SHIP ARREST IN NORWAY
By Ingar Fuglevåg
Advokatfirmaet Simonsen Vogt Wiig AS
Filipstad Brygge 1
PO Box 1503 Vika
Tel: (+47) 21 95 55 00
Fax: (+47) 21 95 55 01
1. LEGAL FRAMEWORK
Norway is party to several international conventions within the maritime field, including the 1952 Arrest Convention. Norway has also signed the 1999 Arrest Convention, but this convention has not been ratified by Norway – pending international acceptance of this convention.
Norway is a civil law country, like most European countries apart from the UK, and domestic law is to a much larger extent created through governmental legislation than by case law. International conventions are usually translated and incorporated into domestic legislation. For instance, the 1952 Arrest Convention (hereinafter referred to as the Arrest Convention”) has been incorporated into the Norwegian Maritime Code (NMC), and is mainly found in chapter 4 of the NMC.
Norway has also introduced additional requirements for arrest of ships (which are applicable to arrest of any property, not only ships), and such requirements are not found in the Arrest Convention. I will revert to this below, but the important requirement to note is that an arrest is not granted unless the claimant can show a probable cause for arrest. The mere existence of a maritime claim is not sufficient ground for an arrest in Norway.
2. ARREST PROCEDURE
Arresting a ship is a relatively straight forward matter under Norwegian law, and can be arranged quickly at a reasonable cost.
The claimant must submit an application for arrest to the District Court of the port where the ship has called or is expected to arrive, alternatively to the District Court in the judicial district where the debtor (the owner of the vessel) resides if the ship owner is Norwegian.
The application may be forwarded to the Court prior to the vessel entering the port, if one can present evidence showing that the vessel most likely will call a named port in the very near future. The application has to specify the claim, the size of the claim, the so-called “arrest ground” (see below) and provide for an outline of the allegations of the applicant. Documents supporting the allegations are not mandatory, but should ideally be submitted. A well presented case with supporting evidence increases the probability of obtaining an arrest award ex parte.
It is not necessary for the claimant to issue any formal Power of Attorney when instructing legal counsel in Norway in connection with the arrest application. In some jurisdictions such Power of Attorney must be submitted to the court, duly notarized and legalized. This may be a time critical factor when preparing for an arrest.
There are no substantial fees payable to the court in connection with an arrest, only a minor fee in the region of NOK 2,000 – 3,000 (approx. EUR 250-350). The claimant may, however, be requested to post security. I will address the question of security separately below.
3. CLAIMS IN RESPECT OF WHICH A SHIP MAY BE ARRESTED
All maritime claims as listed in Article 1 (1) of the Arrest Convention, with the addition of compensation for wreck removal, may be the basis for an arrest of the ship. These different maritime claims are listed in the section 92 of the NMC:
Section 92 Maritime Claims
A ship can only be arrested to secure a maritime claim.
A maritime claim means a claim based on one or more of the following circumstances:
a) damage caused by a ship in a collision or otherwise,
b) loss of life or personal injury caused by a ship or occurring in connection with the operation of a ship,
c) salvage and the removal of wrecks,
d) a charterparty or other agreement for the use or hire of a ship,
e) a charterparty or other agreement for the carriage of goods by ship,
f) loss of or damage to goods, including luggage, carried by ship,
g) general average,
k) goods or materials delivered anywhere to a ship for use in its operation and maintenance,
l) the building, repair or fitting out of a ship and costs and fees payable for docking,
m) wages and other remuneration due to the master and other employees on board in respect of their service on the ship,
n) a master’s disbursements, including disbursements by shippers, charterers or agents on behalf of the ship or its owner,
o) a dispute as to the ownership of a ship,
p) a dispute between co-owners of a ship concerning its ownership, possession or use or the revenues from it,
q) any mortgage on or security in a ship, except for a maritime lien.
In order to arrest a ship in Norway, the claim for which the creditor is seeking security need to fall within the scope of section 92 of the NMC as listed above. If the claim falls outside the scope of section 92, and is thus not regarded as maritime claim, it is still possible to arrest other objects than the vessel, e.g. the bunkers onboard to secure a claim for hire payment, claim for insurance proceeds and bank accounts. From a practical viewpoint, an arrest of the vessel’s bunkers may be as effective as arresting the vessel itself, and may often lead to security being put up for claims which are not maritime claims under the NMC and the Arrest Convention. The bunkers must, however, be owned by the debtor, and it is important to keep in mind that under a time charterparty, the bunkers are normally owned by the Charterers, not the Owners.
