerchip 1923 9. The Demise Charterer Does Not Bind the In Rem in Canada, 1924 10. Sister Ship Arrest. “1924 11. Release ofthe Ship. 1925 12, Wrongful Arest 1926 13, Ameat and the Protection of Property Rights... 1926 14. Concusion Arrest In Rem-—Canada "1928 The United States . 1928 1. Introduction 1928 2. US Maritime Liens and Lien Law. 1929 3. Binding the Ship for U.S. Maritime Lien 1932 4, Bforcement In Rem.. ve 1932, ‘anes n Rem Under Supplemental Rule C..- 1933 6 Maritime Atachment Under Supplemental 1934 7 1937 8. Wrongfil Arest or Attachment... 1938 9. Constitutional Safeguards of Shipowners’ Property Rights. 1938 10, Conelusion Altachment and Aest— America 1939 Vi Tue Saisie CONSERVATOIRE—FRANCE.. 1940 1999] MARITIME LAW PROCEDURES 1397 A. Introduction 1. ‘BAdtachment of Ships and Other Attachment of Ships—Two Regimes... D. Claims Permitting Maritime Attachment. E_ Attachment of Ships and Sister Ships F.Attachment Procedure and Jurisdiction G H L J. issets Release from Attachment and Voyage Authorization. Wrongful Atachment Protection of Private Property Ais of hipormers . Conclusion—France.. VI. THe Marea INJUNCTION A, Iniroduction : B. Conditions for the Issuance of a Maxeva injunction... CC. “Worldwide” Mareva Injunctions. D. Mareva Injunction Procedures—United Kingdom. E. Mareva Injunctions—Canada. F. The Mareva Injunction, the Action In Rem. and the Attachment. 1955 Conclusion —Mareva Injunction. 11987 VI. THE ANTON PILLER ORDER 1958 A, Introduction... vee 1958 B.The Anton Piller Onder—United Kingdom. svn 1958, Anton Piller Onders-—United Kingdom Procedural Safeguards.. ' D. Anton Piller Orders—Canada. E. Conelusion—Anton Piller Onders VILL THE ARREST OF SutPs CONVENTION 1999, A. Introduction. General Observations on the Arvest Convention 1999 ‘The Definition of “Arest™- 'AClosed” List of “Maritime Claims” ‘Some Specific Maritime Claims . ‘Arrest of Ships About to Set Sail or Sailing....... 1967 ‘Ares for Maritime Liens and Statutory Rights InRem... Sister Ship Arrest. Limitation on Security for Release... Countersecurity and Wrongful Arrest Application of the Convention 10. Convention Does Not Create Maritime Liens. LL. Intemational Uniformity fs Essential1898 TULANE LAW REVIEW —_—_[Vol. 73:1895 IX. THE CHALLENGES... 1972 X. CONCLUSION . 1973 ‘APPENDIX. INTERNATIONAL CONVENTION OF THE ARRESTOF ‘Sius, 1999... : sens 1976 1, INTRODUCTION Essential to the practice of maritime law in any country is a knowledge of the procedures that provide pre-judgment security for claims, as well as post;judgment execution if a suit is allowed. Pre: judgment security is of the highest importance to the maritime creditor, ‘who always faces the threat of being unable to recover his debt from an impecunious or unserupulous debtor, ifthe debtor’sship—the main fasset on which so many maritime creditors depend in extending credit—should sail away without the debt having been paid. Similarly, the possibility of post-judgment execution, by way of the judicial sale of the arrested ship, is a key consideration for maritime creditors ‘concerned about the solvency of their debtors. ‘In common-law countries whose maritime law is primarily rived fiom the admiralty law of England, the action in rem is the bsie procedure on which creditors rely for prejudgment security and post-judgment enforcement. ‘The arrest of the ship or other res (for ‘example, cargo or freight) in the action in rem places the res under judicial detention pending adjudication of the claim, It usually also ‘secures the appearance in the action of the defendant shipowner and it establishes the jurisdiction of the court. If the court subsequently allows the claim, the judgment is then enforceable against the arrested res (by judicial sale) or the security given to take its place. In civil law jurisdictions, where no action in rem exists the action in personam may be combined with a “saisie conservatoire,” ot conservatory attachment! The saisie permits any proparty of the debtor (including ships) to be seized and detained under judicial authority pending judgment ‘The subsequent judgment, if favourable to the plaintiff, may then be enforced against the attached property or the security replacing it. See Wanna Terry, MaRITIMg LENS AND CLABIS 974-75 QA of, 1998) Ihersinater tty, MLC]. 2 Seed 311030, 1999] MARITIME LAW PROCEDURES 1399 The United States, in a sense, has the best of both worlds, because US. maritime law affords the creditor both the arrest in rem? ‘and the maritime attachment England (Supposedly) lost the Admiralty attachment in the eighteenth century, resulting in a. serious weakness in its maritime process compared to that available in civilian countries.’ This lacuna has only partially been filled since 1975 by the Mareva injunction. In that same year, the Anion Piller order was developed, as a tool for preserving evidence.’ Both procedures ate »pplied today in maritime ‘and nonmaritime cases alike, not only in England, but throughout the British Commonwealth On the international plane, more than seventy nations are party to the Arrest Convention 1952." The Convention provides a legal regime covering all aspects of arrest and attachment of seagoing ships before judgment, but has undergone @ major review and bas been replaced as ‘of March 12, 1999 by a new convention (see Appendix). In consequence, now would seem to be a propitious moment to take a fresh look at the various procedures of pre-judgment security in the maritime law of common-law and civilian jurisdictions, as well as al the proposed new intemational convention on the arrest of ships. HL THE PURPOSE AND PLANOF THIS ARTICLE ‘This Article will first review the historical background of the action in rem and the Admiralty attachment in England. It will challenge again, but briefly, the prevalent view that the English ‘Admiralty altachment is extinct, The main characteristics of the action in rem in the United Kingdom, Canada, and the United States will then 3. Specie rules on arvest in rem in the United States are established by Supplement le Cof the Suppemenal Rules for Cerin Admiralty and Maritime Clans, Fon, RCW. P(berinafer Sup. Rules) 1 OY spate rules on marie stachent inthe United Snes are established by ‘supplemental Rule B of the Supp. Rules, spre note 3. The aftschrent leo exists Independent of those rules, by vie of te general maritime law ofthe United Stes. See Schifuharagerclscha Leonhardt & Co. v. A. Botaccht SA. de Navegacon, 773 F.2d 1528, 1551-33, 1986 AMC 1, 4.9 (1h Cir. 1985) 6 SecTentey, MLL, sypr ste I, at 87, 973-77, 1029.30, 10323. & ‘See Muvevs Compania Naviea'S.A. 8, Intewatonal Bukeavers, (1975) 2 Lloyd's Rep, 509 (CA) ne Ann ils KG v. Manufctring Processes Li, 1976 ch. $5 (CA. 3. See ntervatinal Convention for the Uaseaton of Certain Rules Relating to the ‘Aret of Seaoing Ships, moped at Brusel, May 10, 1952, an in fore as of February 24, {956 eremafer Arrest Convention 1952), See generally Fravcesco,BENLNGIEL, ‘Bumtntoon ov ARRUST OF Sirs A CCBIMENTARY ON THE 1952 ARREST CONVENTION (2d ff, 1996) fescinatercted as BERLINER, Ata OF Sims), TETLEY, MLC, supra note Tot 1430-45 reproducing Anes Convention 1952),1900 TULANE LAW REVIEW (Vol. 73:1895 bbe reviewed, with emphasis on the role of arrest in the process. U.S. maritime attachment will sls0 be outlined. The Article will then examine the civilian saisie conservatoire, as practiced in Frarce, after which the Mareva injunction of the United Kingdom and other British Commonwealth states suc as Canada will be studied, as well as the ‘Anton Piller order. Finally, the Article will treat briefly the attempts at international unification of law in respect of the arrest of ships, 1999, adopted March 12, 1999 in Geneva’ at a diplomatic conference convened by the Intemational Maritime Organization (IMO) and the United Nations Conference on Trade anxl Development (UNCTAD)."" IIL, THE HISTORY OF ARRESTIN REM AND THE ADMIRALTY ATTACHMENT—ENGLAND A. Roman Law and the Admiralty Action In Rem Since at least the early nineteenth century, the origin of the English Admiralty action in rem has been traced to the actio m rem of Roman law. Arthur Frowne, in his monumental work, 4 Compendious View of the Civil Law and of the Law of the Admiralty, wrote: “This remedy in rem against the ship or goods is founded on the practice of the civil law, which gives an actio in rem, to recover or ‘obtain the thing itself, the actual specific possession oft..." More recent legal historians, however, have questioned the Roman pedigree of the action in rem. They point out that by the sixteenth century, English Admiralty Court judges were hearing in rem claims of a purely personal nature, having none of the proprietary character required by the Roman actio in rem."" Moreover, they can find no indication in the case law of the late medieval or early modem period that anything resembling a maritime lien or a ship hypothe ‘was necessary to found the Admiralty in rem action agains ships.” B, The Processus Contra Contumacem Rather than being derived from Roman law, English Admiralty in rem actions are derived, in the opinion of at least some legal historians 9. See UN, Doe, No, A/CONF.886 (Mar. 12,1999) To, _See Dra Arils for 2 Convention on Arrest of Ships, UNCTADAMO Joint Intezovernmenl Group of Experts on Mirtime Lins and Morgages and Relat Subjects, UN Doc No. IGE(X)S, TD/BIGE. 1, LEGIMLMA2 (Apr 14, 1997) Tr Anat BROWNE, 2 A ContonyoUs VIEW oF Te CNL LAW AND OF THE LAW ‘ort Annals 99 (1880) tereiater BROWN, Civ. LA) Ta, See Hate & Pnbav000 ON ADMIRALTY JORSDICION at xxl DEC Yale eds, 1992). 1h Seid 4. richard 1999) MARITIME LAW PROCEDURES 1901 today, from a process of arrest of property to compel appearance of the defendant, a procedure developed in medieval Europe and firmly established in England by the fifteenth century. This processus contra ccontumacent, in use on the Continent by the fourteenth century, was described by an anonymous Italian civilian author, an extract from whose desctiption was transcribed into the Blacke Boke of the Admiraly" under the title Ordo Judiciorun.”” tn England, the procedure was well established in the Admiralty Court by the sixteenth century and it appears to have been somewhat different from the Continental model. It is described in the account of the Court's process written by Francis Clerke, a proctor in the Court during the reign of Queen Elizabeth I." “The primary purpose of the process was to counteract the defendant's contumacious refusal to appear before the court and contest the suit brought against him. In England, the person and/or the property of the defendant in the jurisdiction of the Admiral could be arrested by the Admiralty Marshal or other officer at the same time as the defendant (or anyone else having, an interest in the property) was cited to appear” In a second stage, the deferntant received a series of citations to appear, and after four defaults by him, the plaintiff would formulate his claim in the form of a aft sentence or article upon first decree." The Admiralty Court, in the “first decree” (primum decretum), could then award possession of the property arrested to the plaintiff on grounds of the defendant's contumacy.” Ta. See 1 BLacky Booxs oF rte Ananeats¥ (London, Sit Tavers Tis el, 1871- 76, 18, Seed at 178-220. Tete Ord Jdicorum vas piven to the extract by Twi 16, See FRaveis Cornke, Pass Surmine CURIE ADMRALTATS 61-9 (1829) [5 Inthe Ondo Juticsorum, tere could be no gueton of conumacy until the fend bat tezeved the cation England, by the time of Henry VIM, however, the Stretof the defen’ propery was done cvtemporanousy with the cation of the {tend asa kind of poe-emptivesrike" Ths was sified (by racon, for example) on ‘he prod thet the faite to respond 40 the ciation Was an immediate contunacy. The rial reason, however, was the cae and speed with which the defendants min asset, he ‘ip could leave thejslchon. See HALE a Fuser W000, supra ote 12, xi TR Soeid asi 15, See Cienn, supra note 16a 61-49, 81-86; sea Hats & FLEETWOOD, spr rote 12, a an the ovina Cotinentl poet, a second dere (secundum decretan) tras needed in an eto persona, order to eater ownership ofthe rete propery t the plan ater pesod of time. In England, however, the second decree seems to have ‘sed ite part Admiralty passe and eventually ceased to appear inthe case La, ‘Bik te dation between the ato nro (taco reals) andthe ato in persona {or acto personals) was pot of grea sgnicanceAncher dsinction was that the {Cetinenh procedure rane possession of the res sought in an ati in rem, Bt oaky umody afte property upto dh amount ofthe indebredess in an acto in persona.1902 TULANE LAW REVIEW (Vol. 73:1895 Characteristics of the Admiralty Process to Compel Appearance in Tudor/Stuart England ‘The English Admiralty process by citation, defaults and first decree, unlike the Continental processus contra contumacem, made litle distinction between the actio in rem (or acto realis) and the actio in personam (or actio personalis) Its chief characteristics were as fallows: (1) _ Arrest of the person of the defendant was the primary mode in which the process was exercised, with arrest of his property being a subsidiary mode, although the modes were alternative and could also be combined.” (2). Any property of the defendant in the jurisdiction (not only his ship, but also his goods) could be arrested.” In fact, arrest appears to have extended to goods of the defendant in the possession of a third party, 8 well as to goods of a party indebted to the defendant and even, {o incorporeal rights.” Sister ships could also be arrested." (3). The possibility of arresting any goods of the defendant in the jurisdiction was a particularly useful (and often the only effective) remedy to secure the plaintiff's claim where the defendant himself was ‘out of the jurisdiction (as frequently happened in the case of claims Against the seafaring foreign merchants of those times).* This aspect Of the procedure has been seen in retrospect as the origin of the “Admiralty attachment” (as it later came to be called in the eighteenth. 20. See HALE & FLEETWOOD, cypra note 12, a aivali, The Admiy Cout in “Talor and Start days was amaze ofthe Roman (i other words, evil) law distnton between actions m em ad in preonary, a well at ofthe Roman acto Mypotecarta, bat those distinctions didnot contr the originating form of procedure, which ceuld take the Form of an action aginst the person, an ation aginst his prope ofboth. See at cx, 21. Sod. tex, 22, See | Sratct PAEAs INTHE Cour OF ADMIRALTY at ex-bext Reginald 6. ‘Marsien o. 1982) (TA}et of goods wos quite at fequent a aes of the ship, and it Sins fo have been ini what fe goods were, so Tong as they were goods of the ‘efenant and were within the admia’ json athe ime of aes". Ba. Sec HALE & Feesrw0oD, supra mote 1, atcxxai nT (cing CLERE, supra note 16, 2175-70), See Thorton v, The Ezabeth Bonaventure & Jobson, owner (1865), ported in 2 Setscr Putas supra note 2, a 13 25. See CLENKE, supa pote 16, at I-69. Clerk suggests taf he defendant was ‘out ofthe Kingdom or had ahscondd, his gods or ship could be sree in whomever’s bands they were, "The deo’ absence was probably nt intended a a eotion of such fest however, but wis probably mentioned to sres the uli ad at imesh necessity {St arestng property in eases of auch physical absence from the jursiton.Warans of lavest fom the pee shove cleat tat ship and goods could be arrested even where the On the other hand, the U.K. statute permits sister ship arrest ofa vessel beneficially owned by a charterer (including a time or voyage charterer) or a person who was in possession or contro} of the “offending ship” if that party was personally liable on the claim when it arose. In Canada, however, only ships beneficially owned by the owner of the “offending ship’ may be arrested.’ Also, in Canada, any change in the “beneficial ownership” of the “offending ship” occurring after the cause of action arises and before the action in tem is brought causes the court to lack jurisdiction over the sister ship,"”’ which is arguably not the case in the United Kingdom." 11. Release of the Ship An arrested ship may be released in Canada, as in the United Kingdom, on the giving of security, whether in the form of a bail bond, a payment into court, a bank guarantee or a P & I club letter of undertaking. The quantum is at the cour’s discretion, but generally the amount must be sufficient to cover the plaintiff's “reasonably arguable best case,” together with interest and costs, without exceeding the value of the vessel." The security replaces the res!” and usually prevents its re-arest for the same claim The claimant is generally not required to give countersecurity, although the Federal Court Rules, 1998 do authorize the court to order a plaintiff o give “security for costs” of the defendant in the action, in fa number of specifig situations (for example, where the plaintift is ordinarily resident outside Canada, where he has not provided an address or has provided an incorrect address, and where there is reason 17S. See Supreme Court Act 1981, §21(KOXA). 176. A ship owned bythe parent corporation ofthe company that ovms the “fending ship" is rota ser vel ofthe “ofending sip” ecasse “owner” under § 438) means etistred over” See Hollandsce Aarmaming Maatschapp bv The Ryan Lest [1997] TISRTR.67,69 (ed. Ce) 77. See Norn Sales Cop. v-The Beish Tay [1994}77 PER. 8 (Fed. C1) T7R._ See THILEY, MLC, supra note I, at 1041-42 (comparing UK. and Canadian law on ater ship srs 179, See Amican Navigation Ine. v Densan Shipping Co. 1997] 143 ER, 284,290 (Fed. Ct), modified on ether grounds, (1997) 137 ETR. 132 (Fed. Ct; Alante Shipping {Cendon) Lid The Captain Forever 1995] 97 PLR 32,34 (Fed. Ct; Taiyo GyogyO KK 1 The To Ha [192] 48 FR. 89 (Fed, CU) Argosy’ Seafoods Led. v-Allaie Bounty [i992] 45 E:T. 114,120 (Fed. Ox) se alo Tersey, ML 180. See NM, Paterson & Sons Li. v- The Burchglen (1990) Freighter (Steamship) Agents Co. The Number Four [1983] 1 FC. 852,855.571926 TULANE LAW REVIEW (Vol, 73:1895 to believe that the action is frivolous and vexatious and that the plaintiff would have insufficient assets in Canada available to pay the ‘costs of the defendant if ordered to do so)."" 12, Wrongful Arrest Canada follows English admiralty law in condemning the arresting party in damages for wrongful arrest of a ship or other res only where the court decides that the arrest was prompted by bad faith (mala fides) or gross negligence (crassa negligentia)." 13, Arrest and the Protection of Property Rights Canada has no entrenched constitutional principle of “due process of law” comparable to the due process concept of the Fifth and Fourteenth Amendments to the United States Constitution. Both “due process” and the “enjoyment of property” are mentioned in Canada’s 1960 Bill of Rights," but the bill was never entienched in the Canadian Constitution and so can be amended like any other statute. Furthermore, it applies only to matters falling uncer federal {not provincial) legislative jurisdiction in Canada and is purel declaratory, rather than exécutory in nature, having no “teeth” permitting incompatible legislation to be struck down for violation of the rights that it declares." In addition, “due process of law” under the Bill of Rights of 1960 has been held to require only compliance with the legal processes recognized by Parliament and the courts." ‘The Bill of Rights is therefore of doubtful utility in challenging the validity of any arrest in rem that has been effected in compliance with the applicable statute and regulations. 161 Soe Fe. Cr, Rule 416(1X0)—{h see ao Fegusonv. etic Transp. Ld 1996} 118 FER. 154 Fed Ct) (Ceided unde former Rule (1) on seus fr eos) Sch security given Oy a payment int court or he filing of bond. See FED Cr. R Rule a8 182, Soe Armada Lines Lid Chaleur Festlzers Lid 1997] 2 SCR. 517, 628; see fale TeV, MILC, mypra note 1, a 1058-62: Robert Margolis, Not, Danoges or the Fro Ares ofa Vesc The Vnerable fle Confirmed, (1998) LuovDs Na. & Coxe Loin 13, Soe Canaiin Bil of Rights, SC. 8 9 Eliz 2, ch 44, § 1a) (1960) (Can). IRs, Soe Teruey, MIC, sprarnae ft 107. IBS. Soe Cur v The Quien [1972] SCR. $89, 916; Regina v Appleby (No.2), 76 DLR Gd) 110, 118 (NB. Supe Ct. App Div. 197Iy see alo TILEY, LL-C, supra ote 1a 1008-1, 1999) MARITIME LAW PROCEDURES 1927 Unlike the Bill of Rights, the Canadian Charter of Rights and Freedoms" of 1982 is entrenched in the constitution; it applies to provincial as well as federal matters and is executory. Nevertheless, the Charter does not expressly protect private property rights, and itis unclear to what degree, if at all, the freedom from “unreasonable search and seizure” under section 8 could be invoked successfully by a shipowner to contest the arrest of his vessel without prior notice or hhearing."” In addition, certain Charter provisions apply only to individuals, not to corporations, and are therefore ineffective in protecting ‘the rights of most shipowners." The possibility of allerative relief, through an action in damages for wrongful arrest, the importance of preventing the vessel leaving the jurisdiction, and the ‘general principle of section 1 of the Charter, by which the rights and freedoms guaranteed are declared to be “subject to such reasonable limits preseribed by law as can be demonstrably justified in a free and democratic society,” could well render the Charter ineffective in challenging arrestin rem on section 8 grounds." Nevertheless, such a challenge remains to be taken in Canada and, if pleaded skillfully, ‘might result in a decision favouring the shipowner."” Canada, like the United Kingdom, permits a party wishing to prevent arrest of the res to enter a caveat warrant against arrest, by ‘which he undertakes to give bail in respect of any action in rem within 186, Pat of the Consttion Act, 1982, which itself SchedleB tothe Canada Act, 1982, eh 11 (Eng), by which the Canadian Contuon vas “epatiated” fom England. Seo Canada Act, 1982, RSC, App I, No. 4 (1985) Can) 157 "aris Caper evising wer nok to calenge te ei ad confiseion of @ tug for suspected drug offences in Paquete v Ewopean Marine Transporters {1993} RIQ. 108 (Que, CA), but Be sult was dismised on jurisdictional ‘rounds See generally Tey, MLL aypra note la 10141. Tn Jose Perla E Hos, ‘Sot Canada [1997] 2 FC. 8, 108-08, eecton fof the Chater was invoked to challenge the “ut” by Canadian autores ofa Spanish fishing ves cn the high eas fr fisheries tenses under Canali av during the 1995 "rbot war” between Canada and Spain. The {Gout eld that the cla as sated relat tothe perceived discriminatory tearmeat by ‘Cano of Spanish and Portuese fishing vessels, and as such was concerned with equality Fights under eetion TS ofthe Carer, rather an wih unreasonable search nd etaute under section & TBS. See Jose Perera E Mo, (1996) FC. at 107-08 (holding that section 1 of he ‘Chater, concerning equity before the law, was inapliabe o corporations, and therefore ‘ould not be invoked bythe corporate ves! owner Come for bth pats agree thatthe Corporate pint coud nt cain rights under seton 7 ofthe Chater which guarantees the ‘igh to", liberty ad security of he pereon and the right nate depeived there except inatcordance wih the principe of fandarentl see" 18). See general Tene, MIL. pra ole Ia 011-16 190. Cent case lw of the Soprere Cour 6f Canada now hols that “Charter sales," a8 well ie rules may be appafed to. These “values” might lend suppor to any ‘rental Charter challenge ofthe ality ofan anest in rer1928 TULANE LAW REVIEW (Nol. 73:1895 three days of being required to do so." The caveat warrant then enables him to recover costs and damages if the party at whose instance the arrest warrant is issued is unable subsequently to satisfy the Court that he should not be so liable." This procedure, however, is a far less effective safeguard against unreasonable arrest than a ‘general and constitutionally entrenched principle of “due process.” 14, Conclusion—Arrest In Rem—Canada White fundamentally similar to in rem proceedings under English law, the action in rem and arrest in Canada do have certain distinguishing features that result in important differences. Much more distinct from English law than Canadian maritime lav, however, is the admiralty law of the United States. It is of particular importance to note that maritime claims that provide rights of ship arrestin Canada are not restricted, but form part of an open lst C The United States 1, Introduction Because the United States broke away from the British Empire at the end of the eighteenth century, it retained the Admiralty attachment, as well as arrest in rem, as procedures for the enforcement of maritime claims. ‘Today, the specific rules on both procedures are found in the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, at Supplemental Rules B (attachment) "* and C (arrest). In consequence, a maritime claimant in the United States may choose to take: (1).an action in personam, (2) an action in personam with attachment under Supplemental Rule B, or (3) an action in rem, with arrest under Supplemental Rule C.°° Another hallmark of US. ‘maritime procedures is that both maritime attachment and arrest in rem are subject to certain constitutional safeguards rooted in the “due process” clauses of the Fifth and Fourteenth Amendments of the United States Constitution. Before examining those matters, 191, See Fup. Cr. R, 1998, Rule 493(1), Form 493A, 192! Seed Rule s9i(h, 193. See FED.R. CN. P Supp, Rule B. The atachment also exists unde” the “genera ‘maritime lw" ofthe US, even If the prereguisies of Rule "B™ are not flied. See Schifaharspeelscha®t Leonhard & Co vA. Dotiscsht S.A. de Navegscon, 73 F.2d 1528, 1831-35, 1986 AMC 1,49 (1th Ci 1985) 198. See Feb. RCW. P Sopp Role C. 19S. See TETLEY, MLC, spre pote 1, at 938. 1999] MARITIME LAW PROCEDURES 1929 however, it is first necessary to note the particularities of US. maritime law as regards maritime liens. 2, U.S. Maritime Liens and Lien Law Because of the United States’ civilian maritime law heritage,” ‘maritime liens in the United States have long been regarded as substantive rights, rather than as procedural remedies referred to in jurisdiction statutes, as they are in the United Kingdom and most British Commonwealth countries. Moreover, they have been codified (except for a definition of the term “maritime lien” itself), in the Commercial Instruments and Maritime Liens Act,” and its predecessor statutes, which further confirms their substantive ‘character as established prior to codification." The statute also provides rules on ranking.’ The “personification” of maritime liens, whereby the vessel is conceived of as a person responsible for the claim agains it, contributes to this substantive understanding of liens in the United States.” Secondly, there are no statutory rights in rem in U.S. maritime Jaw. All maritime claims codified in the Act are secured by maritime licas, which arise with the claims, follow the ship and (frequently although not always) outrank ‘ship mortgages. Claims for “necessaries” (supplies, repairs, bunkers, tc), general average 196, Soe Wiliam Tele, The Gora! Marie Law-—The Lex Mating, 20 SYRACUSE Jw L, & Con 105, 121-28 (1994) 17. 46 USC. §§ 30101, 31501-31304, 31321-81830, 31341-3134 (1997) Tere, MLC. supra note I at 14495 cprodacing text of As). Thi staue i sometimes aso {alld the Martie Convert Inaruents and Liens Act or sng older ies, he Federal Martie Liens Actor the“Ship Morgage Act of 1920 wr amended See Tenizv, MLC, Zupra note Iya 401. The Act supersedes any U.S. sate sues purporting to creat Inartme liens enfreesble by civil actions in em, Soe 46 USC. § 31307 sce also Silva. IMIV Fist Lady 28 F Supp. 24 35, 584, 1998 AMC 1689, 1681 (SD. Cal. 1998). Long before thir caifeton tthe former Federal Maritime Liens Act, mame ins were ‘ecognized and enforced ss substantive rghsin America Se, eg, The Bed of Paralise, 72 US. (5 Wall 545, 555 (1866) (raitime liea on cargo, The Nest, 18 F. Cas 9 (CCD. Me. I831) (No, 1,126), The Rebocea, 20 F Cas 378 (D. Me, 183) (No. 11,619}, The ‘Young Mechanic, 30 F. Cas. 873 (CCD. Me. 1885) No 18,80) (maritime lin ownership). ‘Seealio Gabon: & BLAcr, Taz Lav OF ADMIRALTY 115 Qe. 1979) 198. Se Hes, Ine. Anomina Ravemate dh Aramento SPA. 993 F. Supp. ‘9,993, 1998 AMC 47, $0 (SD. Tex. 1997) (ting Trina Foudy & Fabricating Ld MN KAS. Camila, 966 F.2d 613,615, 1992 AMC 2636, 2538 (I Ith Ci. 1992); Grea. [MV Kuta, Supp 299, 103, 1998 AMC 893, 856 (N.D.N.Y. 1998) 199, Sera6 USC. §31326(0) 200. Onthe “personification” end “procedural” theories f mast ins, see TTL, MLC supra ote Ty st 3-85, se alo Boston Berm Cuising, Lid.” NUV Roya Majesty, No. Civ. A. 97411276040, 1997 WL 882597, *3, 1998 AMC 1179, 1182 (D. Mass Sept 10,1992) ("The teortial ase ofthe lie esis the tion that he ship isthe ‘til wregder and thus should beheld ble othe allege Hoss"1930 TULANE LAW REVIEW [Vol. 73:1895 contributions, towage, and marine insurance premiums, for examp all give rise to maritime liens under U.S. law. Moreover, “necessaries is defined more widely in the United States than in the United Kingdom or any Commonwealth country, so that maritime liens are recognized for virtually any goods or services of benefit to the navigation, management, business or purpose of the ship.™" Third, maritime liens in the United States are of two types, the distinction relating to ranking. “Preferred maritime liens"? include wages of the crew and master,” salvage (including contract salvage)" damages arising from maritime torts; wages of a stevedore (in other words, a longshoreman) when employed directly by the shipowner, master, manager or certain agents;®® and contract maritime liens” which’ arise before preferred ship mortgages." Preferred maritime liens outrank preferred ship mortgages. Other (nonpreferred) maritime liens are contract maritime liens accruing after the filing of preferred ship mortgages, which generally rank after such mortgages. 201, See Tenay, MILG, spre 1, a 588-89, 592-94, The Ui Stan, fn example, was quik 1 ecopnize amare le for contains leasing. Sev 3609-13, 203, See 46 USC. §§ 3130165), 31326(0X1) (1997), seals Calogeras Maing, Ie ¥.MUV Ocean Leader, Nos. Civ. A. 96614, 96-3616, 97-3626, 96-3655, 1997 WL 638084, "23, 1998 AMC872,875 (ED. La. Ost. 21, 1997). 1203, See 46 USC. §31301(5ND) (incldng maintenance and cue cans) 204, ‘Seo. §31301654P) 205, ‘Se id, §31301(5XB) (incloding personal injury and death chins, property _damnage claims and cargo ot ens). 