Публикация посвящена вопросам, связанным с задержанием судов и грузов по законодательству Украины. Автор настоящей публикации — партнер Interlegal — отмечает, что правовая конструкция задержания судна несколько несовершенна, что может послужить обстоятельством, способствующим смешению этого института с институтом ареста судов.
Ukrainian law provides for the detention of vessels and cargo by port administrative authorities, which is distinct from the arrest of ships under the Brussels Convention 1952. Such detention is considered a means of securing a maritime claim (particularly one arising out of tort). However, the timeframe and grounds for detention are limited and the provisions governing detention constitute an exception to the general rules on ship arrest under the Brussels Convention. A specific condition of vessel or cargo detention by the port authority is that the demand for securing the maritime claim be brought by a party while the security itself be imposed by another party vested with public authority. Therefore, the creditor does not have an independent, standalone right to detain the ship or cargo.
The main provisions governing the detention of a vessel or cargo by the port authority are as follows:
- The subject of the detention may be a vessel or the cargo on board. A vessel or cargo under detention cannot be moved.
- Only a maritime claim brought by the concerned party may serve as grounds for detention, provided that the claim relates to:
- general average, salvage, the contract of carriage of the cargo, ship collision or another tort;
- damage to port facilities, other property or navigation equipment at the port; or
- a violation of Ukrainian environmental law.
- A maritime claim may be brought, depending on the type of claim, by the affected legal entity or individual, the port authority or a public environmental protection authority.
- The right to detain the vessel or cargo is vested in the harbour master of the sea port.
In addition, the harbour master has the right to detain vessels that pose a threat to navigation or the environment until the relevant infringements of ship safety regulations have been corrected.
The harbour master’s order to detain a vessel or cargo for maritime claims is valid for three consecutive days. Unless the local court of general or commercial jurisdiction or the Maritime Arbitration Commission makes an award permitting the arrest of the vessel or cargo within this period, the harbour master’s order is subject to immediate dismissal. The vessel may be released from detention before the three-day period expires, subject to the shipowner’s or cargo owner’s provision of sufficient security for the maritime claim.
In most cases, the party seeking to detain the vessel or cargo must simply file an application to the port authority declaring the existence of any of the above-mentioned maritime claims, together with supporting documents. This party will be held liable for any damage caused by unreasonable detention of the vessel or cargo.
The construction of the legal provisions regarding the detention of vessels and cargo is not perfect, which sometimes leads to confusion between these provisions and those on the arrest of ships stipulated in the Brussels Convention. Regardless of this, such a detention must be limited to claims regarding salvage, collision or tort obligations.