Facts: in February 2021, mv “APRIL” flying the Panama flag was sailing from Russia to Turkey with a cargo of ferrosicilium (an alloy of iron and cream, reacts chemically when in contact with water).

During the voyage in the area of the seaport Kavkaz, six crew members were poisoned with an unknown substance, one crew member died. The vessel anchored in the area of the port of Kavkaz. Thanks to the actions of the Marine Rescue Service, the crew members were moved to the shore and transferred to the ambulance brigade.

In absence of the crew the vessel began to shift spontaneously to starboard, there was a risk of capsizing and further sinking of the vessel. In this regard, the Marine Rescue Service took measures to combat the survivability of the dangerous vessel, measures to maintain its floating and ensure safe anchorage, along with the organization of a possible urgent emergency towing of the vessel from deep water to a sandbank. Based on the results of the diving survey and a number of measures taken in relation to the vessel (including repeated pumping of seawater), the danger of the vessel sinking was eliminated.

Assuming that it had a maritime claim in the amount of 200,000 US dollars and in view of the refusal of the shipowner and the master of the vessel to sign the salvage agreement, the act of completion of the salvage operation and voluntary satisfaction of the claim or presentation of guarantees of payment of the claim in mid-March, the Marine Rescue Service applied to the Commercial Court of the Krasnodar Region with a request to provide the preliminary interim measures in the form of the arrest of the mv “April”.

Ruling of the court: the Commercial Court of the Krasnodarskiy Region satisfied the application of the Marine Rescue Service and issued a writ of execution. The court decided to arrest the vessel, and prohibit the captain of the seaport Kavkaz from issuing permission for the vessel to move from the anchorage.

Almost a month later, the court in the same composition of the judge Kondratov accepted for consideration the statement of claim filed by the Marine Rescue Service against April Shipping Company.

Commentary: the content of the motivational part of the judicial act, which, for some unknown reason, first analyzes the maritime claims in connection with the payment of disbursement costs, is puzzling.

The reason for indicating disbursement expenses may be not only the special qualification of the maritime claim by the court (as well as a banal mistake), but also the wording that “migrated” from the application for taking preliminary interim measures. However, in any of these cases, the attribution of independent maritime requirements arising from towing, pilotage and supply of the ship with cargo or materials for the purpose of operating or maintaining is very difficult to attribute to disbursement costs (even if we ignore the actual circumstances of the case and the emergency state of the ship).

Moreover, the Convention for the unification of certain rules relating to the arrest of sea-going ships, 1952, allocates disbursement costs as an independent maritime claim, formulating it as disbursement costs incurred by the master on behalf of the ship or its owner, including disbursement costs incurred by consignors, charterers or agents. In turn, the Merchant Shipping Code of the Russian Federation does in Article 389 indicate such an independent maritime claim as disbursement costs incurred in relation to the vessel. However, its nature seems to be absolutely different.

Without setting ourselves here the task of giving a detailed analysis of the correlation of these maritime claims, it nevertheless seems that under the given circumstances it should be qualified as maritime claim arising from a rescue operation or any salvage agreement. At the same time, the presence or absence of a signed salvage agreement or an act on the completion of the salvage operation cannot matter here, since the absence of a contractual relationship on the salvage of the ship between the claimant and the respondent normally cannot be the basis for exempting the respondent from payment for the successful salvage operation expressed in saving the respondent’s property.

It is possible that by formulating the maritime claim as disbursement expenses, the applicant was thereby trying to avoid the risks associated with the refusal to qualify his actions as a maritime claim for salvage, namely, in the absence of signs indicating the salvage nature of the operation. Although in this case, doubts can hardly arise.

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It is interesting to note that it is almost the first time in judicial practice that it occurs in this case, the court accepted such a document as a classification certificate as one of the documents confirming not just the status of the shipowner, but the registered owner of the vessel. The registration certificate mentioned in the judicial act, given that it was submitted by the master of the Taganrog seaport, is probably a copy of the certificate of ownership of the ship. The Taganrog seaport was the last port of call of the mv “APRIL”, while the certificate of ownership of the vessel is one of the documents submitted for calling the seaport.

It is worth noting that most often the courts in such cases present a strict enough standard of proof, requiring applicants to submit an extract from the relevant ship register confirming the ownership of the ship. However, it is not uncommon for the courts to allow the arrest of a vessel on the basis of information from unofficial open public sources. In the latter cases, this approach may be influenced by the resonance of the case and the protection of public interests. Not the least important is the fact that the adoption of interim measures requires a minimum amount of evidence (both in quantity and in their “quality”) due to the urgent nature of such measures.

