I N T E R N A T I O N A L M A R I T I M E C O N V E N T I O N S

V O L U M E II

Navigation, Securities, Limitation of Liability and Jurisdiction

F R A N C E S C O B E R L I N G I E R I

inform a lawfrom Routledge

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Glossary xixIntroduction xxiTable of conventions xxiiiTable of decisions, directives, regulations, treaties and conversions xxxiiiTable of UK legislation and international legislation xxxivTable of cases xxxvii

Volume II

Part I Collision

Chapter 1 International Convention for the Unification of Certain Rulesof Law Relating to Collision between Vessels, 1910 3

1 The history of the Convention 32 The scope of application of the Convention 7

2.1 T he type of accidents to which the Convention applies 72.2 Type of ships involved in the collision 82.3 The nationality of the ships 92.4 T he waters in which the collision has taken place 112.5 T he nationality of the ‘persons interested’ 11

3 The liability regime 123.1 T he various regimes in force prior to the Convention 123.2 T he allocation of the burden of proof 123.3 The liability regime under the Convention 13

3.3.1 The situations in which no liability is conceivable 143.3.2 Unilateral fault 163.3.3 Two or more ships at fault 17

3.4 T he apportionment of damages to ships, their cargoes andother properties in case of common fault 19

3.5 Joint liability in respect of damages caused by death orpersonal injury 20

3.6 A collision caused by fault of a pilot 213.7 Apportionment of the loss in case of limitation of liability 23

4 Absence of formalities 235 Absence of legal presumptions 246 Limitation periods 25

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6.1 T he general rule 256.2 T he rule applicable to the right of contribution 256.3 Suspension or interruption of prescription 266.4 Extension of the period of prescription 26

7 Post-collision obligations 278 T he obligations of the contracting parties 299 Relation with other conventions or national laws 30

C hapter 2 International Convention on Certain Rules Concerning CivilJurisdiction in M atters of Collision, 1952 31

1 Introduction 312 Scope of application 323 Cases to which the Convention does not apply 324 Courts in which an action may be brought 33

4.1 Basis of jurisdiction according to the Convention 334.2 Prohibition on bringing further action 354.3 Choice of court agreements 36

5 Rules of procedure 365.1 Counterclaims 365.2 Actions against other parties to the proceedings 375.3 Exercise of jurisdiction in further actions 38

C hapter 3 International Convention for the Unification of Certain Rules Relating to Penal Jurisdiction in M atters of Collision or Other Incidents of Navigation, 1952 39

1 Introduction 392 Scope of application 39

2.1 N ature of the event 402.2 Position of the persons involved 412.3 Place where the event has occurred 41

3 Circumstances in which the flag of the ship is relevant 414 Conflict with other conventions 42

Part II Salvage

Chapter 4 International Convention for the Unification of Certain Rulesof Law Relating to Assistance and Salvage at Sea, 1910 47

1 Introduction 472 Scope of application of the Convention 49

2.1 T he nature of the services 492.2 T he subject m atter of the services 492.3 T he place where the services have been rendered 522.4 By whom and to whom the services may be rendered 52

2.4.1 The nationality of the vessels rendering and receivingthe services 52

2.4.2 Vessels in the same ownership 53

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2.4.3 Ships of war and government vessels 532.4.4 Services rendered by the tug to the tow 542.4.5 Services rendered by the crew of the vessel in danger

or by the pilot 552.4.6 Services rendered from the shore 56

3 T he remuneration due to the salvor 573.1 T he notion of remuneration 573.2 The conditions for the entitlement to a remuneration 59

3.2.1 The notion of danger 593.2.2 The useful result 60

3.3 T he amount of the remuneration 613.4 The allocation of the burden of proof 633.5 When no remuneration is due 63

3.5.1 Prohibition by the vessel to whom assistance isrendered 63

3.6 When the terms of the salvage agreement may be challenged 643.6.1 Agreement made under the influence of danger 643.6.2 Agreement vitiated or remuneration too large or too

small 653.7 From whom the salvage remuneration is due 66

3.7.1 The distribution of the remuneration amongst thesalvors of the ship in danger 66

3.7.2 The apportionment of the remuneration amongst the owner and the persons in the service of thesalving ship(s) 66

3.7.3 The apportionment of the salvage remuneration amongst the salvors of a ship in danger and the salvorsof hum an life 67