206. See id. §§ S1301(S)), 3134 207. See id. §31301(4) ising conract maritime liens secure chims, for “necessaries” Including, for example, supplies, eps, wage, the use of dry dock oF maine away, plotage, treo, carp damage ins in eomact, and cont charterer Hine); TeILev, MLC, swpra noe yt £7475. U.S. marie la also very generous in the claims tacept at mecestres” Ser, eg, Commas Fin, Ine 9. The Vessel Rese of Rock River, 71 F. Sopp. 234, 236, 1994 AMC 1519 (AMC reporter susarzing eae) (ND. M1991) ok overland transportation of a vessel was held foe "neces," {ving rie os marti le or the anor cont). The United States, tits eed, alo lod the world in recognizing claims for contin leasing x legitimate elas fer necessaries lhovgh sch elaming ives rs o maim lies only whee the containers earmarked for or delivered tom ip and londed aboard. See TETLEY, MLC, supra Rate I t 609-13; sce aso Silver Siar Enters, Ine. Straacca MN, 82 F366, 668-69, 1996 AMC 1715, 1717-19 (thie 196). 208. Seo 46 USC. §31301(3KA). “Prefered ship mortgages” ce primarily mortgages on US, documented veses duly executed and filed under 46 USC. 6 31521 51322, although foreign ship morgage an! hypohecations, ly executed snd registered ‘outside the United Stes, also quay at preferred ship morgoves. Ser 46. USC. §§31301(6(A)4B), 31321-31322 see aleo Chlogeras Marine, Ine. v MPV Ocean Lead, Nos. Civ. 963614, 96-3616, 97-3626, 963658, 1997 WL 656984, 2, 1958 AMC 872, B14 (ED. La Oat 21,1997) 1999] MARITIME LAW PROCEDURES 1931 Fourth, U.S. maritime lien law contains two chauvinistic ranking rules, one of which subordinates foreign preferred ship mortgages that hhave not been guaranteed under ttle XI of the Merchant Marine Act, 1936, to US. preferred ship mortgages” ‘The other rule subordinates forcign preferred ship morigages that have not been guaranteed under title XI of the Merchant Marine Act, 1936, to liens for necessaries supplied in the United States.” Fifth, maritime liens for necessaries, if ordered by a party authorized or presumed authorized to order necessaries for a vessel, arise without the supplier having to prove that credit was given to the ship?" A necessaries lien may therefore arise, even where a prohibition of lien clause in the charterparty forbids the charterer from. incurring liens on the vessel, unless the vessel owner can prove that the supplier had actual knowledge of the prohibition when the lien arose"? This is also significantly more liberal than English and Canadian law, where the necessariesman continues to have a duty to inquire, which, if not fulfilled, can cause him to lose his statutory right in rem." The contract underlying the necessaries claim must, however, be a “maritime” contract falling within US. admiralty jurisdiction?" The contract must also have been performed, at least in par, in order to give rise to the lien."* 209, See TELE, VNNATIONAL CONFLICT, supra note 74, a 40; TenLEY, MLC. supra nee st 87473, Note, however, that when gunanted under Tie XC ofthe Merchant Marine Act, 1936, 46 USC. App. §§ 110, 1271-1295, forcignprefered-ship mortgages yoy te sume ranking a US. pefereship morgage. See TILEY, MLC. supra nate I, 514,674 B10. See 46 USC. § 313266); Tene, InTERNATONAL CONRLICY, pra note 74, Sal; Tenuey, MUL, supra note I at 874-75, Dil. See 46 USC. 31382(013). Wher the necessaries claim relates 10 the soply of container, however, it necesary to prove ha the containers were earmarked or oF ‘lelvered to specific ships and loaded aboard them. See TELEY, MLC. sipra note 1 60. 312, See Teny, MLC, sypra note |, t 59.600, 604-05. This important provision ates fom 1971, when it as added tthe forer U.S. Marie Liens Act. 213. See Trey, MLC, sypra note a 566, 570,572 214, Serid 590 21S. See ad. o 596-613. The “exocatory contact doting.” precluding liens for ‘executed enact also applies in the Unite Sate to contract marie ens er seamen’ ‘aes See ids 298. Ir alo apis to carg damage Sr sf a 722 Finally applies 0 Ireach of chaterary, See ult 726-27; see alzo Nvieos Intet- Americanos, SAL v. MV Vasa Expres 20 F3d #04, 313-4, 1997 AMC 2845, 285687 (It Cit 1997), EAS.T, Ine. v, MM Ani, 816 F24 1168, 1178, 1989 AMC 2024, 2032:33 (Sth Cir, 1989), Boston Bermuda Crising, Lid. v. MV’ Royal Majesty, No. Ch. A. 97-11276-GA0, 1997 WL 82597, *, 1998 AMC 1179, 1182-84 (D. Mass Sept 10, 197),1932 TULANE LAW REVIEW (Vol. 73:1895 3, Binding the Ship for U.S. Maritime Liens USS. law is more liberal than U.K. or Canadian law in defining ‘who may bind the vessel in rem for maritime liens. This power is not restricted to owners and demise charterers. Rather, necessaries may be procured for the vessel by the owner, the master, a person entrusted with the management of the vessel at the port of supply, or by an officer or agent appointed by the owner, a (time or voyage) charterer, an owner pro hac vice (in other words, a demise, or bareboat, charterer) or an agreed buyer in possession of the vessel. US. maritime lien lav, unlike Anglo-Canadian law, does not distinguish between “legal” (registered) shipowners and “beneficial” owners of ships or their shares. “Owner” means registered owner of the vessel itself 4, Enforcement In Rem Both the preferred ship mortgagee and the maritime lienor, under US. law, have a lien enforceable by a civil action in rem.?” Enforcement in rem is possible against both U.S. and foreign ships. As in most other countries, however, no lien may be asserted in the United States against a “public vessel" Arrest or seizure of any vessel owned, demise chartered, or operated by the U.S. govemment, 1s well as the creation of any lien against a public vessel, are prohibited by the Public Vessels Act and the Suits in Admiralty Act.” Ships owned and operated by foreign states or their “agencies or instrumenialities” are also exempt from pre-judgment arrest or seizure, under the Foreign Sovereign Immunities Act,” but only in respect’ of their govemmental, noncommercial activities” 216. See 46 USC. § 313416), Teni2y, MLC, supra note I, a 60003; se ato Integral Cont! Sys. Corp. ¥. Cons Edison Co, 950 F. Supp. 295,23, 1998 AMC 1905, 1908.09 (SDNY. 1998) 217. See 46 USC. §31325(a), OXI) (tegming the prefered mortgage lien); id §§31301(8), 31325001) (epuring prefered maritime lens, ld. § 31322(X1)—-C) (Geparding tartime lens for ecessafes); sce also Supp. Rule C(), spra note 3 {persting an son i emo enforce any martin en). 218." See 6 USC. §§ 30101(3), 313420). 219. Tapp § 788. ng? HBV TD52 se abo Tey, MLC, spre ne | 59798 95,199 0s 221. 2BUSC.§§ 1330, 13329), 1391), 141(8, 1602-1611 1997. 222. Sec §§ 1604, 1605()2),160s{b); Coastal Cargo Co. MIV Gustay Sue, 942 Supp. 1082, 108487, 1997 AMC 133, 196-201 (ED. La 1996) See generally Tetey, MLC ysupna note 1, 3¢983, 1172-80 1999] MARITIME LAW PROCEDURES 1933 Nevertheless, arrest is permitted, even against a state-owned foreign ship, to enforce a preferred ship mortgage.” Arrest In Rem Under Supplemental Rule C ‘The action in rem in the United States, under Supplemental Rule C, permits the arrest of any ship or other maritime property to enforce a maritime lien, provided that the res is within the territorial jurisdiction of the federal district court concemed at the time the suit is filed or during the pendency of the action.” Arrest perfects the lien, obtains jurisdiction, and procures prejudgment security for the claim. Under Rule C, arrest is oblained by the filing of a complaint, verified on oath or solemn affirmation, accompanied by an affidavit. Judicial review is required before a warrant of arrest. may issue (Rule C(3)), unless “exigent circumstances" make the review “impracticable.""” The warrant of arrest, accompanied by a summons to the defendant, are issued by the clerk, on the order of the court, and the Marshal arrests the vessel by posting the notice of arrest aboard the ship and serving a copy of the complaint and warrant upon the master or person in charge.” ‘Any person claiming an interest in the property arrested is entitled to ‘a prompt post-arrest hearing, also compulsory under Rule E(4)(0. ‘The vessel may be sold to satisfy the lien claim, but if the sale proceeds are insufficient to cover the claim, the owner is not liable for the balance, because the action in rem is directed exclusively against the ship or other res that has been arrested.” 223. S028 USC. § 16106). 224._See Navieros Ihe Arvticnosv: M'V Vasiia Expres, 120 3d 304,313, 1997 [AMC 2845, 2856 (Ist Cr 1997), Sembawang Shipyard, Lid. ¥. Charger, In. & MV Charger 985 F.24 983,987, 1983 AMC 1341, 1545 (Sth Ci. 1992); Rainbow Line, Ine MV Teil, 480 F24 1024, 1028, 1973 AMC LI, 1436 2d Cx. 1973) Garcia. MV usar, # F.Supp. 24 99,103, 1998 AMC 893, 896 (N DNV. 1998). Supplemental Role Ci) ako authonecs an ation in rem whenever a sate ofthe Unite Sates provides for 3 ‘nantime action in rom. Rule Cares fe not avaiable to enere feign statuary igh in em, however. Se Trndad Foundry & Fabeaing Lil. vo MV KAS. Camilla, 962 F2d (15, 616-17, 1992 AMC 2636, 268 (I10h Ci 1992), Heimer, Ie. v.Anomina Ravennate 6) Armanenio§ PA , 995 F, Sip 990, 994-98, 1998 AMC 4, 52 SD. Tex. 1997), vacated ‘nother grounds, 132 F.3d 264 1998 AMC 9B? (5th Cr 1998) 225. See Republic Nat Bank v. United States, 506 US. 80,84, 8849, 1993 AMC 2010, 2013, 2018-16 1982) 126. ‘Soe AiyesaPpeine Serv. Co. v. The Vessel Bay Ridge, 703 2d 381,384, 1983 AMC 2719, 2721 Ot Cit. 198). 227. See Sopp. Rule C3) supra note 4 228. ‘See Supp. Rule C2} (supra note 3; se also US. Dupagtaser oF Jusnce, [Masato DnateD States Mansiets 63 (1986), epradued in 1987 AMC 104] -67. "29." See Bay Casino, LLC. v- MIV Royal Empress, No. 98 CV 2333 (8), 1998 WL 0672, *2, 1998 AMC 2228, 2233 [EDN Aug 21,1998).1934 TULANE LAW REVIEW (Vol. 73:1895 United States federal district courts also have taken a kind of “constructive in rem” jurisdiction over shipwrecks, including, wrecks lying on the seabed in intemational waters, in order to protect the rights of wreck salvors. ‘This jurisdiction is defended on the somewhat questionable ground that the district court has jurisdiction where artifacts from the wreck are brought into the district by the salvors.*” 6. Maritime Attachment Under Supplemental Rule B Supplemental Rule B(1) permits @ claimant having an in personam claim against a defendant that is cognizable in admiralty to altach the goods or chattels ofthe defendant, or the latter’s credits or effects in the hands of gamishees, within the district, when the defendant cannot be found in the ‘district. ‘The attachment thus permits the assertion of jurisdiction over a defendant’s property located within the district even though the court has no in personam. jurisdiction over the defendant.”" Derived from the general maritime law, with its civilian antecedents, maritime attachment in the United States resembles the saisie conservatoire, or conservatory attachment, of the civil law.” The attachment ensures the defendant's appearance and satisfaction in the event the suit succeeds.*® ‘Attachment is not dependent, as is arest in rem, on the existence of a maritime lien or preferred mortgage lien, but necessitates merely an in personam claim against the defendant that falls within U.S. admiralty jurisdiction.™ The attachment is not restricted, as is arrest n rem, 10 maritime property (ships, cargo, freight, bunkers), but may be taken against any goods or chattels ofthe defendant localed within the jurisdiction of the federal district court seized of the claim, as well 230, See Tease Savors, ne v The Unidentified Wrecked & Abandoned Ssling Vessel, 640 F2 S60, 865, 981 AMC 1887, 1864 (Stk Ci. 1981), BMS. Than lev. The Wrecked & Abandoned Vessel Believed tobe the RMS. Tac, 9 F.Supp 24 624, 632-34 1998 AMC 2421, 2432-35 (ED. Va 1998), Maes I In. The Uniden, Wiecked & ‘Abandoned Vest, 952 F.Supp. 825, §28, 1998 AMC 484, 487-488 (SD. Ga 1997), Moyer ‘The Wrecked & Abandoned Vessel Known ae The Anikea Dori, 836 F.Supp 1099, 104, 1994 AMC 1021, 1025.26 (DJ. 1993), 231. See Transamerica Leaing Ine. v Fota Qceanica B. Amazonia, SA., No. 97. (0S56-CB's, 1997 WL BB4SS4, +2, 198 AMC 254,236 (SD. Ala June 25,1977), Western Bulk Carers (Aus. 1), Py Lid’ v PS a, Lud, 762 F. Supp 1302, 1308, 1991 AMC 2828, 2631 ($D. Ohio 199), 232 See TET, MLC, sypra note at 38-39, 233,_‘See Swift & Co, Pacers. Compania Colombiana Del Caribe, S.A, 339 US, 688, 693, 1950 AMC 1089, 109697 (1950), Ray Casino, 1998 WL 566772, si 4, 1998 AMC a8 3237, 234 See Tere, MLC, sypra note I, at 38-40 1999] MARITIME LAW PROCEDURES 1935 as the credits or effects ofthe defendant in the hands of third parties" Hence, it is used to seize both tangible and intangible assets, including, notably, bank accounts.”* Because the United States has the attachment, sister ship arrestin rem is unnecessary. A sister vessel may be attached as security for the claim in the same way as any other goods or chattels of the defendant, ifit is within the district and the defendant cannot be found there.” For the purposes of determining when a defendant cannot be “found within the district” within the meaning of Supplemental Rule B, a two-pronged test applies, based upon jurisdiction and the service of process." Attachment under Rule B is thus proper: (a) when the defendant lacks “minimum contacts” with the district sufficient to found in personam jurisdiction” or (b) when he is not available for service of process within the district, because he has no office ot authorized agent in the district where or through whom legal process ‘may be served upon him.” The plaintiff bears the burden of proving that the defendant cannot be found within the district under Rule B, and must make reasonable, but not necessarily exhaustive, efforts to Focate the defendant. 235, Seeid 980. 236. Seetd 91939. 237. Seetd at 1047 238 Seed at 9940, see alto Navetoe Inter Americonce ». MIV Vasiia Express, 120 £38 308, 314-15, 1997 AMC 2868, 2858 (15 Cit 1997); Seswind Compania S.A. reset Line, Ine, 20 P24 380,582, 1968 AMC 617, 620 24 Ci. 1963) Boy Casino, 1998 WL. S65772. *S, 1998 AMC at 2238, 1239, The “minim contace”entenon reflects the ease lw flowing fom the US. Supreme Court’ decision in Iternatonal Shoe Co. Washington, 326 US. 310 (1948) ‘Minimam enti may’ arze fom te fru "neal persona jurisdiction” (where the ‘lefendant's general busines contacts wih the disc are bth “eontnocus and systematic”) ‘or form "specie personal anedition” (where thee fs a causal conection Between the ‘lefendan's actives within the crit and the pins ease ofeton). See Helicopters Nacionales de Colombia SA. Hal, 466 U.S. 48, 414 18 (1988), Ocean Chem. Transp, Ine. Coton, 702 So. 2d 1272, 1998 AMC 38, 39 (Fa, Dist CL App. 1997) Vader Rule (642) ofthe Federal Rules Civl Procedure, minimum contacts, in respect of sims arising uc era lw (including federal mira Taw), may also be found inthe ‘efendan's “nationwide” contact withthe United Stats, even whee there are insufficient ‘ona to stely the dve process concems ofthe lng-arm saute of any particular US. Slate See Word Tanker Carers Corp. NUV Ya Mawiaya, 99 P38 717, 72326, 1997 ‘AMC 307, 311-13 (Sth Ci 1996) Pati Employes In. Cav MVT Iver Champion, Cv. A. ‘No. 91-0911, 1995 WL 295293, 5, 1998 AMC 2280, 2286-87 ED. La May Il 1985) "24. See TetLEY, MLC, sypra nae 1,98). The relevant time for deermining if the defendants present in the dsc i the time the compli led. See Heid, tne. ‘Anomina Ravennste i Armenia SPA. 132 Fd 264, 267-68, 1998 AMC 982, 985.87 (ihr 1998) 241. Sor West of Eagland Ship Overs Mat. ns. Assn v. Mellister Bros, 829 F. ‘Supp 122,124, 1993 AMC 2559, 561-63 (ED. Pa 1993)1936 TULA LAW REVIEW (Nol. 73:1895 Because Rule B jurisdiction is in personam, if the defendant appears in the action and the plaintiff's claim is allowed, the judgment is enforceable against all of the defendant's property, and not only ‘against the property seized as in the action in rem.