Unfortunately, such a heterogeneous approach cannot have a positive effect on the uniformity of judicial practice, and, as a result, on the effectiveness of the mechanism for the arrest of courts from applicants point of view. It is rather difficult to find a balance of approach to the problem, taking into account the possible features and circumstances of specific incidents that entail the need to arrest the vessel.

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Of particular interest is the question of the location of the vessel at the time of taking interim measures. A well-known feature of the arrest of sea vessels in the practice of Russian vessels is the confirmation of the location of the vessel on the territory of the Russian Federation. Most often, the courts understand this requirement as the need to confirm the location of the vessel not just in the territory of the Russian Federation, but in the territory of the seaport where the vessel will be detained. This approach is difficult to accept and clearly hinders the effectiveness of interim measures.

It seems that the evidence of the vessel’s location at the time of the statement of arrest on the territory of the Russian Federation should be sufficient regardless of its stay outside the port or her movement, for example, towards the port or in the direction from the Russian port abroad.

In the case under consideration, the court accepted the documents of the AIS and the report on the emergency from the Main Marine Rescue Coordination Center as evidence of the location of the vessel.

From these documents follows the proof of the geographic location of the vessel, but not its location in the seaport. However, judging by the coordinates of the location of the vessel, it refers to the anchorage within the territory of the seaport. Usually, as proof of the location of the vessel, Russian courts accept certificates issued by the master of the corresponding port on the current location of the vessel in the territory of such a seaport.

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Some contradiction is found in the judicial act, which argues that the fact of the alleged execution outside the Russian Federation of the judicial act, the execution of which is ensured by the above measures, is not a sufficient basis for the adoption of interim measures.

At the same time, apparently, the only reason (at least mentioned in the judicial act) was the argument of the Marine Rescue Service that the defendant is registered in a foreign state and there is no information about the presence of property on the territory of the Russian Federation, and the ship can enter the jurisdiction where it will be it is impossible to enforce the judgment at the expense of the vessel.

It is hardly possible to say that in the overwhelming Russian judicial practice such arguments are rejected by the courts as not testifying in themselves to the impossibility or difficulty of the execution of the judicial act.

It is also surprising how, in the judicial act, the question of the proportionality of the claim towards the value of the vessel in order to maintain the balance of interests of the parties is bypassed. In practice, the lack of information about the proportionality of the claim, the value of the vessel, the adverse consequences of the arrest, the Russian courts most often refuse to arrest the vessel. In this case, the declared claim for the calculations of the Marine Rescue Service amounted to 200,000 US dollars, while the cost of such a vessel could reach up to 1.5 million US dollars.

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The positioning of the maritime claim against the debtor is also of interest.

The judicial act indicates the claim is filed against the “April Shipping Company” represented by the vessel operator of “April” “Viya Ship Management Company”. This formulation raises questions.

It is worth noting that in the judicial act, the court cited an analysis of evidence of registered property rights, i.e. it is assumed that the claim has been made against the registered owner of the vessel. How and what relation, as well as whether the operator of the vessel is the second or the only respondent, there is no explanation in the judicial act.

So far, the only explanation for this may be the mention in the judicial act of information that “the respondent is registered in a foreign state, his legal address is determined by the address of the vessel operator”. This somewhat strange wording, apparently, indicates that the respondent in some documents indicated the operator’s address as his address for correspondence with third parties, and this information was enough for the court to arrest the vessel (however, the same wording in relation to the respondent(s) migrated to the on the merits case).

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Finally, it is far from a rare violation that occurs in judicial practice, due to the absence in the judicial act on the adoption of preliminary interim measures of information about the established time limit for filing a statement of claim or the establishment of an incorrectly determined time limit by the court.

In the matter under consideration, the court made a reference to the relevant rules of part 5 of Article 99 of the Commercial Procedure Code of the Russian Federation. From the citation of this provision, it is difficult to judge whether the court assesses the stated claim as referring to a mandatory pre-trial procedure or not. We will leave this question out of brackets, at least, in our opinion, the requirement in connection with the salvage of the vessel should be subordinated to the pre-trial procedure.

It is possible that the court considered the pre-trial procedure respected with due to the respondent’s rejection of the “proposal for a prompt pre-trial settlement in the amount of USD 200,000”.

Or, the court could even consider the pre-trial procedure impossible (and, therefore, the filing of a pre-trial claim is meaningless), considering the refusal to sign documents on the salvage operation and the failure to provide security or pay the rescue reward. However, the last two circumstances in judicial practice are rarely regarded as evidence of the observance of the pre-trial claim procedure or the impossibility of settling the dispute peacefully.

In theory, the Marine Rescue Service could overcome such a shortcoming of the judicial act by sending a pre-trial claim to the respondent(s) within fifteen days from the date of the court ruling and filing a statement of claim on such a pre-trial claim within five days from the date of the end of the period established to comply with the mandatory pre-trial procedure.