4 T he obligation to render assistance to persons in danger 675 Limitation of actions 68

Chapter 5 International Convention on Salvage, 1989 691 Introduction 692 Scope of application 71

2.1 The geographical scope of application of the Convention 712.2 T he nature of the operations to which the Convention applies 72

2.2.1 The definition of salvage operation and the exclusionof the liability salvage 72

2.2.2 The definition of ‘vessel’ 732.2.3 The definition o f ‘property’ 75

2.3 The vessels or other property excluded from the scope of theConvention 762.3.1 Platforms and drilling units 762.3.2 State-owned vessels 77

2.4 The notion of danger 79

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Salvage operations controlled by public authorities 803.1 Possible conflict between the Salvage Convention and other

conventions 813.2 UNESCO Convention 813.3 U NCLOS 833.4 Nairobi Convention 833.5 CLC and Fund Conventions 1992 and Bunker Oil

Convention 2001 84General non-mandatory character of the rules of the SalvageConvention 864.1 M andatory provisions

4.1.1 Contract entered into under the undue influence of87

danger 874.1.2 Abnormal amount of the reward4.1.3 Duties to prevent or minimise damage to the

87

environment 884.1.4 Further mandatory provisions 88

4.2 Non-mandatory provisions 894.3 Provisions that do not concern the relationship between

salvors and owners of the salved property 89Performance of salvage operations 905.1 Duties of the salvor and of the owner and master 90

5.1.1 Duties of the salvor5.1.2 Duties of the owner and master of the vessel in

91

danger and of the owner of other property in danger 925.2 Rights and cooperation of States 94

5.2.1 Rights of coastal States 945.2.2 Cooperation of States Parties 96

5.3 Duty to render assistance 98Rights of salvors 986.1 Conditions for reward 986.2 Criteria for fixing the reward 1006.3 By whom the salvage award must be paid 1086.4 Special compensation 109

6.4.1 Out-of-pocket expenses 1126.4.2 F’air rate for equipment and personnel 112

6.5 SCOPIC Clause 1146.6 Apportionment between salvors 1156.7 T he apportionment between the owner, the master and

the crew 1166.8 Salvage of persons 1166.9 Services rendered under existing contracts 1176.10 T he effect of salvor’s misconduct 1186.11 Prohibition of salvage operations 119Claims and actions 1207.1 Introduction 120

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7.2 M atters arising after the completion of salvage operations 1207.2.1 Maritime liens 1207.2.2 Duty to provide security 1217.2.3 Interim payment 1227.2.4 Limitation of actions 1237.2.5 Interest 1247.2.6 Publication of arbitral awards 124

7.3 Cargoes subject to a special regime 1257.3.1 State-owned cargoes 1257.3.2 Humanitarian cargoes 126

Part III Maritime Liens and Mortgages

Chapter 6 International Convention for the Unification of Certain RulesRelating to Maritime Liens and Mortgages, 1926 131

1 The history of the Convention 1312 T he scope of application of the Convention 134

2.1 T he exclusion of warships and government vessels 1352.2 The type of vessels to which the Convention applies 1352.3 T he nationality of the vessel 1352.4 The connection between the person against whom the claim

has arisen and the vessel on which the maritime lien may be enforced 136

2.5 T he variation by national law of the scope of application 1383 The provisions on hypotheques 1384 The individual maritime liens 1405 National maritime liens 1466 T he properties on which the maritime liens can be enforced 147

6.1 The vessel 1476.2 The appurtenances of the vessel 1486.3 The freight 1486.4 T h e ‘accessories’ of the vessel and freight 150

7 T he ranking of claims secured by maritime liens inter se and in respectof hypotheques 1527.1 T he ranking of claims amongst themselves 152

7.1.1 The ranking per voyage 1527.1.2 The ranking of maritime liens arising in the same voyage 154

8 T he extinction of maritime liens 1558.1 The uniform rules 155

8.1.1 The period for which the liens remain in force 1558.1.2 The date on which the extinction period commences 1568.1.3 The rules applicable in respect of the running of the

period 1578.1.4 Payments in advance 158

8.2 National extension of the limitation periods 1589 T he sale of the vessel 159

9.1 The forced sale 159

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9.2 T he voluntary sale 1599.2.1 T he droit de suite 1599.2.2 When the droit de suite ceases to apply 160