** Ifthe defendant fails to appear, however, the plaintiff's judgment is enforceable only against the value of the property attached.” ‘The attachment may be combined with the action in rem, the advantage of such joinder being that if the value of the ship or other arrested property is insufficient to satisfy the judgment, the balance of the damages awarded may be recovered from the defendant found personally liable on the claim* Joinder of arrest and altachment is also useful ifthe claimant is uncertain whether he has a valid maritime lien to assert in rem, Procedurally, Supplemental Rule B requires the plaintiff to file a detailed complaint, accompanied by an affidavit, ‘The plaintiff must show: (1) that he has an in personam claim against the defendant; (Q)that the defendant cannot be found within the district where the action is commenced; (3) that property belonging to the defendant is present, or soon will be present, in the district; and (4)there is no statutory or general maritime law proscription tothe attachment." An ‘ex parte application for issuance of the attachment must also be filed, ‘owing to the pre-seizure hearing required since 1985. The clerk of the court, on the court’s order, issues the writ of attachment to the Marshal, ‘as well as a summons addressed to the defendant, which the Marshal serves with the writ! A prompt post-seizure hearing is also mandatory under Rule E(4\0. 242, See Hay Casing, 1998 WL. 66072, a *2, 1998 AMC at 232.33, 23, See TENLY, MLC, supra note 1, at 940, For this reson, Rule B jwisiction is sometimes teamed "us in ron” juridicion See Navies InterAmericaes, 120 F34 st 515, 1087 AMC at 2858 Limonium Martine, S.A. Mizushima Marines, S.A, 961 F Supp 600, 608, 1997 AMC 2938, 2944 (SDN. 1997). “HA.” See Sop. Rule CUIXB), spre note 3; Navors, 120 34 at 31418, 1997 AMC 1 2858; ay Casio, 1998 WL 566772, a2, 1998 AMC uf 2233 se also TeTLEY, MLC, Sspra moe lat 43, Where the conditions of atest under Supplemental Rule C are not met, the cous wil sometimes low the aon to proceed sift had oil been instituted ‘with atachment under Role B See Hetmay, 182 Fat 28, 1098 AMC af 987-88, 245. Se Transameria Leasing Inv rota Oceania F. Amazonicy SA, No. 97- (056-08.5, 197 WL BBSS4, at #2, 1998 AMC 254,296 (SD. Ala. Tune 2, 1997), 7A Sts Wir Moons, Moon's Fina. Practice 3 2d, 1996). Dao. See Supp Rule B(D), supra note 3: U.S: easier oF Jusnce, supra note 28, st 104187 1999] MARITIME LAW PROCEDURES 1937 7. Release of the Ship ‘The vessel may be released from arrest or attachment on the filing of sufficient security, under Supplemental Rule E(5). The secutity then replaces the res” and normally precludes re-arrest for the same claim.” In the United States, security may take the form of “special bond” (Rule E(5)(a)), which releases the res from arrest or attachment in the plaintiff's suit. The special bond is in an amount determined by the partes or, failing such agreement, in an amount set by the court, which is sufficient to cover the plaintiff's claim “fairly stated,” together with interest and costs, but not exceeding the lesser of the value of the property or twice the amount of the claim.” Security may also take the form of a “general bond,” which releases the res from arrest or attachment in respect of all actions that ‘may be brought in the district. It must be maintained at double the aggregate amount claimed in actions begun and pending. Finally, security may consist of a “stipulation,” which is usually a P & I club letter of undertaking, or in some cases, a letter of credit or an escrow deposit" In addition, the claimant may be ordered to give countersecutity in respect of counterclaims arising out of the same transaction, where the defendant has given security in the claimant's action, unless the court directs otherwise for “cause shown"? Countersecurity has also been required of the plaintiff where the claim and the defendant's posted security greatly exceeded the amount of the actual loss." If the claim succeeds, the res may be sold in a judicial sale or the judgment may be enforced against the substituted security. The judicial sale terminates all claims existing on the date it occurs, and the ‘vessel is then sold five of all such claims." ‘The proceeds are then distributed according to the U.S. order of ranking.** 247. See TEWAY, MLC, supra nat I at 11. 28. Seid 349. See th Century Fox Film Cor. MV Ship Agencies, Inc, 992 F. Sup, 1429, 1429 (MD. Fla. 1997), Lio de Mer, SA v_ MIV Loretta D, NO. Civ 98-921, 1998 WL 37079, 92, 1998 AMC 1410, 1412. Ni. Ape 3, 1938) 280. See Sup. Rule F(5{b), supra nate. 351. ‘Seoud Role ESke). 252. Soeud Role EC). 253. See Teehem Chem Co, M/T Choye Mary, 416 F Supp. 960, 967-70, 972, 1976 AMC 1954, 1964-63, 1972(D. Md, 1976) 254, Sera6 USC. § 313266) (1997) 285, Seca § 313260) so alo TErLBY, MLC, supra note 1a 872-76,1938 TULANE LAW REVIEW [Vol. 73:1895 8, Wrongful Arrest or Attachment United States courts have not hesitated to grant damages for ‘wrongful arrestor attachment in maritime cases. As in England and Canada, however, damages are only granted where the arrest or attachment is found to have been motivated by bad faith, malice or gross negligence. The analogy to malicious prosecution is frequently drawn. Where the arrest or attachment is merely erroneous, costs may sometimes be awarded, but not damages." U.S. courts may also condemn a party in damages for demanding excessive security." 9. Constitutional Safeguards of Shipowners' Property Rights ‘The Fifth Amendment of the United States Constitution, adopted in 1791, prohibits depriving any person of life, liberty or property without due process of law in federal mattess.” ‘The Fourteenth Amendment applies a similar prohibition in respect of state matters.” As a result of certain United States Supreme Court decisions on civil (nonmaritime) matters, such as_gamishments, rendered in the 1960s and 1970s, the door was opened to constitutional challenges of both maritime attachment and arrest i rem, on grounds of due process, particularly regarding the question ‘whether these maritime enforcement procedures should be required to provide for prior notice and hearing of the defendant shipowners directly affected by them" Various contradictory decisions were rendered by U.S. courts on the issue, and legal academics engaged in ‘a vigorous debate on the matter in the law reviews. Finally, in 1985, Supplemental Rules B and C were amended to provide for the procedural safeguards considered compatible with due process. The new rules provided for judicial authorization prior to 256, See TERLEY, MLC, sypra noe 1, at 1071-76 (ting Frontera Frit Co. v owing 91 £24293, 297, 1937 AMC 1289, 126 (Sth Ci. 1937). 257, See Zak Maine Co. v. Esporte, Nos. 92-080, 92-0870, 1993 WL 323131, at #3, 1993 AMC 1794, 199697 (ED. La. 1992) 256.” See Wertran Mar de Sui, Lid, 1995 AMC 1130, 1136 (D. Alaska 1995). 259, See US. Const. amend. V 260. Seed snend XIV. 261. ‘See geerally Shaffer. Heme, 433 US. 186 (1977 (holding juisiton over putes bse on sautory presence vnative of due proces}; Fuentes v. Sheva, 407 U.S. 67 {1972 qoidng Florida and Pennsylvania teplevin provisos invalid under the fourteenth ‘Amendment; Sniadach ¥-Farly Fin. Corp, 395 US. 337 (1969) (oldira Wisconsin's Prejadgment gamishment of wages procedure violate dve proces) se also TETL2Y MLC mpramate 1, at 982-54 262 See TETiY, MLC supra note 1, at 954-56 mn 83-84, 1999) MARITIME LAW PROCEDURES 1939 aurest or attachment, more detailed complaints, (especially in alfachment cases) and speedy post-seizure hearings.” At the post- scizute hearing, the onus ison the aresting or attaching party to show that he had “probable cause” for arresting or attaching the vessel. Supplemental Rule C(4) also requires public notice of the action in rem and the arrest, in a newspaper, if the property has not been released within ten days after execution of process: Further safeguards were enacted in the Commercial Instruments, and Maritime Liens Act in 1988, requiring “actual notice” of a civil action in rem that has been brought to enforce a preferred mortgage lien or a maritime lien. Notice must be given, in the manner directed by the federal district court, to: (1) the master or individual in charge of the vessel; (2) any person who recorded a notice of claim of an ‘undischarged len on the vessel under 46 U.S.C. § 31343(a) or (d); and GB) amortgagee of an undischarged mortgage file or recorded under 46 USC. § 31321 10. Conclusion—Attachment and Arrest—America In addition to recognizing a larger number of maritime liens than any other nation, U.S. maritime law is uniquely rich in affording admiralty claimants both the attachment and arrest in rem as ‘mechanisms for asserting their claims and obtaining pre-judgment 263. Soe Supp. Rugs Bi), CC), EC4XO, supra note 3. Pre-seizure and post seizure notices ae now wed even i respect of the seizure of vel st municipal docks. See Higgins Por of Newport (21 F121, 1282-63, 1998 AMC 573, 575 Oh Cit. 1997). 264. See Sopp. Rule ELOXP), supra note 3.” The consituonalty of the amet and sitachment procedures inthe maine context was upheld im decisions such as Polar ‘Shinning Let Oriental Shopng Corp, 680 F.24 627 (th Ci 1982) (Rae B maritime tachment and gamishment procalues), Amar Cop». SS Alexandros I, 664 F2d 1338 {Sih Ci 1981) Rule C wes procedure) Aut see Alveska Pipeline Serv. Co. v. Bay Ridge, S00 F Supp. 1115, 1981 ANC 1086 (D. Alaska 1981) (Rule C arrest procedure). With the 1085 changes to Rules B,C, sd ECAP) to provie fora prompt pestsetaure hearing atthe fequest of any person earings interest i the property sed, the sue bas been resolved. Se 208 Century Fo Film Carp. MUV Ship Agencies, Ine, 992 F.Supp. 1423, 1427, 1998 ‘AMC 2514, 2518 (MLD. Fa. 1997}, Newport News Shipbuilding & Dry Dock Co. ¥. SS. Trdependence, #72 F Sopp. 262,268, 1998 AMC I644, 164648 D. Va 1998), "365. "See generally Tertay, MLC, supra note i st 48-18, 98658 266. Soe Commercial Instruments & Martine Liens Act, 45 USC. § 31325(9XINA), (®).(©) 1987), Such nace te not quired if the person eat to tas not been fous i the Unted Stats afer “scuch stisfatory to the court™ ld § 31325()2). Fale t notify ‘oes mot alec the jarisscton ofthe out to ear the acon in rem, ut the unotied pasty ‘nay sue flor damages in the amount of his intestine veel ermnated by te action See Hd §31325(H\3) sao TETLEY, MLL, supra nse 1, 2986-47,1940 TULANE LAW REVIEW [Vol. 73:1895 security.” The United States has also led the world in developing and implementing effective constitutional protections of the private property rights of shipowners with respect to both attachment and arrest. In that domain in particular, U.S. maritime law can well serve as a model for other nations. Effectively, because of the broad interpretation of the Commercial Instruments and Maritime Liens Act and, in particular, of “necessaries,” the claims permitting ship arrest and attachment in the United States are contained in an “open list.” V. Tap Saisie Consenvaroms—FRANCE A, Introduction Civilian countries such as France never experienced the conflict between admiralty and common-law courts that plagued the English judiciary for centuries. Pre-judgment seizure of any property of a debtor therefore was never “lost,” as it supposedly was in England. Nor was there ever in civilian jurisdictions a separate in rem proceeding, with the ship a notional defendant. Rather, civilian countries to this day have but a single action, the action in personam, which may, however, be combined with a saisie conservatoire, or conservatory attachment, in order to give the claimant security for his claim before judgment. ‘In addition, France at least appears to have been untroubled by the risk of maritime attachment without prior notice or hearing infringing on “due process” rights of defendants."* B. Attachment of Ships and Other Assets Ship attachment in France, as provided by Law No. 67-5 of January 3, 1967.2” is governed by special regulatory provisions. The procedures are found in Decree No. 67-967 of October 27, 1967,” as amended by Decree No. 71-161 of February 24, 1971." Procedures regulating the attachment of cargo,” freight,” and other 267. See generally Keith .Letoumes, Practical Guide to Adina Supplemental ales A Through F (th Special Emphasts onthe Souther Disc of Tras, 22 TUL. MAR 1CA-17 (explaining atest and tachreat in U.S. marine low) 268. See THEY, MLC, supra ot 1, a 962-3 269. Law No. 675 of Fan 3, 1967, 10, fan 4, 1567, a 106, 270. See Decree No 67-967 of Oct. 27/197, 50, Nov. 4, 1967p. 10836, 271. See Decree No. 71-161 of Feb. 24, 1971, 10, Ma. 2, 1971 p. 2064, Relevant provisions of Decee No. 67-967, as amended by Deere No. Ti-6l, sr reproduced in Tentsy, MLC, sypranote |, at 149-46. 1272. See g, Cour de Casson, Cast. Com, Oc, 1993, 1993 DIM, 722, note R Le Brun; CA. Rove, Dex 23, 1992, 1993 DMEF, 648, note ¥. Tassel Tee, MLC, ‘prone 1, 3983 8, 1999) MARITIME LAW PROCEDURES 1941 assets, such as bank accounts and insurance proceeds,” on the other hand, are subject to the general law of France on civil procedures of exccition, found in Law No. 91-650 of July 9, 1991.” completed by Decree No. 92-755 of July 31, 19922 In 1998, the Cour de Cassation, reversing some previous case law of various courts of appeal, held that, because bunkers were a “component ofthe ship” (“élément du navire”), their attachment, like that of the vessel itself, twas to be govemed by maritime law (specifically, the 1967 Decree), rather than by the general legislation of 1991/1992 on execution on movable property.” CC. Attachment of Ships—Two Regimes ‘There are two regimes of ship attachment in France: the “intemational” regime, based on the Arrest Convention 1952 to ‘which France is party," and the “domestic,” or “residuary,” regime governed by the 1967/1971 Decrees. ‘The international regime governs the attachment of seagoing ships”” flying the flag of a state that is party to the Arrest Convention 1952, as required by article 8(1) of the Convention. ‘The domestic regime applies to. the attachment of French vessels in French ports by French residents?" Under article 8(2) of the Arrest Convention 1952, where the ship attached is not a French vessel and does not fly the flag of any other state party to the Convention, it may be attached for a maritime claim recognized under article 1(1) of the Convention or for any claim permiiting atlachment under the law of the contracting state concerned EE 213. See Cour de Casein, Cas. Com, an 13,1998, 1998 D MLR 823 27K, Se, eg, CA. Pai Oc. 21, 1994 195 DME. 833, note P Bonasses: Tih de commerce Pais Sept 13, 1994, 1995 DIM F. $48, noe ¥. Tassel, commentaire P Bonasses, 1998 D MEF, 119-130; TetLey, MLC, supra note 1a 968 275, See Law No, 91-680 offal, 1991, 1.0, July 14 1991p. 9228. 276. See Desre No. 92-755 of uly 31,1992, 0, Aug. 5, 1992, . 10520. 277 See Cour de Cassation, Cas. Com, Jan 13,1998, 1998 DMF. 823; ee ato M. Iendes La problematigue de a sate der sues” La restouraton de Tawi du Dot ‘maritime, 198 DME. 171. As a rest of his decsion, bunker tachment in France must, be authored bythe yuesient ofthe tinal de commerce ade than by a regular ev sides "78, France rife the Arrest Convention 1952, supra note 8, on May 2, 1957 and published iby Decree No. SE-4 of nary 4, 1958. "79, "The erm areal” is wed ara tanttion ofthe French em sos nthe Arrest Convention 1982 supra note, nding tht he Consenon applies to both ares ia rein common iw juietions and conservatory attachment in evblaw jurdictons. Moreover, the French tile of the Convention ix "Convention Inernaionle Pour Tuneaton de (Certanes Ripe su la Salse Conservatoire des hairs de Mer” 360, Se Aueat Convention 1952, ypra nate 8, at. 8), see aso MARTINE RESON GGovstio, Drort wanrIMe 288 2d ed. 1993.1942, TULANE LAW REVIEW (Nol. 73:1895, (France, in this case).