RESPONSE OF THE SUB-COMMITTEE ON LIENS, MORTGAGES AND ARREST TO THE DRAFT ARREST CONVENTION
(a) Open ended or closed list
The Committee is opposed to the present suggestion of an open ended list. This leads to uncertainty, disparity between jurisdictions and is wrong in principle, for a person's property should not be open to interference by operation of law except in clear pre-defined circumstances.
(b) With regard to the individual maritime claims the Committee makes the following comments:-
Paragraph (d) :The preference would be for this paragraph to be directly linked with the CLC, Salvage and HNS Conventions. But if an open ended approach is adopted it would be sufficient if the paragraph read :
"The cost of measures taken by any person to prevent or minimise damage including environmental damage".
Paragraph (f) : Phrase "or hire" should be retained: alludes to distract contract.
Paragraph (g) : This is acceptable subject to the deletion of "or passengers in the ship".
Paragraph (h) : Acceptable subject to deleting "including luggage".
Paragraph (m) : The insertion of "reconstructing" is supported.
Paragraph (n) : This may be unnecessary for the position of ports and similar bodies is usually protected by specific legislation. But otherwise there is no objection to the recommended drafting improvement.. It may, however, be a further improvement to insert "dock" after "port", so leaving "charges" to stand independently.
Paragraph (o) : The amendment "but not restricted to" is unnecessary and should be omitted.
Paragraph (p) : The suggested redrafting is supported.
Paragraph (q) : The Committee is opposed to this proposed extension of the definition of a maritime claim.
Paragraph (u) : The proposed redrafting is supported.
Paragraph (v) : This paragraph is opposed as it is unacceptably wide and results in a right of arrest even when the breach would not justify a repudiation of the contract.
(c) Definition of arrest - Article 1(2)
In the context of English law this definition is troublesome for it extends to include a Mareva injunction but does not obviously include an Admiralty action in rem. This problem would be overcome by inserting the phrase "or otherwise" after the word "measure" in the first line. But there remains the issue of policy whether the definition should extend to include Mareva injunctions. This, probably, is a national issue which will have to be confronted. There is no objection to "departure" replacing "removal".
The proposed amendment to Article 2(5) is acceptable.
The deletion of "or is sailing" from Article 2(3) is acceptable.
The deletion of "by or" from Article 2(1) is acceptable.
The use of the word "effected" in Article 2(5) is supported, as is the consistent use of language throughout the Convention.
(a) With regard to maritime liens, the right to arrest should be associated with maritime liens recognised by the lex forum arresti. The Committee is therefore opposed to Article 3(1)(a) and (b) to the extent they are more extensive.
(b) In Article 3(1)(a) the word "registered" should be inserted before mortgage and thereafter the reference should be to a "registered" charge.
(c) In Article 3(1)(d) claims arising under Article 1(1)(t) should be included.
(d) With regard to Article 3(1)(e) the Committee supports the proposed drafting amendment. But otherwise the Committee is of the opinion that the concept of ship ownership should be addressed in the new Arrest Convention. If it is not it will materially dilute the impact of any new convention.
(e) Whereas the Committee supports the concept of an alternative right of arrest, it does not support the cumulative right of arrest provided for in Article 3(2). Otherwise the Committee agrees that the square brackets should be deleted from the provisions in Article 3(2)(6).
With regard to the proposed addition after sub-paragraphs (a) and (b) of Article 3(2), the Committee does not consider that it goes far enough. The new Arrest Convention should define the concept of ship ownership, which is an issue of fundamental importance.
This Article is considered acceptable as drafted.
(a) The proposed amendment to the drafting of Article 5(1) is supported.
(b) The Proposed amendment to the drafting of Article 5(2) is supported.
The Committee considered that it would be more appropriate to title the Article "Liability for Wrongful and Unjustified Arrest".
On this matter the Committee has changed its opinion and now supports the concept of "unjustified" arrest.
The suggested redrafting of Article 6(2) is supported.
The suggested redrafting of Article 8(1) is supported, as is the proposal made with regard to Article 8(3).