Chapter 7 International Convention on Maritime Liens andMortgages, 1993 162

1 The history of the Convention 1622 T he scope of application of the Convention 1653 Vessels to which the Convention applies 1654 T he provisions on mortgages, hypoth'eques and charges 166

4.1 T he importance for shipping of such provisions 1664.2 T he scope of application of the provisions 1664.3 T he requirements for the recognition and enforcement of

mortgages, hypoth'eques and charges 1674.4 The ranking of the registered securities inter se 1684.5 Protection of mortgagees and of holders of hypoth'eques or charges

in case of change of registration of the vessel 1694.6 Conditions for registration of vessels 171

5 Maritime liens 1715.1 Claims secured by maritime liens 1715.2 Claims set out in art. 4(1) not secured by maritime liens 1745.3 Priority of the Convention maritime liens and of registered

securities 17 55.4 Ranking of maritime liens inter se 1765.5 T he extent to which limitation proceedings may affect priorities 1775.6 National maritime liens and rights of retention 178

5.6.1 National maritime liens 1785.6.2 Rights of retention 179

5.7 T h & droit de suite 1805.8 Extinction of maritime liens 181

5.8.1 T he length of the period and the action required inorder to prevent the extinction 181

5.8.2 The date of commencement of the period 1825.9 The rule pursuant to which maritime liens travel with the

claims 1826 Forced sale 183

6.1 The notice of the forced sale 1846.1.1 T he persons to whom the notice must be given 1846.1.2 The form and publicity of the notice 1856.1.3 The contents of the notice and how much time in

advance it must be given 1856.2 The position of the claimant who has a right of retention 1866.3 The effect of the forced sale on registered securities, maritime

liens and other encumbrances 1866.4 The distribution of the proceeds of sale 187

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6.5 Freedom of States Parties to grant other priorities 1896.6 T he change in the registration of the vessel consequential to

her forced sale 1907 Bareboat registration 190

Part IV Arrest of ships

Chapter 8 International Convention Relating to the Arrest of Sea-GoingShips, 1952 197

1 T he history of the Convention 1972 T he scope of application of the Convention 199

2.1 The notion of arrest 1992.2 T he ships that may be arrested 2002.3 The ships to the arrest of which the Convention does not

apply 2002.4 The situations in which a State may limit or exclude the

application of the Convention 2013 T he measures excluded from the scope of application of the

Convention 2023.1 Forced sale 2023.2 Insolvency proceedings 2023.3 Limitation of liability 2033.4 Penal arrest 2033.5 Detention by governments or public authorities 203

3.5.1 MoU 2043.5.2 The IMO Procedures for Port State Control 2053.5.3 UNCLOS 2053.5.4 EU directives 2063.5.5 SOLAS 2063.5.6 ISPS Code 2073.5.7 International Code of Safety for High Speed Craft

(HSC Code) 2073.5.8 International Management Code for the Safe

Operation of Ships 2083.5.9 M ARPOL 2083.5.10 CLC 1992 209

4 Claims in respect of which a ship may be arrested 2094.1 The burden of proof in respect of the claim for which the

arrest is applied for 2215 Ships that may be arrested 223

5.1 Arrest of the ship in respect of which the claim has arisen orof a sister ship 223

5.2 When the arrest of a ship not owned by the person liable ispermissible 2265.2.1 Claims secured by maritime liens 2265.2.2 Claims against the charterer 227

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5.3 Arrest of a ship owned by the charterer in respect of claims ofthe owner of the chartered ship 2335.3.1 Analysis of the relevant jurisprudence 2335.3.2 Discussion of the problem from the perspective of the

Arrest Convention 2375.4 Right of re-arrest and multiple arrest 239

5.4.1 The prohibition of re-arrest 2395.4.2 T he remedy in case of breach of the prohibition 2415.4.3 T he situations in which re-arrest is permitted 241