™" France's domestic regime may be applied in this case, because article 83) permits a state party like France to exclude from the benefits of the Convention any noncon'racting state or any person who, at the time of the arrest or attachment, has no hhabitual residence or principal place of business in a contracting state? D. Claims Permitting Maritime Attachment Ships under the international regime may be attached in France only for “maritime claims” listed in article 1(1) of the Arrest Convention 1952, that “closed list” being interpreted restrictively.”* ‘The judge merely verifies thatthe claim alleged falls into one of the ‘categories on the list.”* ‘Under France's residuary regime, ships may be attached for any claim whatsoever, whether maritime or not, provided that the claim ‘appears “founded in principle.” The judge must, however, be satisfied thatthe claim is “certain and serious” before authorizing the vessel's attachment. DSL. Ser eg, CA Ain, May 2, 1997, 1998 DALE 652, oes PDeebeoque & C Bourne "TED, See Rénono-GoUlLoun, spre note 280, 26, 24; Rové Ronan & Ehatawer DoPowance, Dror waft 78 (12 ef 199), Tenet, MLC. spa tut at 96465, rons Vil AD, Dor aRTBu 9651997). TEN. See Réswono- COU 00D, spre pte 20, 425%, ROOMERE fe DuPosTANCE, gra note 282, $17R Tels, MLCr pra ateI, 965; VALAR, supe nae 282 S801. "Seeeg, CA: Ain, Moy 22,1997 1098 DALE, 692, notes P.Deebecve &C. Booraye A Boot, Se 21986, 197 DALE 38, nate Giles Oa, coment Bona, DAIF Mors Sev Ne 2,199, No, 62 thas be held th atacment nde the Convention's possible, even wher the em is "ime ca aly nar. See Cour de {San Cas: Com Fe. 1998, 998 DAME 26 note. Boosie BH See eg CA Ale, Ds 61995, 1997 DAME S91 one Tas, commenti »Bonasicn DMF ies Sei No 2 958, No 63 Cour de Cassin, Cas. Com, Feb. {998.1998 DM 255. See alo RODERs & DuPoEvcs, spre ot 282, 4178 6, ‘Teen, ML, pra note I, t 965-6. Some Freeh jules, howeve, set et on ching wine te hi io fst a marie cies, CAA, Nov. 1, Tose, 1997 DMF 6, oe Tae conmeniteP Bonuses, YEE See Deace No. 61-967 of Oct 27, 1967, 10, Now 4, 1987, p. 10836 as amended by Dectce No. 71-161, eb 24 1971, 0, at 2197, p 2066 art 29; see aso anon Gouna, ra nle 280, 289, Roiene & DUPOWUNICE, supra hte 282, $1150 198. Ths "Teunde in pnp eseon has een ssinted to the coneep ofthe MJood publ casein rglsh fn See ¥. Teel, Note, CA. Rout, 1996 DMAP. 377, 340, scons with he bane principe of law th aloft b's propery the pleige otis cers. Soe Cobe ci [CC] a 2092 Fr), VALARS sir oe 282, Sor a 1286, See, eg., Cour de Cassation, Cass, Com., Mar. 19, 1996, DMF 1996, 503, $04; CA. An, Sep i 996 1997 DALE. 35, nte ©. Gtr comment P Bonasies, DMF Flo See No-2, 1098 no. 64 Reno GoLt.ouD, pre note 280, § 28. 1999] ‘MARITIME LAW PROCEDURES 1943 In consequence, neither regime restricts attachment to claims giving rise to a maritime lien (a “privilége maritime"), France nevertheless recognizes maritime liens on ships for: (1) law costs and costs of judicial sale; (2) tonnage and port charges, pilotage, and costs of preservation of the vessel since its entry into the last port (the port where the altachment occurs); (3) claims resulting fiom the contract of employment of the master, crew, and other persons engaged for on- board work; (4) remuneration for salvage and assistance and general average contributions; (5) damages for collisions and other accidents, (of navigation, damages to port installations or waterways, damages for bodily injury to passengers and crew and compensation for loss of, or damage to cargo or baggage; (6) claims arising from contracts concluded or operations carried out by the master away from the ship's hhome port, under his legal powers, forthe real needs of preservation of the ship or the continuation of the voyage (including both what are deemed “master’s disbursements” and “necessaries” in common-law jurisdictions)” Most of these maritime lien claims, although differently worded in some cases, are included, as “maritime claims” under article 1(1) of the Arrest Convention 1952." They would therefore permit attachment under either regime in France. The Convention is not to be construed, however, as creating maritime liens not recognized under the law of the court seized of the case or under the Maritime Liens and Mortgages Convention 1926.” E, Attachment of Ships and Sister Ships ‘The ship concemed by the claim may be attached under both the internal regime find article 3(1) and (4) of the Convention. Both regimes also permit sister ship attachment where the owner is liable ‘on the claim.°° Where a charterer is liable on the claim, article 3(4) of the Convention permits the attachment of either the “offending ship” or another ship owned by the charterer. Only one ship may be seized." Under the domestic regime, there is authority for the view 287. Sve Law No. 67-5 of Jan 3, 1967, 10, Jan, 4, 1967, p. 106, at. 31; Ter, MLC. sypra note 1, at 147988 (identifying relevant provisions of Law No. 67-5); see alo 31 90205 (anking maritime Lenn France) 268. Ste Ares Consenton 1982, pra note 8a. (1). 289. See, eg, CA Montellie uly 3, 1986, 1997 DALE 31, note A. Amaud, ‘commentaire P. Bonassies, 1997 DIME Hos Sie No’ 2, 1998, No. 67; CA. Ais, May 15, 1996, 197 DMLF 898, ote ¥. Tas 390._See Arest Convention 1952, supra note &, ar. 31}; Tevury, MLC, supra note 1, a 66 n 131; Reon-Goen cov, spr nate 280, 291-292, 9300}, ViatARD, spa note 22, $37, 291. See Arest Convention 1952, sypra note 8 a. (1),(2.1944 TULANE LAW REVIEW —_[Vol. 73:1895 that only a ship owned by the charterer may be seized, although a privilege maritime (maritime lien) will enable a chartered ship to be attached French courts have applied the théorie de 'apparence (theory of appearance) to “lift the corporate veil,” so as to determine ‘true ownership, where a “community of interests” has been found between the legal entities concemed, where they lack genuine operational autonomy and particularly where the reality of related shipowners and ships has been concealed behind the mask of “one-ship companies."”* ‘The Cour de Cassation, France's Supreme Court, however, has more recently taken a more conservative position on the application of this ‘theory, sessing the importance of respecting the integrity of corporate personality." Increasingly, the corporate veil will only be lifted or pierced where there is clear evidence that the corporate facade is being manipulated as part of a sham in order to perpetrate a fraud on creditors.”* E_ Attachment Procedure and Jurisdiction Under both the domestic and the intemational regimes in France, the legal procedures fur te altachment of ships arc those of articles 29 and 30 of Dectee No. 67-967 as amended by Decree No. 71-161" Application for the saisie conservatoire is made by motion to the president of the Tribunal de commerce or, if he is unavailable, to a judge of the Cour d'instance (a lower court). The order of seizure is served on the debtor by a bailiff, generally in the 292. See TENAY, MLC, spa ot I, 2196667 295. Seed at 366 m3, 16, ee as REMEND-GoUsL LOUD, pra note 280, 4 292; ‘Vistar, spre note 282,99 371, 37; Anoie Vala, Las Soetéés Beran dpparence ov Tronsperonce?, 503 DME, 179 (1991), JearSerge Roar, La sisie coterie des navies apparets, 1984 DMF.239 94” Cour de Castion, Case, Com, 1996 DMLF, Mar. 19,1996, 1996 D.MLF 503, commeniate A. Vila Peronnalé Morale dex Soils Diarmement et Apparentment Sus dee Navires Seti, 1996 DME. 467; P Bonasses, DME lots Série No.1 1997, no St Cour de Casation, Case Com, Jon, 21, 1997, 1997 DME 612, note A, Vil, omnentaie P. Bonastes, DMF Hors Sere No.2 198, No. 65; CAA. Ait May 22, 1997, 1998 DME 692, notes, P Deebeeque & C. Bourne. 235. See, ee. CA. Rees, Jan 15, 1997, 1997 DME. $84, note 1. Corbis, commentaire Bonassies, DMF Hors Stie NO. 2, 1998, No. 65 396. French domes law govern aches procedae under the Arrest Convention 1982, because ance 6 seand peraraph of the Convention makes the ries of procedare {elaing fo the arest of ship, the bing of dial authority to aces and ll mates of [procedure sujet tothe law ofthe conracting sate where he aes was me rapid fo. Fora comprehensive arte on maritime attachmen procedures in France, ee Helene Clit ‘& Gulleame Praja La Procure de sate conservator de navies nie dot comma et Figlor peviaes, 1098 DME. 98, 1999) MARITIME LAW PROCEDURES 1945 presence of the master of the vessel. The bailiff appoints a guardian?” The ship may be attached even where it is preparing to set sail" Attachment prohibits the ship from leaving port,”” but does not otherwise affect the rights of the owner.” ‘AS a result of a 1995 decision of the Cour de Cassation,” itis now uncertain whether attachment in France in itself suffices to found the intemational jurisdiction of the French court to adjudicate the claim. ‘The decision reversed what had been thought of as a settled rule supporting the intemational jurisdiction of the forum arresti, The Cour de Cassation now requires some connecting factor recognized by French rules of private international law, apart from the place of seiaure, in order to confer jurisdiction over the merits of the claim.” France, in common with other countries, does not permit the attachment of ships belonging to the French Government, because French law absolutely prohibits all measures of execution and all forms of seizure against any property of “public persons.”** Similarly, France subscribes to the principle of restrictive foreign sovereign immunity enshrined in the Immunity of State-Owned Ships Convention 1926 and its Additional Protocol 1934, under which immunity fom seizure, arrest and detention of foreign state-owned and state-operated vessels is revognized, but only in respect of suc vessels engaged exclusively in governmental, noncommercial service 297, Soe ViaLan, spr note 23,4 374, 298. Rewon-GotiLt0u,sypra note 280, $297 bis; Roptine & DuPoxrnace, pra note 82, 9176, 180; TELEY, MLC, supra pote | a 969; VIALARD,sypra note 283,4395, 399.” See Decree Np. 67-967 of Ost 27, 1967, 102, Now 4, 1967, p. 10836. In [practice he port sevice on Being notified ofthe tice fuss ouwards clearance 10 the vse S00. See i se also RIMOND-Goun LOUD, pra note 280, 4 27 bis; RooiERs & DuPowravice, supa note 28, § 177; TERY, MCL pra nae 1, 3t 96; VIALARD, supra rote 28,1575. 301.) See Cour de Catation, Cass Com, Jan. 17, 1995, 1996 DMF. 815, commentaires Retmond-Couillond, Forum Arrest” Le Jusant, DMF 1996, 787 & ‘Bonasies DMF 1999, Hos Série No 1, 1997, No, 36; see also THXLEY, MLC: supra note 1068 302 But see Cour de Castor, Cass com, Feb. 11, 1997, 1997 DME. 616, note P [Bonatsies & comments, DMF Hors Sésie No.2, 1998, No. 72 (opholing he jrsetion fof the French forum ares in rspet of matrs relating, nt to the mens ofthe dispute tel but rater tothe etecllon of feign judgment tha had been recognized and renee exectory in France) 1303. See TEREY, MLC, spre note 1 at 1205-10; se also RéowD-Goum.Lo0D, supra ote 280, 9616-7; Rooted DUPCRTA, supra ote 20, MY 248-253, 462. “304. The Imeratonal Convention fr the Uniction of Cetin Rules concerning the Immunity of State owned Ship, alopied at Brusols, Apr 10,1926, and the Additonal Protocol, adopted at Bruel on May 2, 1936, France rated both insruments only 27, 1551946 TULANE LAW REVIEW —_[Vol. 73:1895 ‘when the cause of action arses.” Because many vessels today that in fact belong to states are formally owned and operated by state agencies for stale corporations, French courts, applying the “théorie de Témanation” (\heory of emanation), have at times denied immunity ‘where foreign govemments, operating through such allegedly “independent” bodies, have attempted to avoid their debis"* As with the théorie de l'apparence in sister ship attachment, however, a more conservative approach to the “émanation” doctrine is now being taken by French judges and legal scholars.” G. Release from Attachment and Voyage Authorization French law provides two modes of lifting the saisie conservatoire. The shipowner may seek release of the ship, by motion to the Tribunal de grande instance. If release is granted, the seizing creditor loses all preference for his claim and will normally be condemned to pay damages occasioned by the seizure, notably, the costs of the release." Because release procedures in France tend to be protracted, however, shipowners often prefer the second option for lifting the saisie, which is a motion to the president of the Tribunal de grande instance seeking an order authorizing the vessel to leave the port of attachment for one or more determined voyages, in retum for the giving of adequate security by the shipowner.® The president must set a deadline for the vessel’s return to the port of seizure. Should the deadline be missed, the creditors are entitled to the security. The security generally takes the form of a letter of ‘undertaking from the shipowner’s P & I club, although a bank ‘guarantee may also be given. The security is regarded as taking the place of the vessel."° 305, lnmmunity of Snieowned Ships Convention 1926 art. 3; ser also Tents, MLC, prema I at 970-7 306. See Tertey, MLC, pra ate Lat 166. 