4. THE ADDITIONAL REQUIREMENT – “ARREST GROUND”
In addition to the main requirement for a “maritime claim”, the applicant must prove upon a balance of probability that he has an “arrest ground“ (in Norwegian: “sikrings¬grunn”). As mentioned above, this is a requirement which is not found in the Arrest Convention, and it is a requirement imposed by domestic law in addition to the rules of the Arrest Convention.
This requirement is set out in the Norwegian Dispute Act, which contains different rules regarding arrest in general, rules which apply both to arrest of ships and other assets. The relevant rule is found in section 33-2 (1), which reads as follows:
“Arrest of assets of economic value can be decreed when the behavior of the debtor gives reason to fear that the enforcement of the claim otherwise will either be made impossible or made substantially more difficult, or has to take place outside the Kingdom”
In short, this means that the Norwegian Courts are provided with discretion as regards whether or not an arrest shall be granted. On this point, Norwegian law deviates from the Arrest Convention.
As opposed to arrest in most other jurisdictions, an arrest in Norway may only be granted if the debtor’s conduct gives reason to assume that enforcement of the claim will either be impossible or significantly more burdensome if an arrest is not granted, or that any enforcement will otherwise have to be made abroad. (This latter alternative is, however, applied very strictly, and is not applicable purely when the debtor is a foreign entity). If it may be proven that the debtor has tried to dissipate his assets (e.g. by transferring assets to other companies), an arrest will most certainly be granted. The same will generally apply if his course of business indicates that there will probably not be any money left unless an arrest is granted. Also, it may prove sufficient if he has failed to settle or respond to an undisputed claim after a number of reminders. It should, however, be noted that it is the actions of the debtor that is relevant; the fact that a debtor is financially weak does not in itself constitute a ground for arrest.
There is, however, one important exemption from this additional requirement; a claimant whose claim is secured by a mortgage or lien on the vessel can arrest the vessel without showing any other cause for an arrest if the secured claim has fallen due. This rule is set out in section 33-2(3) of the Dispute Act. In practice, there are two different categories of claims that may be secured this way. Firstly, claimants with loans secured by a registered mortgage on the vessel can arrest the vessel without any additional reason for arrest, other than the claim is due. The claimant would usually be a bank, acting as lender and mortgagee.
Secondly, a claim secured by a maritime lien will also be entitled to arrest without this additional requirement. Maritime liens are recognized under Norwegian law, and the list of maritime liens in the section 51 of the NMC corresponds with the list in the 1967 Maritime Lien Convention article 4 no 1.
5. OWNERSHIP OF VESSEL – ARREST OF SISTER SHIP
In contrast to some jurisdictions, Norwegian law is strict on the fact that the debtor/defendant must be the owner of the vessel that is being arrested. Claims against time or bareboat charterers do not give the right of arresting the vessel, as the vessel is not owned by the charterers. Norwegian legislators have deviated from the Arrest Convention on this point, as claims against bareboat charterers are subject to arrest pursuant to article 3(4) of the Convention. However, under a time charter, arresting the bunkers onboard may still be a possibility, as the bunkers usually are owned by the charterers.
The legal principle that the debtor has to be the owner of the ship is set out in section 93(4) of the NMC:
“Arrest can only be effected if the ship can serve as an object for the enforcement of a claim according to the general provisions of the Enforcement of Claims Act”.
Turning to the Enforcement of Claims Act, sections 11-4 and 7-1, it is clearly said that the debtor must be the legal owner of the asset that is being arrested.
In principle, the only ship that may be arrested is the one out of which the claim arises. However, in accordance with the Arrest Convention, Norwegian law recognizes the right of sister ship arrest. If vessel A and B are owned by the same legal entity, and this legal entity is the debtor for the claim, either of the vessels may be arrested, even if the claim only arises out of vessel A. It should be noted that both vessels in principle must be owned by the same legal entity in order to enable an arrest of the sister ship. If the ownership of vessels is organized with a holding company and single purpose companies as the registered owner of each vessel, arrest of a sister ship will in principle not be possible under Norwegian law.
