Facts: The Federal State-Owned Enterprise “Border Administration of the Federal Security Service of the Russian Federation for the Primorsky Region” (hereinafter referred to as the BA of the FSB of Russia for the Primorsky Region) applied to the Commercial (“Arbitrazh”) Court of the Primorsky Region with a claim against the Korea Surim Trading Corporation about recovery in favor of the Russian Federation of damage caused to aquatic biological resources in the amount of 3,204,300 rubles.

At the same time, the BA of the FSB of Russia in the Primorsky Region filed a motion for interim measures in the form of arrest of the ship “Kal Ma 2”, registration number 3207817, home port – Chongjin, call sign – HMYX, owner – trading company “Surim” (“Korea Surim Trading Co”) in the form of a ban on leaving the port of Nakhodka, Primorsky Region.

Ruling of the courts: Commercial (“Arbitrazh”) Court of Primorsky Region: granted the petition, and the vessel was arrested on September 16, 2020.

5th Commercial (“Arbitrazh”) Appellate Court in the course of the proceedings, the appellate court concluded that the court of first instance had incorrectly applied the substantive law, namely the rules on the arrest of ships and the maritime claims, and that the circumstances of the case had not been fully analysed. So, the 5th Commercial (“Arbitrazh”) Appelate Court analysed the provisions of the Merchant Shipping Code of the RF on the arrest of ships in conjunction with the norms of the Commercial (“Arbitrazh”) Procedure Code of the RF on interim measures, and also interpreted the provisions of the International Convention for the Unification of Certain Rules Relating to Arrest of Sea-going Ships of 1952. As a result of the analysis, the court came to the conclusion that the claim for the recovery of damage caused to aquatic biological resources is not a maritime claim within the meaning of Article 389 of the Merchant Shipping Code of the RF. Moreover, the claimant has not proved that this vessel is the only property of the respondent on the territory of the Russian Federation, and also that without taking this interim measure, the judicial act will not be possible to execute. Also, the court of first instance not only imposed an arrest in the form of a ban on the exit of the disputed ship from the port of Nakhodka, but also an arrest on the ship itself, which was not stated by the claimant in its motion.

Commercial (“Arbitrazh”) Court of the Far-Eastern District upheld the ruling of the 5th Commercial (“Arbitrazh”) Appelate Court, devoting even more time to the interpretation of the provisions of the 1952 Arrest Convention and their application in the case at hand.

Commentary: This case is interesting for several reasons. Firstly, the very fact that the claim for the arrest of the ship as an interim measure was considered by the courts of three instances is very outstanding. As a rule, these cases are resolved in the first instance due to the urgent nature of the interim measures. In this case, the consideration of the case in the appellate instance was logical, since the breach of the rules of law was obvious. However, the path of such a case all the way to the cassation instance is really a single example.

Secondly, the courts of appeal and cassation have correctly and in sufficient detail studied the provisions of the international treaty of the Russian Federation in conjunction with the rules of national legislation, which, of course, is a positive vector in the application of the provisions on arrests of vessels.

Thirdly, in this case, despite the participation of the state in the person of the claimant and a foreign company in the person of the respondent, which often has a pre-understandable scenario for the development of the situation, the law was at the forefront, and the initial incorrect decision was canceled. ■