307. See, eg, CA. Rouen, 1985, 1986 DME. 345; see also Rimond-Couiloud, L'Emanaiton iortne’ ou Commit Faire Cir Soran dela Persona orale d'un ‘rmement da 1986 DME 333; Dail Gayo, muni des Novires dt: Les Taéses tn Presence 1983 DME. 40S: M. Remond-Goulloud,L'nanaion Moritne: Pour Sortie (de ka Clandestnid 1992 DMF. 451; ViataRb, supra note 283, 4 373; Terey, MLC, Sopra note I t 1166 1.25; eer also Cout de Casson Cass. Com, Jan. 4, 1995, Bulletin {no 6 Cour de Casson, Cavs. Com, Ost. 1, 1997, note P Delebecqus. B08. “Teruty, MLC, aypra note 1 af 969-70 309. _Ste Deiree No, 67.967 of OC. 27,1967, 10, Nov. 4 1967, p. 10836; se also Réwon-GoutLLoub, supa note 280, 400; Robins & DUPOSTAVCR, pra nate 282, 1773: ViatatD pra note 283,437 310. See Decree No. 67.967, TERY, MLL, sara note 1, 3970 1999) MARITIME LAW PROCEDURES 1947 As in other countries, judicial sale of the ship remains the final mode of exercise of maritime enforcement jurisdiction. It is govemed in France by provisions of the Decree of 1967 on “saisie-exécution”” (attachment in execution ofthe final judgment)."" ‘H. Wrongfil Attachment Article 6, first paragraph, of the Arrest Convention 1952 leaves to national law of the contracting state where the arrest was made or applied for the question of liability for damages for arrest of ships. There is no specific maritime legislation on this matter in France." Nevertheless, jurisprudence shows that at least some French courts are prepared io grant damages for the wrongful seizure of ships, where it appears to have been motivated by malice or gross negligence.” Where the attachment is merely unfounded in law (in other words, erroneous, as opposed to malicious), the seizing creditor has been held liable to compensate the shipowner for the expenses of maintaining the vessel during its period of attachment." I. Protection of Private Property Rights of Shipowners The Declaration of the Rights of Man and of the Citizen, 1789, at article 2, declares the right to liberty, property, security and resistance {0 oppression. Article 17 declares that property is an inviolable and sacred right, of which no one may be deprived except ‘when public necessity, lawfully established, so requires, and on condition of a “just and prior indemnity.” These lofty principles ‘were invoked successfully to challenge the attempted nationalization of French banks in {981° They have yet to be raised to contest the constitutional validity of a ship attachment in France, however. Nevertheless, the possibility of such a challenge cannot be discounted. J. Conclusion—France ‘Although France has no wrt in rem, its matitime enforcement procedures are clear and unified because France never permitted the BI. See Decree No. 67-967, ans 31-58, 312, See ViaLano,syranoie 25,9378 5313, ‘See RinsouD-GouLouD, supra note 280, at 300, TENLEY, MLC, spre nate 1, a1 1077-78, 314.” See Cour de Casson, Cass. Com, Mar 3, 198, 1998 D.MLF 699, note R Rezentil SIS, SeeTETLEY, MLC, sypra note 1, at 972-73,1948 TULANE LAW REVIEW [Vol. 73:1895 attachment and the action in rem to separate, ‘The historic saisie conservaioire, inherited from the general civilian lex maritima of Continental Europe, continues to flourish in civilian jurisdictions, and in France has been adapted to the demands of intemational shipping in the twentieth century. It provides a logical and effective procedural tool for providing modem maritime creditors with prejudgment security against the main asset on which they rely, the ship. It remains to be hoped that France, with its noble tradition of concem for fundamental rights and freedoms, will further refine its maritime legislation, as the United States has done, so as to provide additional, consttutionally-grounded protection to shipowners’ rights of property in their vessels. It is noteworthy that, as a party to the Arrest Convention 1952, France operates under a‘closed list” of maritime claims. VL. THE Maeva INJUNCTION A. Introduction The reputed loss of the Admiralty attachment in England has bbeen partially mitigated by the invention of the “Mareve injunction.” Considered by its creator, Lord Denning, as “the greatest piece of judicial law reform in my time,” the Mareva injunction draws its fame from the second decision granting the remedy that Lord Denning rendered while Master of the Rolls in the English Court of Appeal, Mareva Compania Naviera S.A. ¥. International Bulkcarriers S.A" ‘The purpose of the Mareva injunction is to prohibit the defendant, before or during a suit, from removing assets (real or personal, movable or immovable) fom the jurisdiction or from dealing with them?"* where it appears to the court that without such an order the plaintiff's recovery on his claim will be jeopardized?” Explicit authority for the issuance of Mareva injunctions is now conferred on the High Court of Justice in the United Kingdom by section 373) of the Supreme Court Act, 1981, which provides: 316, 1d (tation omit), Note, however, that credit forthe Mareva injunction should also goto Geofiey Brice, QC, and MN. Howard, who prepare, intoduced and plod the etn forthe injunction. S17. [1975] 2 Lloyds Rep. 509, [1980] | AER. 213 Nove (CA). The fst Maeva injuneton (sas ae clle) was sul in Nippon Tasen Kaisha w Kargoors, 1973] 2 Lioy's Rep. 137 (Lord Deaing MLD, Sk "See AS DIS Svendborg & Another Estonian Shipping Co. v Wans,(1996] 2 Lloyd ep. 889, 875.76 319. See THILEY, MLC, supra not at 983-84, 98899, 90-91 1999] MARITIME LAW PROCEDURES 1949 ‘The power of the High Court under subsection (1) to grant an imerlocutory injunction restraining a party to any proceedings from removing from the jurisdiction of the High Cour, or otherwise dealing ‘with, assets located within tht jurisdiction shall be exercisable in cases where that party is, as well a5 in cases where he is not, domiciled, resident or present within that jurisdiction.” In 1994, a “Practice Direction” was issued governing various details of Mareva practice in the United Kingdom.” B. Conditions for the Issuance of a Mareva Injunction ‘The main conditions for the granting of a Mareva injunetion were determined very early on in some of the first Mareva decisions in England, most of which were maritime law judgments." In Third Chandris Shipping Corp. v Unimarine S.A., Lord Denning MR. set out five guidelines to ensure that the Mareva would not be granted indiscriminately.” The guidelines related to the contents of the affidavit of the applicant for the injunction. They require: (1) full and frank disclosure of all maiters known to the applicant that are material for the judge to know; (2) disclosure of particulars of the applicant's claim, including its grounds and amount, and a tir statement of the points made against it by the defendant; (3) the applicant’s grounds for believing that the defendants have assets in the jurisdiction; (4) the applicant's grounds for believing that there is a risk of the assets being removed before the judgment or arbitral award is satisfied; (5) the giving by the applicani of an undertaking in damages to indemnify the defendant for his losses should the claim {ail or the injunction prove to be unjustified A sixth condition or guideline emerges from London’s central position as a place for foreigners to litigate or arbitrate disputes efficiently before judges of unquestioned leaming and impartiality. As described in Ninemia Maritime Corp. v. Trave Schiffahrisgesellschafi & Co. (The Niedersachsen),”* the plaintiff must show some evidence of a 320. ‘The Supreme Court Ae, 1981, ch. $4,§ 3703) (Eng). 321, See The Practice Dreton of ly 28,194, ropredaced in (1994) 4 All ER 2 Note tha anew standard form of Mareva injunction was issued by the High Court in its Praise Direction of October 28,1996. Sae[1996}1 WLR. 1882 (1997) 322. See, Thtd Chandi Shipping Corp. v.Unimarine S.A. (The Gene) 1979] 2 loys Rep. 184, 189; The Assis, {1979]| Loyd Rep. 331, 333-34(CA }, The Siskina, {1978} 1 Loyss Rep 1,4-7 HLL 1997, Rasu Martina S.A v Pertamina,[1977]2 Lloyd's Rep. 397, 802.08 (1977), 323!" [1979}2 Lot's Rep a 184 324. Soe TILsY, MLC, agora not 1, 8 97-88 325, [1983] 2 Lloya's Rep 600, 606071950 TULANE LAW REVIEW (Vol. 73:1895 serious risk, not merel that the assets in the jurisdiction will be removed of dissipated, ‘nut that, without the injunction, there will be fno means in of oulsive the jurisdiction avaiable 10 enforce the judgment when rendere .* ; ‘The basic criteria woverning the grant of Mareva injunctions in the United Kingdom toc/ay require the plaintiff to show: (1) a cause of action against the defi-dant in the jurisdiction at the time of the application?” (2) a “good arguable case,” (3) thatthe defendant has assets within the jurisdiction (tangible, nontangible, real or personal, including, inter alia, ships, cargoes, bunkers, proceeds of sale, bank accounts, etc.) (4) thatthe defendant is likely to frustrate judgment by removing his assets from the jurisdiction or dissipating them,” and (6) the balance of convenience favouring issue of the injunction. C. “Worldwide” Mateva Injunctions ‘The Mareva injunction was applied originally to prevent both British and foreign defendants who had assets within England or Wales from transferring or dissipating those assets. Since 1988, however, English courts have begun to issue so-called “worldwide’ ‘Mareva injunctions, in vider (o resttain defendants subject to English jurisdiction from dealing with or dissipating their assets situated Tin be ay MEE pt a 8; he AS Sis wean eT et gwen ei in ei ee a a ee Ne toe aes Nae Rv, Sree Siac tee Aa or es ty Hot Ro he Sh a ie par Neopet ea een abet ae bepltee hern Leelee coer gees 38 ‘See The Niedersachsen, (1983) 2 Lloyd's Rep. 600, 605 (holding that a “good ona me ec (0) gt et Ca Soya hake Seay Sinners Serene rm a Th ae ee tert {i Denon Ce eee en a Sane, Bega See See eT OT ap tbat «Yh vot ati ay tee ass eee Ta am MR aT Gia ae nn Sat Ce ass 1999] MARITIME LAW PROCEDURES 1951 outside of England and Wales." An order pursuant to a Mareva junction may also be issued requiring that assets outside the jurisdiction be transferred to a jurisdiction where the Mareva remedy will be recognized.” Apart from the various matters that must be proven in Mareva injunction applications generally, worldwide ‘Marevas also require the applicant to satisfy the court that the party enjoined lacks sufficient assets within the jurisdiction to satisfy the claim and that the circumstances ofthe case “ery out” for the Mareva order. The issuance of worldwide Marevas continues to cause consternation among many jurists, to whom the exira-teritorial impact of such injunctive relief suggests overreaching by UK. courts, particularly where the assets in question and those in possession of them (for example, foreign banks) are located far from the British Isles. D._ Mateva injunction Procedures—United Kingdom Procedures relating 10 Mareva injunctions in the United Kingdom are now largely codified in the Practice Direction 1994."* Mareva procedures pay significantly more heed to the protection of the property rights of the party to be enjoined than do the procedures applicable to the issuance of the writ in rem, 332. See, eg, Derby & Co. v. Weldon (Nos. 3 & 4), (1989) 2 WLR. 412 (CA), Derby & Cov. Welion (No.1), [1989]2 WLR. 276 (CA: Republic of Halt. Duval, 1989] 2 WLR, 261 (CAA); abana Int Co. SA. v- Basan, (1985) 2 Lloyd's Rep. 435 (CA); Terie, MLC, pra noe 1, € 92. For amore recent exemple ina mertime cee, See Stenberg. Wars, 1996] Lloyds Rep 559,575 333, Se Deby & Co, Liv Wekdon (No.6), 1990] | WLR. 1139(CA) 334, See TETLEY, MLC. sypra note 121992 335, ‘See, eg, id. at 992 m280, David Capper, The Trans ursdtional Efce of Mareva injunctions, 18 Civ. Just. Q. 211 (1996); David Capper, Worldwide Mareva Injmetions, $4 Mod. L. Rev. 329 (1991); David Caper, The Word wide Mareva Marches (On [1991] Liowo's Man. & Cont LQ. 26; Robert Crawford, The Exta-Teitotal fect of ‘Mareva Injunctions —The Slgping Giant Farland, 18 AUST. BUS, L. REV. 28 (1990), Petr Devonshire, The Implications of Thin! Panis Holding Ascot Sujet to a Marevs ‘junction, [1996 L1o¥o's Maw. & CoM. L-Q. 268; Pal D.Fredan, Worldwide Marea Iijuncins—Assunption of Jurdicton, 14a NeW L1. 932 (1994), Steven Gee, Mercedes ‘and Mares, 139 Sou. 1. 10762) aA (1998), Richard Harison, Conroling the Marera, 142 New Lj. ISH1 (1992), Par Kaye, Eraeratrial Mareva Orders and the Relevance of Enyorcebiy, 9 Cr. ust. Q.12 (1990, Ali Malek & Caroline Lewis, Worldwide Matera Injunctions: The Psion of International Banks, {1990} Lipvo's Man. & Com. LQ. 88, Campbell McLachlan, Trononaional dpplcanons of MarevaIyurctions and Anton Plt Orders, 36 her & Cox LQ. 669 (1987), Andrew Roger, The Exra Teoria Reach of the Maeva Iajurcion, 1991] Ltoyo's Max & Cov LQ. 231. 1336, Se Practice Diecion 1994, sya note 321952 TULANE LAW REVIEW [Vol. 73:1895 ‘A Mareva injunction may issue before or after the start of the Iria, Where granted before trial, the injunction is customarily issued after the wrt, although it may be issued even before the wrt is taken out, provided thatthe applicant undertakes to issue the wrt “forthwith” or “as soon as practicable."”” A Mareva injunction may also be sought by the defendant to the suit, in support of a countesclaim.”™ ‘The applicant typically seeks the injunction at an ex parte hearing before a judge in chambers, after submitting to the judge's clerk the ‘writ (where it is already out), the affidavit setting forth the relevant facts and reasons for the application, and a draft minute of the order sought" The applicant must also give a “cross-urdertaking in damages" to indemnify the defendant for losses resulting to him should the claim be unsuccessful, as well as to compensate third parties for any expenses that they may reasonably incur :n complying, ‘with the order or losses thatthe order may cause them.” ‘The Mareva injunction takes effect as soon as it is granted, but the order must be served on the defendant as well as upon third parties contemplated by its provisions.” The Mareva may also be combined with one or more “ancillary orders.” In particular, it may be combined with an action in rem? BBP. ld Amex, Se 12), Armen 3, Seed 12). 338, Incoch cas, however ihe coma mor be seve ther immediately or within the ine allowed bythe usge See Fah Bros v AP Maller (Copenhagen) Li Molly, 19541 Lys Rep. 103,10 (993). Sib. Puagagh AC) of he Price Diteton 1994 pra no 321, rests he application fo be Toogd wit he jue at lot two hous before the hexng"[w)pee Faceable™ incase of get gent however, te aplication maybe made by tepion, en ifthe documents ented efrcand See Allen. amo HoKinge Lil, {ibnoy Wa12520CA 197) 340. Paragraph A) ofthe Practice Dien 1998, supra noe 321, provides ih he aplcamt should be rut, sna ppropste css, 10 suppor. eco uderaking in ‘Eropesy a psmen cour or yan sree company bond. Alenatvely the ge tru oreo yn by way of sich secur fo the apple’ sali whe the Ltr Mould st an fice of he cour Soe id Annex 2s Sched. 1), Ate 3, Sched. 16) regu cose andeakng epet of hd pte) Te Sel Annexes 23. Nose tthe Defendant." (I), and “Et ofthis Orde” ‘gy. See ad Armee 2, Sched 1 1S) & Ammer, Seed. 12), 16). se lo ale Shp Ca Tanti Shipping Ld [1993] | ny Rep 673 (invoking as ne reason forays Mace ede the fine to swe a woriede Mateva oder ot frig bak Sires by he junon wa ange reson moked bythe cou aryng te ode) Tray, MLCy npr mot 190, 1088 i Aveta onde could iste, for example, ners fr discovery_or imeroesorin, odes fo the cose cxanation othe defeat om hi dav declaring nme oes fore investganon othe very fatto our-gye rece {rv the pss colic dr preveting the Stent from levine uae or ‘Koon Pier anders. Se pencray Tem ey MLC, sipramte at 991 Se also Serdar, "Wana T9901 2 Lloyd's Rep. $59, 368-74, Gronaime Sipping Co. ¥ Tamar 1999] MARITIME LAW PROCEDURES 1953 Worldwide Marevas today normally include a provision requiring thatthe injunction be declared enforceable or that it actually be enforced by a court in the relevant foreign jurisdiction, as a condition of the effectiveness of the injunction against third parties there who are not subject to the High Courts jurisdiction.”* United Kingdom courts also discharge or vary Mareva injunctions, particularly where they adversely affeot the rights of innocent third parties."® In some cases, the injunction is also varied or discharged to benefit the defendant, provided that the purpose for which the Mareva was originally issued is not thereby compromised: E, Mareva Injunctions—Canada Following the United Kingdom, Canada lost little time in accepting the Mareva injunction, as early as 1979.” ‘The Supreme Court of Canada, in Aetna Financial Services v_ Feigelman, recognized the Mareva order, but wamed that the English rules regarding its use could not simply be transplanted into a federal state such as Canada without some adaptation."* The court further held that in Canada, a “strong prima facic case, rather than merely a “good arguable case,” would hive to be shown by the Mareva applicant in order to obtain the injunction.” Mareva injunctions were also approved by the Federal Court of Canada” Canadian ‘Transpories Martins LDA., {1994} 2 Lloyds Re. 392, 393 (Q1B) (combining worldwide disclosure order with Mare injneton aflecngnr-jariictonl ase). 