Article issued for the third edition of “Ship Arrests in Practice”, 2008, published by shiparrested.com network.
By Adrian Cristea
Cristea & Partners Law Office
Constanta, 54 Cuza-Voda Street,
Ground floor, flat 3
Tel: 00 40 241 518 112
Fax: 00 40 241 518 802
By Augustin Zabrautanu
Popescu, Iosepovici, Zabrautanu & Associates Law Office
17 Unirii Blvd., Bl. 4A, Sc. B, et. 5, apt.40
Bucuresti, Sector 5
Tel: 00 40 21 336 73 71
Fax: 00 40 21 336 73 72
1. Please give an overview of ship arrest practice in your country.
Conditions imposed by Romanian law :
a) Indicate and provide evidences to the Court that plaintiffs have started the main legal action (Court action or arbitration proceedings according to the provisions of the C/P or B/L) against the defendant. The evidence should be a letter from a Court, apostilled according to Hague Convention 1961 or a letter from the arbitrator appointed showing that arbitration has started;
b) Indicate and provide evidences to the Court that the defendant in the main proceedings is the owner of the vessel;
c) Provide a bank letter of guarantee to the Court as a percentage of the claimed amount (the amount will be fixed by the Court but in most of the cases is 10%). The main purpose of such bank letter of guarantee is to compensate the losses of the defendant owner if finally the claim of the plaintiff will be found ungrounded by the Court.
In case the matter is very urgent, vessels can be provisionally arrested through the Harbor Master, paying a tax of Euro 400 (Saturdays and Sundays Euro 800).
A notice of arrest will be notified to the Harbor Master.
Harbor Master will place the order of arrest to the vessel’s file and will not interrupt in any way vessel’s operations. Notice of arrest will become effective when the vessel will finalize operations and vessel’s agent will attend Harbor Master to receive vessel’s permit to leave outside. Starting with the hour when vessel’s agent will ask for the Permit to leave, Harbor Master will count 24 hours (Saturdays and Sundays are not included within this hours anyway) and the vessel will be arrested for 24 hours. During these 24 hours, plaintiff will need to apply to the Court asking for the arrest of the vessel. Courts are judging these cases on an urgent basis and normally are issuing the decision within 24 hrs. There is no need for the time being to place the counter-security which will be requested by the Court at a later stage.
Court costs are low. Lawyer fees normally calculated on hourly basis Costs are usually recoverable from defendant.
2. Which International Convention applies to arrest of ships in your country?
Romania has acceded to the International Convention for the unification of rules about the arrest of vessels, signed in Brussels on May 10th 1952, on November 8th 1995. For the participant states of the 9th Diplomatic Convention of Maritime Law, it was enforced on February 24th 1956.
Article 8, paragraph 1 of the Convention provides that its provisions are applicable in any contracting state to any vessel that carries the flag of a contracting state. Paragraph 2 of the same article concedes the possibility that vessel that carries the flag of a non-contracting state may be arrested in one of the contracting states according to one of the claims listed in Article 1, or according to any other claim that permits the arrest according to the laws of that state. Romanian Courts are applying this principle when are taking into consideration the arrest of one vessel in Romanian jurisdiction.
3. Is there any other way to arrest a ship in your jurisdiction?
Sister ships may be arrested in Romania, following the provisions of the article 907 and 908 Romanian Commercial Code and not the provisions of the 1952 Arrest Convention.
4. Are these alternatives e.g. saisse conservatoire or freezing order?
Claims subject to ship arrest
5. For which types of claims can you arrest a ship?
A ship can be arrested in Romania for one or more of the claims listed in article 1.1 of the 1952 Arrest Convention.
6. Can you arrest a ship irrespectively of her flag ?
Paragraph 2 of the article 8 of 1952 Arrest Convention gives the possibility that vessel that carries the flag of a non-contracting state may be arrested in one of the contracting states according to one of the claims listed in Article 1, or according to any other claim that permits the arrest according to the laws of that state.
7. Can you arrest a ship irrespectively of the debtor?
As already mentioned it is a need to indicate and provide evidences to the Court that the defendant in the main proceedings is the owner of the vessel.
8. What is the position as regards sister ships and ships in associated ownership?
As mentioned above, sister ships may be arrested in Romania, following the provisions of the article 907 and 908 Romanian Commercial Code and not the provisions of the 1952 Arrest Convention. Romanian Courts are reluctant to order the arrest of sister ships. Ships in associated ownership cannot be arrested in Romania.
9. What is the position as regards Bareboat and Time-Chartered vessels?
Bareboat and Time-Chartered vessels cannot be arrested in Romania for the claims against the Bareboat and/or Time-Charterer.
10. Do your Courts require counter-security in order to arrest a ship?
Court will order to provide a bank letter of guarantee to the Court as a percentage of the claimed amount (the amount will be fixed by the Court but in most of the cases is 10%).
11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime line?
Arrest of a ship for a maritime claim will be done according to 1952 Arrest Convention and arrest of a ship for a maritime lien will be done according to 1926 maritime liens and mortgages Convention.
12. Does you country recognise maritime liens? Under which International Convention, if any?
Romania recognizes maritime liens according to 1926 maritime liens and mortgages Convention.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm?
A notice of arrest will be notified to the Harbor Master.
Harbor Master will place the order of arrest to the vessel’s file and will not interrupt in any way vessel’s operations. Notice of arrest will be placed immediately as the file arrives to our law firm and a legal assistance contract, even by e-mail and/or fax, will be signed with the client.
14. Do you need to provide a POA, or any other documents of the claim to the Court?
Based on the legal assistance contract signed with client, law firm will provide to the Court a power of attorney in the standard format prescribed by Lawyers statute.
15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed?
There is no need to provide original documents to the Court, only copies mentioned to be true copies will be provided to the Court, on the understanding that originals will be kept by the law office. The evidence that main claim proceedings has been instituted should be a letter from a Court, apostilled according to Hague Convention 1961 or a letter from the arbitrator appointed showing that arbitration has started.
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?
17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?
Arrest cannot be requested if legal action on the merits has not yet started prior to the application to the Court.
18. Do the Courts of your country acknowledge wrongful arrest?
19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?
20. Is it possible to have a ship sold pendente lite; if so how long does it take?