In any case, in the operative part of the judicial act, the deadline for filing a statement of claim is not established at all, which is undoubtedly a procedural violation. The only question is whether such a violation affects the legality of the arrest of the ship and / or violates the rights of the ship owner.

And if the courts most often do not see procedural violations, entailing the unconditional cancellation in this case of the arrest of the vessel itself (subject to the legality of the arrest in view of respected material and commercial procedure criteria), then the issue of violation of the rights of the shipowner is much more acute. This is due to the fact that the vessel should have been released from arrest due to violation of the time limit established by law / judicial act for filing a statement of claim on the basis of part 8 of Article 99 of the Commercial Procedure Code of the Russian Federation. Moreover, within the meaning of the provisions of part 8 of Article 99 of the Commercial Procedure Code of the Russian Federation, the cancellation of interim measures is carried out not in a declarative manner, but by the court itself.

In any case, the absence of the deadline for filing a statement of claim established in a judicial act entails legal uncertainty and may become the basis for cancellation and / or successful appeal of an interim measure if the statement of claim was not filed at all or was filed with a significant delay.

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Based on the example of the case examined, several short practical conclusions can be drawn.

Conclusion 1: in order to confirm the ownership and/or status of the ship owner, it is reasonable to appeal to the masters of Russian seaports with a request to provide a copy of the certificate of ownership or provide information about who is indicated in such a document as the registered owner. The problem that may arise here is the refusal to provide information to third parties who have no reason to request such information, as well as the time frame for such a response, which formally can reach 30 days. In the case of the mv “April”, “single window” mechanisms may have been involved to reduce time for providing information. In addition, from the moment of the incident to the moment of the arrest of the vessel, enough time had passed to prepare the necessary evidence base.

Confirming the status of a registered owner in this way, of course, is much cheaper, and even maybe faster than requesting an extract from a foreign ship register (depending on the jurisdiction) which additionally should be apostilled in most cases.

Conclusion 2: either by chance, due to the peculiarities of the formulation of the reasoning part of the judicial act, or purposefully, the court accepted documents confirming its geographical coordinates as proof of the location of the vessel, without comparing them with the coordinates of the borders of the seaport of Kavkaz. As a result, it can be assumed that the arrest was not necessarily imposed on the vessel in connection with its presence in the seaport.

Conclusion 3: the formulation of requirements in the application for interim measures is important, even if the court itself must set a time limit for filing a claim / claim when taking interim measures. Since during the formation of a judicial act, the text of the statement can be partially reproduced, the absence of the applicant raising the issue of the time frame for filing a pre-trial claim or a statement of claim may lead to the court ignoring such an issue. The latter, in turn, can lead to the cancellation of the arrest of the vessel in certain circumstances.

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In conclusion, it can be assumed that although the courts most often correctly apply the rules on the arrest of courts, nevertheless, problems with the motivation of such judicial acts arise for a number of reasons. Firstly, this is due to the high overload on the judicial system. Secondly, it is an episodic and non-typical nature of maritime disputes and interim measures associated with them. The latter implies the third – the lack of systematic law enforcement practice, which, along with short periods of consideration of the issue of interim measures, during which, with a high workload, the judge simply does not have time to “dive” into the specifics of the topic, leads, as a rule, to correct judicial acts with incorrect motivation. At the same time, the importance of the motivation of judicial acts should not be underestimated. It should be one of the criteria for the legality of a judicial act. It is the reasoning that is the starting point for the possibility of a person appealing a judicial act and the possibility of canceling or revising the judicial act by a higher instance court.

This situation once again raises the question of the need to create, if not specialized courts, then at least specialized judicial panels. On the other hand, the frequency of occurrence and transfer of maritime claims to courts is not so high that the court system incurs such significant costs.

It is likely that the judicial system is fighting this problem by distributing homogeneous claims and applications to judges with relevant experience. However, using the example of applications for the arrest of vessels, which are quite rare in practice, such a decision may not always bring the desired result.

Returning to the “poisonous” mv “April”, it is worth noting that the cases of emergencies during the sea transportation of ferrosicilium cargo, although not frequent, do occur with a certain episodic frequency. So, in the same Kerch Strait in 2007, on the mv “ODISK”, two sailors died, according to the official version, as a result of phosphine poisoning released when exposed to water vapor, water and ferroalloys transported on board the ship (during the open type of loading there was light rain).

Unfortunately, most likely, this is not the last case with such sad consequences. Shipowners should carefully instruct the crews of vessels involved in carrying dangerous goods to provide adequate ventilation and to have and know how to use gas masks and other precaution measures. And even such measures for the proper handling of the cargo cannot always prevent a tragedy. ■