343. See The Res K, [1978] Love's Rep $45, 56263, 344. Seo Practice Dirction 1994, supra noe 321, Annex 2,§ 2. M5. Sor Ocemica Castelana Armadora S.A. Mineralimportexpor Alka "Navigation Inc. The Theotako)(1983] 2 Lloyd's Rep. 204, 204; se also TET, MLC, supra nee |, at 93-98 346. Soe agi Ministry of Defense w.Arcepey Shipping Co. S.A. (The Ange Bel), [1980 1 Love's Rep. 62, 637 (1979: see alto Corel Commodities Ld. Siporex Trade S.A, [1997) | Lloe's Rep. 424, 435 (CA) (dschargng a Marva injunetion due 10 the Claimant's unexplained dely 4 prosecute the claim for some 19 months), Srerdbor ‘Wansa, 1996] 2 Loys's Rep. $59, 875, 576 (CAL), TETLEY, MLC, supra note 1, a 934- 36 M47. See TORY, MLC, supra note at 1002 (eting ely Canadian Marea ecsions). Other Bish Commonsvealh countries ave alo embraced the Maeva eral. See, eg Jackson v. Selig Indus Li. (1987) 61 AJR. 332 (Aus) Si. (1985) 1 SCR 2,4, 3437. The Supeme Court pointed out for example, that the grant of Mate injunction probit the unser of assets between Canadian provinces might be unwarranted, in view of the possiblity of intovincalenforement of judgements throughout Canada See ia 3437 SED. Se ud 027, se also Pegasus Lines Li. SA. v. Devil Shipping Ltd (1996] 120 FIER. 241, 268.69 Fa); Tenusy, MLC, supra note I, 1008, 1088, 350." See Tete, MLC, sypra nae 1, at 10061954 TULANE LAW REVIEW (Vol. 73:1895 courts have also followed the British lead in issuing “worldwide” ‘Mareva injunctions." ‘Mareva process in the Federal Court of Canada (where most ‘maritime law disputes are tried) is govemed by the general rules on interlocutory and interim injunctions in the Federal Court Rules, 1998. The injunction is granted by the judge on motion.” The ‘moving party for an interlocutory injunction is required to “undertake to abide by any order conceming damages caused by the granting or extension of the injunction,” unless a judge orders otherwise.” This is, in effect, the “cross-undertaking in damages” of the United Kingdom, and the applicant may be required to put up security in case the injunction proves to have been unjustified. An interim injunction ‘may be issued, on an ex parte motion, for a petiod not exceeding, fourteen days, when the judge is satisfied, in a case of urgency, that no notice is possible or that to give notice would defeat the purpose of the motion.” As in the United Kingdom, the Mareva injunction in Canada_may be taken at the same time as the action in rem and reat ‘Although the matter has yet to be decided, it is by no means certain that the issuance of a Mareva injunction ex parte could be successfully challenged in Canada on grounds relating to the Bill of Rights of 1960” or the Canadian Charter of Rights and Freedoms of 1982," particularly because of the possibility of the defendant: (J)obtaining the discharge or variance of the injunction, (2) giving 351. See, eg Community Asn ofS Inon Lake, Inc, . Maclver [196] | W.WR. 16, 170 tan Ce App) Mooney ¥ Orr (1994) 98 BCL-R- (2) 318 (BC S.C), Tete, MLC, supra note I, a 1004 9.34; John Arnold Epp, World-wide Maes Injunctions in Connon Law Canada, $9 Moo, L. REV. 460 (199 se eso Vaughan Hack & Edward Babin, Mares Injunctions in Canada" Teritorial drpecs, 28 CaN. BUS. LJ. 430 (1997), Elizabeth Edinger, Comments on Black and Babin, “Morea ctoes i» Conala TeniorialAspet', 28 Can. BUS LJ. 477 (1997), Paul Michell, The Marea Injunction in id of Foreign Proceedings, 4 Qs0c008 HALL LJ. 741 (1996), Michael Andtew Skene, Conmercial Ligation Beyond the Pale A Comparison of Exiaterrtoral dmisut and Mareva Juristlcion Exercied. by the Courts of land and British Columbia in Commercial Disputes, 301. BRIE COURL.L- REY. (1998) 352. SOR 98105, n fore Apel 25,1998. The Federal Cours jurtin to issue Marea injnetions bas bao held 10 be dsived from its power to proc end preserve is oven proces Soe Stall Estate Swecan fn" Li. [1990] TEC. 118, 17 $3. Federal Cou Res, 198, Rule 3731), 354. HZ Rule3730). 355. Seeud Rule 374), 4356, See Parmar Fisheries Lv. Parcera Maria, 1982} 141 DIL. (34) 498, $03- 05 (LS. Supe CL); TENLEY, MLC, supra noe I, at 1006, 1352, See Canaiian Bill oFRights SC. 8 &9 Eliz 2, ch 44 (1960) (Con) 338. Part of he Constition Act, 1982, is Schedule B to the Canads Act, 1982, ch 1g). 1999} MARITIME LAW PROCEDURES 1955 security o obtain release ofthe assets, (3) securing the enforcement of the plaintiff's cross-undertaking in damages, or (4) suing for damages for bad faith by the plaintiff in issuing the injunction wrongfully.” Fhe Mareva Injunction, the Action In Rem, and the Attachment Because the Mareva injunction is purely a court order freezing assets, it does not in itself found the jurisdiction of the court over the ‘merits of the underlying claim, nor does it place the “frozen” assets under the court’s authority so as to permit their judicial sale in satisfaction of an eventual judgment allowing the ciaim. For these reasons, the Mareva injunction is a less effective mechanism for assisting the claimant in quest of pre-judgment security than the civilian saisie conservatoire, the old English Admiralty attachment or the modem U.S. maritime attachment. Nevertheless, the Mareva injunction also has certain advantages in comparison with those more traditional maritime enforcement procedures. ‘The saisie conservatoire can immobilize either the defendant's property or, in some cases, that of a third party, whereas the Mareva order is limited to the defendant's property." On the other hand, the ‘Mareva injunction ean “trevee" any or all of the defendants assets in our out of the jurisdiction and can be used in aid of any type of claim. By comparison, the saisie conservatoire under the Arrest Convention 1952 permits only the attachment of one ship by any one claimant for any one “maritime claim” listed in article 1(1) of the Convention, Neither the Mareva nor the saisie conservatoire founds Jjurisdiction2® The act in fem is more effective than the Mareva injunction in that: (1) It gives the court jurisdiction to adjudicate the claim on its ‘merits and puts the ship or other res in the court’s custody. The Mareva applicant, on the other hand, must establish the court’s in. ppersonam jurisdiction over the claim, and the injunction merely 389, See generally TeILEY, MLC, supra note 1, at 101415, 1085-86; se also ‘Canaan Charter of Rights ane Freedors § | (permiting ceria esctions on base rights ‘which are "demonstrably jie na ee and democrat oe) 360. Soe Mercedes Bers AG. v. Lenuck, [1995] 2 Lloy's Rep. 417, 424 (PC) (CMoreves, now quite clear that Marva rele takes effet in persona lon; is not an tachment gives the claimant no propia rghs nthe asels seized, nd no advantage (over other creditors ofthe defendant") 36. Seeud 362. Sorat 363, See TETLEY, MLC, sypra note |, a 1017-18,1956 TULANE LAW REVIEW (Nol. 73:1895 prohibits the removal or dissipation of the assets affected, on pain of contempt of court. (@) The action in rem plaintiff has been held entitled to an arest ‘warrant as of right, whereas the Mareva injunction petitioner must depend on judicial discretion. G) The action in rem, asserting maritime liens or statutory rights in rem, enforces those claims according to their respective ranking, while the Mareva injunction confers no special priority on the underlying claim. (4) Moreover, under U.K. law, where the “offending ship” is chartered, cither it or a sister ship belonging to the charterer may be arrested in rem if the charterer would have been personally liable on the claim when it arose. By comparison, the Marewr injunction permits only the property of the defendant (the charterer, in this example) to be “frozen.” (5). Arrest in rem claimants are rarely condemned in damages, unless their arrest was “wrongful” (in other words, motivated by malice or gross negligence). On the other hand, Mareva petitioners are more frequently found liable in damages, where their injunctions are held to be either unjustified ar abusive. (6) Finally, third parties may assert certain well-defined procedures where they are affected by an arrest in rem (for example, a caveat against arrest), whereas third parties prejudiced by Mareva injunctions must take substantive proceedings to protect their rights? ‘Among the advantages of the Mareva injunction over the action in rem are the following: (1). The action in rem permits only the arrest of the ship (or in some cases, cargo, fieight, bunkers or judicial sale proceeds) in the jurisdiction. Mareva injunctions, on the contrary, may affect all types of property of the defendant, located both inside the jurisdiction and abroad. (2) Mareva injunctions may affect more than one ship, whereas only one ship may be arrested for any one maritime claim under the Arrest Convention 1952, (3)__‘The Mareva injunction leaves the “frozen” property in the hands of the defendant, thus minimizing costs pending trial of the claim. Arrest in rem, by comparison, entails significant costs of arrest and expenses in custodia legis 364, Seed a 102021 1999] MARITIME LAW PROCEDURES 1957 (4) _Mareva injunction applicants furnish undertakings to pay damages if so ordered, while action in rem plaintflS must furnish security for the Marshal's expenses of arrest and custody. (5) Mareva injunctions are obtainable when the judge is available. On the other hand, actions in rem may be filed only when the appropriate court offices are open. (©) Mareva petitioners in the United Kingdom need only undertake fo issue proceedings and file an affidavit. Action in rem plaintifs, however, must actually issue proceedings and file an affidavit, (7) Assets subject to a Mareva otder may, with the court's permission, be used to pay ordinary trade debts or to carry on business or personal life, whereas use of assets arrested in rem is inconsistent with their custody by the Admiralty Marshal. G. Conelusion—Maareva Injunction ‘The Mareva injunction has become an entrenched part of legal process, including maritime law process, in England and other British Commonwealth countries, since its inception in 1975. It compensates partially for the alleged extinction hy non-user of the fold Admiralty attachment. One may well ask, however, whether Lord Denning would not have been on more solid legal ground in reviving the moribund attachment than in creating a wholly new species of injunction with particular rules of its own. Had he resuscitated the Admiralty attachment, Lord Denning would have provided judges with a more useful pre-judgment security device, ‘which would havg confirmed the court’s jurisdiction and would also have enabled the United Kingdom to comply more fully with the essentially civilian regime of the Arrest Convention 1952 in respect of seizures for any maritime claim. Civitian countries such as France, which never lost the saisie conservatoire, and the United States, which preserved the attachment after its presumed demise in England, are fortunate to possess that ‘most useful weapon in the arsenal of their pre-judgment admiralty procedures. 365, Seed at 1018-20, 366. Seed 8996-97,1958 TULANE LAW REVIEW (Vol. 73:1895 VIL. THE Awrow PILLER ORDER A. Introduetion At almost the same time that the English Court of Appeal created the Mareva injunction, it also approved another type of injunction, now known as the “Anton Piller order,” the name being atributable to the Cour’s 1975 decision in Anton Piller KG . Manufacturing Processes Ltd." The House of Lords, in Rank Film Distributors Lid. x. Video Information Centre,” upheld the High Court's jurisdiction to grant Anton Piller orders, either as part of the Court's inherent jurisdiction or under its power to issue injunctions, now provided for in section 37(1) of the Supreme Court Act, 1981." ‘The Anton Piller order is an ex parte injunction, enjoining, the party to whom itis addressed to consent, on pain of contempt of court, to the applicant's entry into and search of premises controlled by the defendant, as well as to the examination, removal and/or copying of documents and/or other property found there and specified in the order, for use in connection with actual or intended legal proceedings.” This type of court order has proven to be a valuable procedure for securing and preserving evidence, particularly in intellectual propery litigation, ahough itis used in all types of suits, including maritime cases. B. The Anton Piller Order-—United Kingdom ‘The applicant for an Anton Piller order must show evidence of: (1)a strong prima facie case favouring issuance of the injunction, (2) serious damage (actual or potential) to himself if the injunction is refused, (3) possession by the defendant of incriminating documents or things, and (4) the possibility that such evidence may be destroyed before any application inter partes can be made.” ‘The balance of convenience must also favour issuance of the order” ‘The procedure requires 2 motion, either before or after trial, supported by an affidavit, in which the applicant must make “full and frank 367. [1976] On 55 (CA). The est reported decision gaming such an ordr was the 1974 judgment of Templeman Jin EMI Lad» Pandy, [1975] 1 WER. 302(Ch). ‘36s (1981]2 WLR 668, 672-73 LL, 4369. See The Supreme Court Act, 981, ch 54, § 37) Eng. 310. See generally MARIN DOCKRAY, ANTON PILER Onbens 2; Terry, MLLC., supranse | 1022.28 171. See Anton Piller KG v Manafctring Procestes Ltd. [1976] Ch §5,62(C.A.). 372. See Columbia ere indus. ne. v. Robinson, [1987] Ch. 38, 76; Loc lat PLC. 1 Beswick, [1989] 1 WLR. 1268, 281 (Ch); CoeaCola Co. v. Gilbey, [895] 4 All ER TH, TS (Ca), Doc, sypranste 379, a 19.20. 1999] MARITIME LAW PROCEDURES 1959 disclosure” of all relevant facts and the specific provisions he is seeking.” Anton Piller Onders—United Kingdom Procedural Safeguards Anton Piller orders gave rise to an understandable concem over ‘the civil rights of defendants, particularly in respect of the privilege against self-incrimination.” As a result, quite elaborate procedural safeguards were established in the United Kingdom in an effort to prevent any potential abuse of the injunction, These safeguards are included in the same Practice Direction of July 28, 1994, that regulates Mareva injunction process in the United Kingdom.”