Applicability of Article 3 (3) of the 1952 Convention on the arrest of sea-going ships
Minutes no. 33/MF/2012 of Constanta Court. Decision no. 10/MF/16.08.2012 of Constanta
Court of Appeal – unpublished.
The ground of the claims of the substantive action in that particular case was represented
by an extra-contractual offence. The court held that the plaintiff does not have a maritime
claim under Article 1(1)(e) of the 1952 Convention (claim arising from contracts relating to
the carriage of goods by a ship under a bill of lading). The Court also held that the claim
asserted by the creditor may neither be classified as one of the other situations covered by
Article 1(1) of the Convention.
The solution is wrong in relation to the provisions of Article 1(1)(f) of the 1952 Convention,
which refers to claims having as cause the loss or damage to goods and luggage carried by a ship,
respectively claims arising from tort liability.
In that case, the plaintiff had previously applied for the arrest of the ship before a foreign
court, application rejected, the decision being recognized in Romania. Constanta Court considered
that this decision does not the force of res judicata in relation to the application filed in a
court of law in Romania, as it relates to temporary measures that do not reach the merits of law
and, therefore, there is no legal impediment in promoting a new application for an arrest. Article 3(3)
of the 1952 Convention only prohibits the setting of an arrest in several contracting states jurisdiction
for the same claim, assumption that cannot be found in this case, since the arrest of the vessel in
question was not set in a foreign jurisdiction.