Implementation of the Arrest Convention
Professor of Commercial Law, Autonomous
University of Barcelona / President of the Spanish
Maritime Law Association
1. The International Maritime Convention on the Arrest of Ships, 19521 and 19992; 2. Ratifications and entry into force; 3. Different legal methods of implementation; 4. Similarities and differences between the 1952 and 1999 Conventions; 5. Conclusion.
Introduction: the International Maritime Conventions on Arrest of Ships, 1952 and 1999
There are two international maritime Conventions on the arrest of ships under consideration: that of 1952 and that of 1999. Assuming that the first has been replaced by the second, I would like to raise two questions:
(a) Does this mean that the 1952 Convention has been derogated and is it therefore no longer applicable? There are three possible answers: yes, no and maybe.
(b) Does the fact that the draft of the second Convention was both voted on and signed at the Geneva Diplomatic Conference on 12 March 1999 mean that it is applicable in any jurisdiction? The answer is no.
You may have noticed the difference between the two questions. Indeed, they are different, and the answers are different too. The first question deals with the 1952 Convention and tries to determine whether or not it was derogated and is no longer applicable. The second one deals with the 1999 Convention and tries to determine whether it is applicable or not.
I understand your initial perplexity but, please believe me, I do not intend to complicate your life. This chapter intends to explain some of the current issues that any maritime lawyer faces almost every day: the relationship between
1 International Convention Relating to the Arrest of Sea-Going Ships, 1952.
2 International Convention on the Arrest of Ships, 1999.
Ratifications and entry into force
The 1952 Convention was approved in Brussels on 10 May 1952 and came into force on 24 February 1956. It has been ratified by more than 75 countries and put into effect during the last 50 years in many countries. It can be said without hesitation that this has been one of the most popular Conventions in the maritime community. However, there are five important exceptions: Liberia, Panama, USA, Canada and Japan which, for different reasons, have never ratified the said Convention.4
On the other hand, the 1999 Convention was passed in Geneva, on 12 of March 1999 and is not in force yet. The Convention was signed by a significant number of states but for the time being only eight states have expressed their consent to be bound by this Convention.5 Therefore, the consent of three more states is required before the Convention can take effect.6
Voting, approval, signature, accession, ratification, approval, deposit, entry into force, declaration, reservation, statement, denunciation, implementation, publication, promulgation, application, language, interpretation and scope of application are the key words, in order to understand my two previous questions. International uniformity in maritime law is a long and complex procedure that requires a careful legal approach.
3 Kelsen called this issue the Hauptproblem, H. Kelsen, ‘Les rapports de système entre le droit interne et le droit international public’, in Recueil des Cours de l’Académie de Droit International de la Haye, 1926, vol. XIX, p. 275. Most distinguished scholars have dealt with this argument, see: H. Triepel, Völkerrecht und landesrecht (Leipzig: C. L. Hirschfeld, 1899); A. La Pergola, Costituzione e adattamento dell’ordinamento interno al Diritto internazionale (Milan: Giuffrè, 1961). The same question with specific reference to maritime law, I. Arroyo: ‘Convenios internacionales y derecho interno. Referencia especial a la limitación de la responsabilidad por abordaje’, Estudios de Derecho Marítimo, vol. I, p. 341 et seq.
4 See the list of parties in CMI Yearbook 2007–2008 (Antwerp: CMI, 2008), pp. 402–6 and 491.
5 Albania (a) 4 October 2004; Algeria (a) 7 May 2004; Bulgaria (r) 27 July 2000; Estonia (a) 11 May 2001; Latvia (a) 7 December 2001; Liberia (a) 16 September 2005; Spain (a) 7 June 2002 and Syrian Arab Republic (a) 16 October 2002. See CMI Yearbook 2007–2008, p. 491.
6 Art. 14 states that:
1 This Convention shall enter into force six months following the date on which 10 States have expressed their consent to be bound by it.
2 For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect three months after the date of expression of such consent.
It is interesting to make two comments. The Convention does not require other conditions as, e.g., ship tonnage. On the other hand, the 1952 Convention required the consent of only two states, after six months the date of deposit of the second instrument of ratification. The 1999, 10 states after three months.
I have just mentioned 19 different words, in the English language because that is our working common language in this liber amicorum, but can I assume that all readers understand the ‘same common language’? I certainly doubt it because even people with the same mother tongue (English, Spanish, French or Croatian), may have different views and interpretations about the meaning of these 19 key words. Needless to say, we lawyers face problems about the precise meaning of words or constructions in our respective national languages and national law every day. A relevant amount of case litigation is due to different interpretations of the law.