> ‘Among the most important procedural controls on Anton Piller ‘orders are: (1) applications for such an order are no longer heard by judges in chambers; (2) the order is served by a “supervising solicitor,” independent of the law firm representing the applicant, who must explain the order to the defendant fairly and in “everyday language,” inform him of his right to seek legal advice and to apply for the variance or discharge of the order, and report in writing to the plaintif’s solicitor on the carrying out of the order, (3) the defendant may insist that nobody be present who could gain commercially from anything he might read or see on the premises; (4) the defendant may refuse entry to the premises to be searched before 9:30 am. o after 5:30 pm. and all day Saturday and Sunday; (5) the premises may only be searched in the presence of the defendant or a person appearing to be his responsible employee; (6) the items removed from the premises ‘must be listed before removal, with a copy of the list to be remitted to the defendant; and (7) the defendant may seek to have the order varied or discharged.” ‘The plaintiff applying for an Anton Piller otder must undertake, inter alia: (1) 0 compensate the defendant in damages for losses caused by the order or its carrying out; (2) to issue and serve a writ on the defendant (ifnot already done); (3) to serve the defendant with the affidavits and a notice of motion/summons, as well as with a copy of the supervising solicitor’s report on the carrying out of the order, (4)not to use any information or documents obtained as a result of the carrying out of the order, except for the legal proceedings concemed; 373, See Dock pra noe 370, 26-32 BH Secid 2,305, 4375, ‘Se Practice Dieeion 1994, spre note 321, at $B) & Annex | (ihe standard {orm of Ann Pilar) Note tat the standard for of Auton Piller order Was changed bythe Practice Diretion of October 28,1996 See [1996] | WLR. 1552. ‘376. See Universal Temoseasers Li. Hibbs, [1982] | WLR. 840, 859-60 (Ch).1960 TULANE LAW REVIEW (Vol. 73:1895 and (5) not to inform anyone else of the proceedings until after the return date.’” Additional procedural obligations are imposed on the plaintiff's solicitor, particularly regarding retum of the items removed.” ‘Among the main grounds for discharging an Anton Piller order are: (1) the applicant’s bad faith or material nondisclosure in obtaining the order, (2) the unfounded issuance or improper execution of the ‘order, and (3) the risk of incrimination of the party to whom the order is addressed.” Anton Piller orders have also been issued in the United Kingdom with respect to foreign premises and foreign proceedings.” D. Anton Piller Onders—Canada ‘The Canadian judiciary adopted the Anton Piller order in the carly 1980s, so thai it is now an integral part of the legal process available in both the superior courts of Canada’s provinces. and territories and the Federal Court of Canada." Nor has the injunction escaped the attention of commentators on Canadian law?" ‘As a result of the Supreme Court of Canada’s decision in Canadian Broadcasting Corp v Dagenais,"? diseretionary court orders are now subject to judicial review under the Canadian Charter of Rights and Freedoms.™* Accordingly, in 1996, Judge Reed of the Federal Court of Canada, in Fila Canada Ine. x Doe, held that Anton Piller orders were subject to s:ction 8 of the Charter, prohibiting unreasonable search and seize.’ She took the opportunity to suggest a few specific practices, resembling those of the United 377. See Practice Dieton 198, supra nce 321, Annee Sched 3 318. Soe Amer I Sco. 4 319, ‘Ste Docu, Spr note 370, 69-14 (cing dso). 30, Soot ws 381, Soe TM, MLC, pratt 1024.48 382, So egy Tea, MCC, ups nt 1a 024, nA J Benya, Aton Per Orders 4 Canadon Common Lav pach 34 U. Toxon0 Lt. 1 (980 ley Bemnan, ton Pl Iuncons An Update, 2 IVE. Paar 1 9 (1980; Michel 2 Mannan, The Rgh 10 Sience inthe Presence of Anon Pll’ A Ovation of So Incrtinaton, 26 Atzh: L Rv. 332 (1985 Allan M Rock, The “nton Pil” Oder: dn ‘Ecamnation oft Natur, Development and Pree Poston n Canada, § ADV Q. 191 (1984-85) George Tach, Exiorng the Outer Ls The dnt ler Grin Cnade, SPAtan L-new aio (oe3) 38h. (1994) SCR 835, 83637 shh Pett Coton Aa, 1, Shee eC et 9 oc 348. (199 3 F306 1999] MARITIME LAW PROCEDURES 1961 Kingdom, which she believed should be adopted by the Federal Court in espect of such orders, in the interests of civil rights of Canadians. Canadian judges are showing caution in granting Anton Piller orders, following English precedent. In Profekta International Inc. x ‘Aun Lav Mai, for example, it was held that Anton Piller orders should be granted in only “the rarest of circumstances,” because they confer con the moving party a search and seizure power that runs contrary to the principles of private property and trespass."” To obtain such an order, as in England, the moving party must demonstrate to the Canadian court: (1) “an extremely strong prima facie case,” (2) the potential for very serious damage, and (3) “clear evidence that the ‘other party has in its possession incriminating documents ot things, and that there isa real possibility that the other party may destroy such ‘material before any application infer partes can be made.""* After the action has commenced, the court must also be convinced that itis appropriate to proceed in the absence of the other party.” ‘The judge in Profekta was loathe to grant the order ex parte, particularly as the other party was represented by counsel, but did so because the plaintiff had shown “compelling reasons” for believing that if notice of the motion were given to the defendant, the evidence sought would disappear, thus justifying a derogation ffom the audi alteram partem rule.” There was also ‘compelling evidence thatthe defendant (was) bent on flouting the process of the court by refusing to abide by the ordinary procedure of discovery.” E, Conclusion—Anton Piller Orders Anton Piller ogders ensure that vital evidence will be available at trial, before it can be destroyed or spirited away by unscrupulous 1386, Seu. 49-500 (reormending, mong othr procedures were the filing of te pplication in the Federal Court a lest two ela das Defoe the hearing of the maton; the ‘eiement thatthe applicant ehow avery rong prin facie ease, he equitemen for the presence ofa supervising solicitor to obyerve and tert on the sevice and execution of he ‘Sider) Judge Reed alo recommended & numberof practices felting to the motion for ‘view of te onder’ execution andthe development of model Anion Pile ode Soe. at 513-04 se alt Tern, MLC supra note 1, 9 1025 0484. 387. [1997] FC 223,227.28, BAB. 1d 0228, 589. Seed 390. Seed st 29.34 (cing EMI Lid. Pan, 1978] 1 WLLR. 302 (Ch); Yous. Stana, (1980) 1 WLR. 1540 (CA), sor alan ROBERT J. SHARPE, INUNCTIONS AND Sricinc PraroRUANCH 2-6 24 e. 1992), 11 Hd af 233 (quoting SHARP, pra note 39) Bur of Ulamar Canada In. v Sooona Ine. [1988] 2 FC: (retusing where an order permiting the general inspection of 3 hyp and the prdcton of dacbments because evidence ofthe acetlen in question could be ‘sted by the nara disovery proces)1962 TULANE LAW REVIEW [Vol. 73:1895 defendants. ‘The procedure must be closely regulated, however, to safeguard basic property rights of honest individuals and corporations.” ‘VIII. THE ARREST OF SHIPS CONVENTION 1999 A. Introduction ‘A Draft Revision of the Arrest Convention 1952 was adopted by the Comité Maritime Intemational (CMI at its conference in Lisbon in 1985." This “Lisbon Draft” was submitted by the CMI, together with a draft revision of the Maritime Liens and Mortgages Convention 1967," to the Intemational Maritime Organization (IMO) and the’ United Nations Conference on Trade and Development (UNCTAD). The Joint Intergovernmental Group of Experts on Maritime Liens and Mortgages and Related Subjects (IGE), established by IMO and UNCTAD to review the maritime liens ‘and mortgages conventions and related enforcement procedures, recommended in 1989 that further work on revising the Arrest Convention 1952 be postponed, pending the adoption of new Maritime Liens and Mortgages Convention.”* Following the adoption of the Maritime Mortgages and Liens Convention 1993)% work resumed within the JIGE on revising the Arrest Convention 1952. ‘The JIGE completed its consideration of revisions to the Arrest Convention at its ninth session, held in Geneva from December 2 to December 6, 1996,” and requested the Secretariats of IMO and UNCTAD, in consultation with the JIGE Chairman, to prepare a set of draft articles on the basis of the decisions taken by the Group." The “Draft Articles for a Convention on Arrest of Ships,” dated April 14, 392. See generally Ronald Crsigen, Anion Pll Valuable Remedy or Oppresive ‘ao? Abvoe. S.J, Oct 1995 a IT; Paul D. Godin Anton Piller Ones tna Age of ‘Sfepicism:. Chater Applicaton and Other Safeguard or Judicial Onder Searches, 4 Un Tororo Pac. L. Re 107 (1996) (dscumsing the prota safeguards walla when ering out he ode). 1393. See BeRL NUR, ARREST OF SPS sypra noe 8a 186-90 4304. The Intemational Convention forthe Unification of Cerin Rules Relating to “Mavi Liens and Mortgages, adopt at Brussels, May 27,1967, but notin fre. See ‘TenLey, MLC, supra ote at 1421-28. 1395. Soe BenLINOER, ARAEST OF Ss, pra note 8 at 159. 396, The Internation Convention on hatin Liens and Mortaages, 1993, adopted 1 Geneva, May 6, 1993 [berenater Maritime Lies and Mortgages Convention 1993) See Tene, MLC, pra note at 142938 397. See IGEN)? TOIBIGE 12, LEGMLMI39, 398. ‘See IGEN), TDBAGE 18, LEGMLMII, 49 1999) MARITIME LAW PROCEDURES 1963 1997, were accordingly prepared,” for submission to a diplomatic conference requested by the JIGE;® which was subsequently scheduled for March 1 to March 12, 1999, in Geneva. The final text of the Intemational Convention on the Arrest of Ships, 1999, was adopted at Geneva on March 12, 1999." The Convention will remain ‘open for signature from September 1, 1999, to August 31, 2000, and thereafter for accession. It will come into force six months after the date when ten States have expressed their consent to be bound by it B. General Observations on the Arrest Convention 1999 1. The Definition of “Arrest” The new Convention defines “arrest” at article 1(2) as any detention of restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument. The main change from 1952, apart from the reference to arbitral awards or “other enforceable instrument,” is the inclusion of the words “restriction on removal of a ship,” which would seem to include Mareva injunctions issued in respect of vessels. ‘The new definition, like its predecessor, would also include civilian saisie conservatoire, and the U.S. maritime attachment, as well as arrest in an action in rem, That the new Convention encompasses the two styles of arrest, being the common-law arrest in rem and the civilian saisie conservatoire, or attachment, is one of its strengths, just as it is ofthe 1952 Convention. It would also appear that the new Arrest Convention would recognize many, but seemingly not all, ‘special legislative rights."** Special legislative rights are rights permitting governments and certain ‘other public bodies to seize, detain and, in some cases, sell ot confiscate ships, in order to guarantee certain claims (for example, 399, JIGE(IX)S, TOBMGE. 1/5, LEGMLM M2 400, TheJIGE, in Annex oft eprt on ninth session, supra note 37, requested the IMO Council nd UNCTAD’: Trade and Development Board to consider proposing © the UN General Assembly the convening ofa diplomatic conference to consider and adopt a ‘convention on te arest of seagoing ships onthe basis of the drat antles prepared bythe IGE, ‘401. See UN. Dos, No. AICONF/IES6 (Mar 12, 1999), ‘The fina text of the Intemational Convention on the Ant of Ships, 1999, teprinted in the Apperdi, Ifa Uhereinater Arrest Convention, 199], “402, See Arrest Convention, 199, ina App. a. 120). 403. Seeid a. 140) 404, On special leesatve righ generally, ee erty, MLL, sypra note 1, t= 71,7398, 101-28, 127-68, 169-215,1964 TULANE LAW REVIEW (Vol. 73:1895 harbour dues, wreck removal costs, pollution expenses, or damages), or as sanctions for certain offenses (for example, narcotics trafficking, fisheries violations, or illegal immigration). Govemmental rights of this type abound today, under both international conventions and national legislation, in virtually all countries of the world, and they are frequently accorded precedence by national law over maritime liens and ship mortgages. The failure to take account of them in the Maritime Liens and Mortgages Convention 1993 is a lacuna that threatens to prevent many countries, especially major maritime states such as the United Kingdom and the United State, from becoming parties to that Convention." ‘The new Arrest Convention, fr its part, rightly provides at article 8(3): ‘This Convention does not affeet any rights oF powers vested in any Government or its departments, or in any public authority, ex in any dock or harbour authority, under any intemational convention or under any domestic law or regulation, to detgin or otherwise prevent from sailing any ship within ther jurisdiction This provision is quite similar to the second phrase of article 2 of the 1952 Convention, except that it recognizes governmental rights of detention of ships arising under intemational conventions, as well as under national laws and regulations, This is an important addition, ‘because today many intemational conventions confer rights of ship detention (or even confiscation) on govemnments, notably with respect to drug trafficking™” and pollution. Although many special legislative rights would be covered by this rule, it unfortunately is limited to detention and thus does not cover special legislative rights that empower public bodies, without court intervention, to sell the detained vessel, and to te paid in 405. Soe id 196.77, 175, 214. The Maine Lien and Mocgages Convention 1993, sa arile 12(), does permit ses to enact a special legislative right against jude sale proceeds (aking before all other mime ln came on a veel) for wreck removal Expenses incurred by pli authoeties, but oly where the removal has been ected in the interest of sae navigation or the protection of the marine environment. This ight does not ‘vend to pollution damage, however. See id a6, 148 ard 168 1406." Amest Contention, 199, ia App. at. (3) 407. See, eg, UN. Convention Against Micit Drugs and Psychotropic Substances 1985, opid a Vemma, Dec 20, 1988, and in force Nov. 1, 1980, 28 LLM. 497 (1989), ait Sah se ao TeTLBY, MLC, at 176. "08, See, La ofthe Sex Convention 1982, adopted at Montego Bay Jsmaiea on Dee 10,1982, nd in force Now. 16, 1994, 21 LLM, 1261 (1982), a. 22002) (6) se alo Teruey, MLC, at 11 1999) MARITIME LAW PROCEDURES 1965 preference to most, if not al, other claimants out of the proceeds of that sale” 2. A*Closed” List of “Maritime Claims” ‘The new Convention begins, as does the 1952 Convention, with a list of “maritime claims.” It is important, of course, not to confuse “maritime claims” with “maritime liens.” In the 1952 and 1999 Arrest Conventions, “maritime claims” refers merely to claims permitting the arrest of a ship. Some “maritime claims” are maritime liens” and some are not. Whether specific types of “maritime claims” constitute “maritime liens,” which follow the ship and rank before ship mortgages, or merely statutory rights in rem, which do not follow the ship and rank after the mortgage, depends on ‘other intemational conventions (governing maritime liens and mortgages) and on national law. ‘The JIGE could not reach agreement on whether the list of “maritime claims” should be “closed” (in other words, exhaustive), as under the 1952 Convention, or “open-ended,” to take account of new types of maritime claims that may emerge with the passage of time, Accondingly, article 1(1) of the Draft Articles 1997 sets forth a list of twenty-two ‘specific “maritime claims,” but the preamble, or “chapeau,” includes wording in brackets (in other words, wording for decision by the diplomatic conference), which would have made “maritime claims” an “open-ended” concept” ‘The diplomatic conference appears to have opted for a “closed” list of “maritime claims,” as found in the Arrest Convention 1952. Article 1(1) of the Arrest Convention 1999 begins with the words: “Maritime Claim’ means a claim arising out of one or more of the following”; there follows the list of twenty-two categories of 409._ See, eg, the Canada Marine Act, SC. 1998, ch 10, § 122 (1), which grants port suthorty, the Minster of Transport of Canad, ora person operating the St. Lawrence Seaway under an agreement withthe Government, a len on the sip and proce of ts

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