5.4.3.1 Release of the bail or other security 2415.4.3.2 Existence of other good cause for maintaining

the arrest 2416 Jurisdiction for the arrest 246

6.1 T he requirement that the arrest be authorised by a judicialauthority 246

6.2 T he requirement that such judicial authority be that of thecontracting State in which the arrest is made 248

6.3 Issues worthy of consideration in respect of art. 4 2506.3.1 Jurisdiction before the arrival of the ship 2506.3.2 Jurisdiction after the ship has sailed 2516.3.3 Arrest pursuant to an order of a foreign court 2516.3.4 Choice of the judicial authority of the State in the

jurisdiction of which the arrest is made 2526.3.5 Jurisdiction for arrest when the court has no

jurisdiction on the merits 2536.3.6 Jurisdiction for arrest when the court has jurisdiction

on the merits but the ship is not within itsjurisdiction 254

6.3.7 Jurisdiction for arrest when a decision on the meritshas already been obtained 255

6.3.8 Exclusive jurisdiction pursuant to the 1952 Conventionon Penal Jurisdiction and to U N CLO S 256

6.3.9 Lis pendens: related actions 2577 Release of the ship from arrest 258

7.1 Release upon bail or other security 2587.2 T he linkage between proceedings for arrest and proceedings

on the merits 2607.3 Failure to timely bring proceedings on the merits 262

7.3.1 Which court must fix the time? 2657.3.2 Agreement on the jurisdiction of a particular court or

on arbitration 2678 Liability of the claimant for wrongful arrest 2679 Jurisdiction on the merits 267

Chapter 9 International Convention on Arrest of Ships, 1999 2741 History of the Convention 274

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2 T he layout and structure of the Convention 2803 T he notion of arrest 2804 The nationality of the ships that may be arrested 2825 W hether the intended navigation is relevant 2826 Ships excluded from the scope of application of the Convention 283

6.1 Ships within the jurisdiction of the flag State arrested by aperson having his habitual residence or principal place ofbusiness in that State 283

6.2 State-owned ships 2846.3 Ships detained or prevented from sailing by governments or

public authorities 2846.4 Insolvency proceedings 2856.5 Limitation of liability 2856.6 Forced sale 2866.7 Subordination of the Convention to national rules or to other

conventions 2867 The claims in respect of which a ship may be arrested 287

7.1 The closed list of maritime claims 2877.2 T he individual maritime claims 288

8 Ships that may be arrested 2998.1 Arrest of the ship in respect of which the claim is asserted 299

8.1.1 Claim against the owner of the ship 3008.1.2 Claim against the demise charterer 3008.1.3 Claim based upon a mortgage, hypotheque or charge 3028.1.4 Claim relating to the ownership or possession of the

ship 3048.1.5 Claim secured by a maritime lien 304

8.2 Arrest of other ships owned by the person liable 3068.3 When the arrest of a ship not owned by the person liable is

permissible 3078.4 Arrest of associated ships 3078.5 Right of re-arrest and multiple arrest 309

8.5.1 Re-arrest 3108.5.2 Multiple arrest 311

9 Procedure relating to arrest 3129.1 Jurisdiction for the arrest 3129.2 The burden of proof in respect of the claim for which the arrest

is requested 3149.3 Enforcement of the arrest 3159.4 Release of the ship from arrest 316

9.4.1 Release after the provision of security 3169.4.2 Release from subsequent arrest 3199.4.3 Failure to bring proceedings on the merits within the

time fixed by the court 3199.5 Release of the security 320

9.5.1 Provision of security in a State Party 320

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9.5.2 Provision of security in a non-party State and in aState Party 321

9.5.3 Failure to bring proceedings on the merits within thetime fixed by the court 322

9.6 Liability for wrongful arrest 3229.7 Jurisdiction on the merits 323

9.7.1 T he general rule 3239.7.2 T he exceptions to the general rule 3259.7.3 The time by which proceedings on the merits must be

brought 3259.8 Recognition and enforcement of judgments 326

Part V Limitation of liability

Chapter 10 International Convention Relating to the Limitation of Liabilityof Owners of Sea-Going Ships, 1957 331