The Arrest Convention, from its origins – when it was voted at the Diplomatic Conference – to the final point of enforcement – when the judge rules about its possible application – goes through a long and complex legal procedure (iter legis) which is worth our attention. I have already mentioned 19 steps. All of them have to be approved in order to reach a definitive decision, whether the Convention will be applied or not. This chapter deals only with one of these topics, that is, the ‘implementation’ of the Arrest Convention. Therefore, I assume that you are familiar with this and have no problems with the interpretation of the 18 remaining steps. The 1969 Vienna Convention on the Law of Treaties is the main legal tool to understand the interpretation of the maritime Conventions.7
Different legal techniques of implementation
Not all states have the same method of implementation of the international maritime Conventions. Besides that, the Convention can be either self-executing or non-self-executing. In most states some sort of implementation of domestic legislation is required. It goes without saying that the different legal methods of implementation may have an impact on the desired uniform interpretation of the Convention. Spain, Croatia and Italy are examples of different ways of implementation.
It is said that a Convention becomes self-executing when the state is a signatory to the treaty and its obligations are put into effect. A non-self-executing Convention instead requires the passing of domestic law or a change in the domestic law in order to fulfil the treaty obligations. In other words, the application of the Convention needs further national legislation. Should the Convention require implementing (enabling) legislation, a state may be in default of its international
7 For example, signature. Normally multilateral conventions provide for signature subject to ratifica-tion, acceptance or approval, also called simple signature. The signature does not mean that the state has undertaken a positive legal obligation, as provided in the treaty. It simply means a preparatory step on the way to ratification by the state. But it also means that the signatory state cannot do acts against the Convention. In other words, the state must refrain in good faith from acts that would defeat the purposes of the Convention.
The so-called ‘consent to be bound’ depends on the final clauses of the treaties. There are four techniques. Definitive signature, different from simple signature. Ratification when the state has previously signed the treaty and after ratifies it. Acceptance and approval have the same value and do not require previous signature. Accession has the same effect to bind the state without signature.
From an academic point of view the above distinction seems rather clear but it is not so clear from a practical point of view. As a matter of fact, it is rather unusual that a so-called self-executing Convention does not require any domestic legislation, at least regarding procedural aspects. Furthermore, governments – for political reasons – take for granted that international Conventions cannot be implemented without due diligence (rectius, or proper changes in domestic legislation). At the end of the day, states wish to preserve their exclusive legislative power and do not want to relinquish it to a supranational body.9 They are reluctant to accept supranational entities with jurisdiction over them.
The case histories of some maritime Conventions are the best examples of what has been said above. The 1910 Salvage Convention10 and the Hague Rules11 have been considered as self-executing and being incorporated into national law. However, what is the explanation to the enactment of the Carriage of Goods by Sea Act, 1936?12 The 1952 Arrest Convention is also a self-executing treaty, as the main obligation – that is the arrest of the ship – can be put into action or executed by a court as soon as the state adheres to the Convention. Should the claimant prove that: (a) the Convention is in force; (b) the instrument of ratification has been deposited; and (c) the case complies with the conditions required by the Convention? If so, the court must grant power to arrest the ship. In principle, no domestic legislation is required to implement the Convention.
However, in Spain, for example, the 1952 Convention was signed and ratified, but the Parliament enacted the Law on the Arrest of Foreign Ships for Maritime
8 Art. 2(1)(d) of the Vienna Convention. The State Party is bound by the Convention under international law (art. 2(1)(g)). The Vienna Convention defines ‘State Party’ as the state that ‘has expressed its consent to be bound by that Treaty by an act of ratification, acceptance, approval o accession, where that Treaty has entered into force for that particular State’.
9 The Law of Treaties provides different tools to protect the interests of the State Party, such as reservations, declarations, statements and notifications.
For example, Italy in connection of the 1952 Arrest Convention:
reserves the right not to apply the provisions of this Convention in cases of maritime credits provided in art. 1 (o) disputes as to the title to or ownership of any ship and (p) -disputes between co-owners of any ship as to the ownership, possession, employment, or earnings of that ship, the arrest of the ship for such credits shall be governed by Italian law.
Reservation made by Yugoslavia and now applicable to Croatia ‘reserves the right not to apply, according to art. 10 of the said Convention, the arrest of ship in cases of credits provided in art. 1. (o) –disputes as to the title to or ownership of any ship’.
10 Convention for the Unification of Certain Rules of Law Relating to Assistance and Salvage at Sea, 1910.
11 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading, 1924.
12 Carriage of Goods by Sea Act (1936), 46 United States Code §§ 1300–1315.
Art. 1. To arrest a foreign ship for maritime claims it is sufficient to allege a maritime claim and to mention the cause of the claim (repairs, premium of salvage, damages, etc.). Therefore proof is not required, not even prima facie evidence. But, the judge is obliged to fix a bond.
Art. 2. Terms and conditions of art. 3 of the Convention will be applied.
Art. 3. Once the ship has been arrested, the defence is limited to infringement of the conditions established in the two previous articles.
This national legislation was enacted in order to overcome some serious problems that jeopardized the direct application of the 1952 Convention in Spain, mainly the question of the written evidence as, according to the Spanish Civil Code of Procedure, it was not possible to arrest without written evidence of the claim.14