Ship Arrest in Italy, by Michele de Meo
de Meo & Associati Studio Legale
demeolawfirm@tiscali.it
Via Crescenzio 43, 00193 Rome, Italy
Phone: (39 06) 689 2175
Fax: (39 06) 688 04928
Applicable Conventions and Laws
Brussels Arrest Convention 1952
The International Convention Relating to the Arrest of Sea-Going Ships signed at Brussels on 10 May 1952, was ratified by Italy in 1977. A creditor may make use of the provisions set out in the Convention against a vessel flying the flag of a Contracting state, and in relation to one of the 17 maritime claims listed therein.
In relation specifically to a collision, an action may be brought pursuant to the Brussels Convention of 1952 on Civil Jurisdiction in Matters Relating to Collisions at Sea, which Italy also ratified in 1977. Such an action may be brought before the court of the place of residence of the defendants or before the court where an arrest has been carried out over the offending vessel or any sister ships, either if the arrest procedure is in fact carried out or if the defendant has put up security to prevent the arrest from being carried out.
The 1999 International Convention on the Arrest of Ships is not yet in force at the time of writing.
Domestic Law
In so far as vessels flying the Italian flag and owned by Italian owners are concerned, a creditor may alternatively use the general procedure set out in the Italian Code of Civil Procedure as referred to in the Code of Navigation, in relation to those claims listed in the Civil Code as general liens, or in the Code of Navigation as special liens.
Jurisdiction
In the case of a maritime claim pursuant to the Brussels Arrest Convention (as defined in Article 1), the courts of the country where the arrest was made may exercise jurisdiction over the case on its merits, according to Article 7, if:
i) the domestic law of the country where the arrest was made gives jurisdiction to such courts;
ii) if the claimant has his habitual residence or principal place of business in the country where the arrest was made;
iii) if the claim concerns the voyage of the ship during which the ship was arrested;
iv) if the claim arose out of a collision or in the circumstances covered by Article 13 of the International Convention for the Unification of Certain Rules of Law with Respect to Collisions Between Vessels, signed in Brussels on September 23, 1910 (ratified by Italy on June 2, 1913);
v) if the claim is for salvage; or
vi) if the claim is based upon a mortgage on the ship arrested.
These provisions would appear not to conflict with the Luxembourg protocol of 1978 in relation to the Brussels Convention on Jurisdiction and Enforcements of Judgments in Civil and Commercial Matters of 1968.
An action pursuant to the Brussels Convention of 1952 on Civil Jurisdiction in Matters Relating to Collisions at Sea, may be brought before the court of the place of residence of the defendants, or before the court where an arrest has been carried out over the offending vessel or any sister ships, either if the arrest procedure is in fact carried out or if the defendant has put up security to prevent the arrest being carried out.
Where, on the other hand, a creditor is contemplating an arrest in accordance with the Code of Navigation under domestic Italian law, he should first ascertain whether the Italian judge has jurisdiction on the merits on the basis of the following points:
(a) Jurisdiction on the basis of the contract (in the absence of an arbitration clause).
(b) A consideration on the basis of article 4 of the Code of Civil Procedure as to whether the Italian judge has jurisdiction in view of the foreign nationality of the defendant.
(c) Jurisdiction on the basis of tort liability principles.
(d) If, in relation to disputes arising out of collision or salvage in the open seas there is jurisdiction of the Italian judge on the basis of article 14 of the navigation code.
Once this first analysis has been carried out, if the Italian judge has jurisdiction the proceedings must be brought before the judge who has territorial jurisdiction on the merits. If the Italian judge has no jurisdiction on the merits, the arrest proceedings may be commenced before the judge of the place where the sequestration is expected to be carried out.
Procedure
The advantage of using either the Convention or the special maritime liens of the Italian Code of Navigation, is that the creditor does not have to prove the danger in the delay but only a prima facie case. It is worth noting that this kind of action introduces in the Italian system the concept of action in rem which is otherwise unknown.
The order of arrest must be served upon the master of the vessel, upon the owner and upon the demise charterer if the claim is brought under the Brussels Arrest Convention of 1952, or pursuant to a special privilege under article 552 of the shipping code. It follows that service upon the agent of the demise charterer only is ineffective.
A sister ship may be arrested under the provisions of the Brussels Arrest Convention except in cases of disputes on title, mortgage and co-ownership. Further according to article 3 of the Convention the arrest of a vessel in possession of a charterer by demise (and in certain circumstances also of a time charterer) is allowed but in this case the sister ship provisions do not apply to any of the ships owned by the actual owner of the vessel.
In order for a creditor to proceed on the basis of the Code of Navigation pursuant to the special liens listed under article 552 thereof (which are equivalent with one addition to those listed in the Brussels Convention 1926) the claim must be supported by a maritime lien as follows:
(a) Law costs and fees due to the state, and expenses incurred in the common interests of creditors for the enforcement procedure, or for pilotage, dock, harbour dues and similar charges; and the expenses of care, maintenance and security of the ship from the time of her entry into the last port.
(b) Claims under the contract of service of the master and crew.
(c) Crew repatriation and maintenance expenses incurred by the merchant marine or consular authorities; social benefit contributions for the crew.
(d) Salvage awards and costs; general average contributions.
(e) Claims for collision or other accidents of navigation, and for damage caused to works in or about docks and harbours; claims for death and personal injury of passengers and crew; claims for loss of or damage to cargo or passengers’ baggage.
(f) Claims arising from contracts entered into by the master where such contracts are necessary for the preservation of the ship or the prosecution of the voyage away from the vessel’s home port.
Italian courts do not accept a P and I club letter of guarantee as such unless the plaintiff is prepared to accept it. A bank guarantee is regarded as good security. Further, in view of the unavoidable urgency connected with this procedure, the Italian judge may be prepared to accept untranslated documents provided translated ones are produced at the following hearing. The same rule applies to faxed documents.