1 T he history of the Convention 3312 Scope of application 3333 Persons entitled to limit 3344 Ships to which the Convention applies 3365 Claims in respect of which the benefit of limitation is applicable 337

5.1 Claims subject to limitation 3375.2 Events in respect of which the liability may be limited to the

amounts indicated in the Convention 3395.3 T he choice of the principle of direct liability 341

6 Claims excepted from limitation 3417 T he loss of the right to limit 342

7.1 T he general rule 3427.2 T he rule applicable in respect of master and crew 345

8 T he limits of liability 3469 T he constitution of the limitation fund 347

10 T he distribution of the fund 34810.1 The basic rules 34810.2 The right of subrogation of the owner 34910.3 The temporary distribution of only a part of the fund 34910.4 Bar to other actions 350

11 T he reservations allowed by the Protocol of Signature 352

Chapter 11 International Convention on Limitation of Liability forMaritime Claims, 1976 353

1 History of the Convention 3532 Scope of application 3543 T he exclusions from the scope of application 355

3.1 Actual exclusions 3553.1.1 Exclusions stated in the Convention 3563.1.2 Exclusions decided by States Parties 356

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3.2 Permissions to State Parties to regulate otherwise the systemof limitation 3573.2.1 System of limitation in respect of passenger claims for

loss of life and personal injury 3573.2.2 System of limitation applicable to certain ships 3573.2.3 System of limitation applicable to claims in cases where

no national interests are involved 3593.3 Prohibition on courts applying the Convention to certain ships 359

4 Persons entitled to limit 3605 Claims in respect of which the benefit of limitation is applicable 362

5.1 Claims subject to limitation 3625.2 Events in respect of which the liability may be limited to the

amounts indicated in the Convention 3645.3 T he choice of the principle of single liability 366

6 Claims excepted from limitation 3667 T he loss of the right to limit 369

7.1 The general rule 3698 T he limits of liability 372

8.1 The general limits 3738.1.1 T he adoption of two separate funds, one for personal

claims and one for property claims 3738.1.2 The limits adopted by the Convention 375

8.2 The limit for passenger claims 3778.3 The unit of account 3778.4 Amendments to the limits 378

9 Aggregation of claims against the persons who benefit from the limit 38010 How limitation of liability may be invoked 380

10.1 Limitation invoked with constitution of a limitation fund 38110.1.1 Who may constitute a limitation fund 38110.1.2 Where the fund may be constituted 38110.1.3 For what sum the fund may be constituted 38110.1.4 How the fund may be constituted 382

10.2 Distribution of the fund 38210.2.1 General rule on distribution 38210.2.2 The right of subrogation 38410.2.3 The protection of the person that may be compelled to

effect payment of a claim subject to limitation 38510.3 Bar to other actions 385

10.3.1 Bar to other actions after the constitution of the fund 38510.3.2 Release of a ship arrested or attached 38610.3.3 An overview of the effect of the constitution of a

limitation fund 38711 Limitation of liability without constitution of a limitation fund 38712 Reservations 388

12.1 Permitted reservations 38812.2 Withdrawal of reservations 389

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Appendix 1: Convention Internationale pour VUnification de Certaines Regiesen Matiere d ’Abordage et Protocole de Signature, 23 Septembre 1910 391English unofficial translation of the Convention 395

Appendix 2: Convention Internationale pour I’unification de certaines regies enmatiere d ’assistance et de sauvetage maritimes 399English unofficial translation of the Convention 403

Appendix 3: International Convention for the Unification of Certain RulesRelating to Maritime Liens and Mortgages, 1926 407

Appendix 4: International Convention on Maritime Liens and Mortgages, 1993 412Appendix 5: International Convention Relating to the Arrest of Sea-Going

Ships, 1952 419Appendix 6: International Convention on Arrest of Ships, 1999 425Appendix 7: International Convention Relating to the Limitation of Liability of

Owners of Sea-Going Ships, 1957 432Appendix 8: International Convention on Limitation of Liability for Maritime

Claims, 1976 and Protocol of 1996 to amend the Convention on Limitation of Liability for Maritime Claims, 1976 438

Appendix 9: Resolution LEG. 5(99) adopted by the Legal Committee on19 April 2012 and notice on Amendments 452

Index 459

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