Piercing the corporate veil may in theory be possible under Norwegian law, but we have very few court cases on the subject, and the principle has not been litigated with respect to arrest of a sister ship. I think it is fair to say that one should anticipate that the Norwegian courts will accept the structure of companies, and is not likely to pierce the corporate veil in connection with arresting sister ships.
When arresting a vessel in Norway, the question of security may arise in three different situations:
1. The claimant may be asked to put up counter security in order for the arrest to be granted.
2. The claimant may be asked to raise security for port dues that are being incurred during the arrest period.
3. The debtor may arrange for the release of the vessel by posting security.
Starting with the question of counter security, the Court may in its sole discretion make the arrest order conditional upon the claimant providing security for wrongful arrest in a fixed amount. If such request is issued, the claimant must in accordance with the Enforcement of Claims Act raise security in way of cash deposit with the court or a bank guarantee from a Norwegian bank.
It is very difficult to say in advance whether the Court will request counter security, as it varies from judge to judge and from case to case. I think it is fair to say that the Court is more likely to request counter security if in doubt about whether the claimant has a probable maritime claim and sufficient cause for arrest. In my experience, the Courts seldom requests counter security. However, a few years ago, a large number of arrest attempts were made on Russian fishing vessels discharging their cargoes in the Northern parts of Norway. One particular Court, which was the recipient of the majority of arrest applications, then requested counter security on a regular basis. The requested security could be substantial, and the question of the size of the security did also arise. The security is meant to cover liability for wrongful arrest, which usually would be the loss of hire due to the arrest.
One might ask whether the claimant in any case may be held responsible for any loss of hire suffered if the arrest is deemed wrongful. The question is to my knowledge still not finally resolved, but I am of the opinion that one could argue that the loss of hire should not be recoverable for a longer period that one would expect the debtor to arrange for security and the release of the vessel, which is normally a few days. As a comparison, it could be mentioned that under Danish law, such security is, by statutory legislation, limited to five days loss of hire.
The claimant may be requested to provide security for the port dues; if the vessel is arrested while berthed at port facilities owned/operated by the municipal port authorities (the same applies if the vessel later is shifted to such port facilities while under arrest). According to section 97 of the NMC, the claimant must, within one week after the arrest order has been handed down, arrange for security for the port dues. If such security is not posted, the arrest may be lifted upon request from the port authorities. The security needed must cover the port dues for a period of minimum fourteen days and should, in accordance with the Enforcement of Claims Act, be established either by way of a cash deposit or bank guarantee from a Norwegian bank. The port dues are not of any substantial amount, but incur on a daily basis, and a lengthy arrest may lead to a substantial liability towards the port authorities.
Release of vessel:
If an arrest is granted, the debtor may arrange for the release of the vessel by putting up security. If the parties are unable to reach an amicable settlement, a commercial ship owner will of course raise security in order to have the vessel back in a working condition as quickly as possible. Most P&I Clubs will issue a Letter of Undertaking (Club Letter), and this is very often commercially acceptable as a guarantee in order to lift an arrest. It should, however, be noted that in accordance with the Norwegian Enforcement of Claims Act, this is not a security recognized by law. In most cases the arrestor will accept a Club Letter from a reputable P&I Club, and the vessel will then be released according to such mutual agreement. However, if the claimant sticks firmly to Norwegian procedural requirements, the debtor may be forced to make a cash deposit or arrange for a bank guarantee from a Norwegian bank to be established.
7. LIABILITY FOR WRONGFUL ARREST
In principle, section 32-11 of the Dispute Act imposes a strict liability on the arrestor for the loss of the defendant if the claim did not exist at the time the arrest was granted. This means that if the Courts later find that the claimant did not have a maritime claim (a claim which falls within the scope of section 92 of the NMC), the claimant can be held liable for the economic loss the debtor may have suffered due to the arrest, regardless of whether the claimant is to blame for giving misleading information or not. The liability is a strict one.
Such strict liability is only applicable in case the claimant does not have any maritime claim against the debtor at all. If the Court later overturns an arrest issued ex parte due to the lack of sufficient ground for arrest, the claimant does not have any strict liability. However, he may in principle be held liable if he has given wrongful or misleading information about the arrest ground and by such misrepresentation is deemed to have acted negligently.
Even if the Norwegian rules are quite strict and may impose a liability for wrongful arrest on the claimant, it is quite rare to see these rules coming into play. The number of court cases where the claimant has been held liable is not many.