Ship arrest in Ukraine

Maxim Kocherzhenko

        On May 16, 2012 International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships of 1952 entered into legal force in Ukraine. With coming of the Convention into force Verkhovna Rada (the Ukrainian parliament) amended certain regulations to bring them in line with the Convention, as well as to ensure their use by the Ukrainian courts (during a trial Ukrainian courts are guided primarily by the Ukrainian procedural laws). Thus, changes were made in the Civil Procedural and the Commercial Procedural Codes regarding establishing of the jurisdiction over the cases on ship arrest in respect of the maritime claim. According to the new editions of these codes statement about the arrest of the vessel in respect of the maritime claim must be considered by the court at the location of the port in Ukraine, where the ship is situated, or at the location of the port of her registration.

       Despite the fact that two years have passed since these amendments Ukrainian courts continue to impose the arrests on vessels only in a way of the claim security and do not consider the applications for the arrest of the vessel in respect of the maritime claim in accordance with International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships. This happens primarily due to the fact that the Civil Procedural and the Commercial Procedural Codes do not contain provisions on the consideration procedure of the application for the arrest of the vessel for the maritime claim. Thus, the mentioned codes do not contain the form of such an application, the order and terms of its filing and consideration, the order of another security provision to release the ship from the arrest. Ukrainian legislation also does not provide the amount of the court fee for filing an application for the ship arrest for the maritime claim.

        Thus, despite the formal accession of Ukraine to International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships and references to it in some court decisions, Ukrainian courts in practice can not apply it to the full. The order of the ship arrest which is currently applied by Ukrainian judges substantially limits the plaintiffs while arresting  vessels in Ukraine and the defendant in releasing them from the arrest by providing another security of a maritime claim. The rules on jurisdiction over the cases where the plaintiff seeks the arrest of the vessel in order to secure the claim differ from the jurisdiction over the cases on the ship arrest in respect of the maritime claim. Also there is a different procedure for bringing decisions about the substitution of the claim security and the release of the vessel from the arrest. In contrast to the arrest of the vessel as the claim security in the case on the arrest of the vessels in respect of the maritime claim in accordance with the Convention the matter can be considered on the merits by another court than the one which brought the decision about the ship arrest. Application of the ship arrest in respect of the maritime claim in Ukraine, for example, will allow the plaintiffs, whose dispute shall be resolved or are already being considered by an arbitration, to arrest a ship in Ukraine. In case of using the procedure of securing a claim the plaintiff does not have such an opportunity. To date in Ukraine a vessel can be arrested prior to filing of the claim only in commercial disputes between legal entities (or individuals - entrepreneurs) by requesting the commercial court to apply the prevent measures. The arrest imposed on the ship by the application of prevent measures will be valid only for 5 days after the court decision on the arrest is brought. The applicant must file a relevant statement of claim within this period, then the prevent measures will act as the claim security measures. 

         To ensure that the application of the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships becomes possible in Ukraine on practice it is necessary to amend the Civil Procedural and the Commercial Procedural Codes with the provisions regarding the form of an application for the arrest, the order and terms of its filing and consideration, the order of another security provision to release the ship from the arrest, the execution order of the court decision on ship arrest and to amend the Law of Ukraine "On the Court Fee" with the  amount of the court fee for the ship arrest in respect of the maritime claim.

 

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