In order to describe the scope of this Chapter it is necessary to clarify what is
meant by ‘enforcement of maritime claims’. In civil law, the term ‘enforcement’
is normally used in connection with judgments and the enforcement of a judgment
on a ship is possible whatever the nature, maritime or not, of the claim to
which the judgment refers. The only exception is where the claim is secured by a
maritime lien, in which case the judgment may be enforced on the ship in connection
with which the lien has arisen, irrespective of whether or not it is owned
by the debtor. Therefore, the enforcement of a judgment on a ship has no special
‘maritime’ flavour except in respect of the manner in which the enforcement
proceedings are conducted; but that is an area which is left to national
law and, therefore, would be beyond the scope of this Chapter. In common law,
‘enforcement of maritime claims’ includes actions that precede the enforcement
of a judgment and that in civil law would be described as ‘protective’ or ‘provisional’
measures, such as arrest. The French and Italian words used to describe
such latter measure—saisie conservatoire and sequestro conservativo, respectively—
speak for themselves.
However, whereas in civil law a ship could be arrested as security for any claim
against its owner, whether maritime or not, in English law arrest of a ship is
conceived as a measure permissible only in connection with an action in rem
in respect of claims subject to Admiralty jurisdiction. Therefore, when the
idea of a convention on arrest of ships was first considered within the Comité
Maritime International (CMI), civil and common law were wide apart on
the matter.

This explains why, in the period preceding the Second World War, the British
Maritime Law Association took so little interest in the efforts made by the CMI
with a view to producing uniform legislation on arrest of ships. And when, after the
war, it took an active part in the drafting of an international convention on arrest
of ships, the clash between the common law and the civil law approaches emerged
in four areas: first, in respect of the legal nature of the arrest of ships; second, in
respect of the claims for which a ship may be arrested; third, in respect of the ships
that may be arrested; and, fourth, in respect of the jurisdiction on the merits of
the claim.

  1. In respect of the legal nature of the arrest, the conflict was settled in favour of the
    civil law approach: Article 1(2) defines arrest as the detention of a ship to secure a
    maritime claim and states that it does not include the seizure of a ship in satisfaction
    of a judgment.
  2. In respect of claims for which a ship may be arrested, the conflict was settled in
    favour of the common law approach: a ship may be only arrested in respect of the
    claims enumerated in Article 1(1), that correspond approximately to the claims in
    respect of which Admiralty jurisdiction was recognized under section 22 of the
    Supreme Court of Judicature (Consolidation) Act 1925 then in force in England
    and Wales.
  3. In respect of the ship that may be arrested, the conflict was settled mostly in
    favour of the civil law approach, since Article 3(1) permits arrest of any other
    ship which is owned by the owner of the ship in respect of which the claim
    has arisen.
  4. Finally, in respect of the jurisdiction on the merits, there has been a twofold
    compromise, since Article 7(1) provides that the courts of the country in which
    the arrest was made have jurisdiction on the merits in the cases specified therein.
    That did not affect Admiralty jurisdiction with regard to all the claims enumerated
    in section 22(1) of the Supreme Court of Judicature (Consolidation)
    Act 1925, nor in respect of the claims enumerated in section 1(1) of the
    Administration of Justice Act 1956 and subsequently in section 20(2) of the
    Senior Courts Act 1981. Article 7(1) provides, in fact, in its preamble that
    the courts of the country in which the arrest was made have jurisdiction on
    the merits if the domestic law so provides and, in any event, in respect of the
    maritime claims subsequently enumerated. Consequently, the Convention
    has entailed a change in the laws of civil law countries in which generally the
    place where the arrest is made is not considered a connecting factor in respect
    of jurisdiction on the merits.
    The notion of ‘maritime claims’ is fundamental in order to define the scope of this
    Chapter. Prior to the Arrest Convention 1952, only individual maritime institutes,
    and liabilities and claims relating thereto, had been the subject of international
    unification under various Brussels Conventions, beginning with the two 1910

Conventions on Collision and Salvage. The first convention that covered globally
several ‘maritime’ claims was the 1924 Convention on limitation of shipowners’
liability, but no term was used in order to cover all of them globally. It is only in
Article 1(1) of the Arrest Convention 1952 that a definition of ‘maritime claim’ is
found. The provision in that Article has, in fact, even if only for the purposes of that
Convention, the value of a definition since the list of claims is a closed list.
Other relevant conventions, in addition to the Arrest Convention 1999, in which
the enforcement of maritime claims is dealt with are the 1926 and the 1993 MLM
Conventions, the 1957 Limitation of Liability Convention, and the LLMC
Convention as amended by its 1996 Protocol, as well as the CLC 1992 as
amended and the Bunkers Convention.
The enforcement of judgments issued in respect of maritime claims is beyond the
scope of this Chapter, except where the proceeds of sale of the property seized
must be distributed amongst various claimants and an issue of priority arises because
the sum available is not sufficient to satisfy all claimants in full. The subject
matter of the enforcement that must be considered in this Chapter differs from
two standpoints. First, it is confined only to the enforcement of the claims on
ships. Second, it normally (except for the limitation of liability) relates to a stage
prior to that of the enforcement of the judgment the claimant may obtain, namely
the stage at which the claimant intends to secure the subsequent enforcement of
a judgment and, at the same time, possibly to ensure that the ship (or the security
provided in lieu of the ship) on which a claim may subsequently be enforced is
within the jurisdiction of the court that will issue a judgment on the merits. That
explains why both the 1952 and the 1999 Arrest Conventions state that they do
not apply to seizure of a ship in execution or satisfaction of a judgment (or other
enforceable instrument).
The institutes that come into play are arrest of ships, maritime liens, limitation of
liability, and jurisdiction.