Israel
Answer ... The Israeli Maritime Court was established during the British mandate over Palestine-Israel, which took place formally between 1922 and 1948 and in practice from 1917 until 1948. By a king’s order in council dated 2 February 1937, the Supreme Court of Jerusalem was constituted as a maritime court under the Colonial Court Admiralty Act, 1890. On the date on which the Colonial Court Admiralty Act was enacted, the relevant acts of admiralty in force were the Admiralty Acts of 1840 and 1861 and the Naval Prize Act of 1864. These continue to apply to the jurisdiction of the Haifa Maritime Court, a division of the Haifa District Court, which was granted the maritime jurisdiction previously held by the Supreme Court.
In addition, when enacting the Shipping Law (Sea-going Vessels), 1960, the Israeli legislature chose to follow the Brussels International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages 1926 in relation to the maritime lien. Accordingly, there are two set of rules governing the Israeli Maritime Court:
- the English Admiralty Acts of 1840 and 1861; and
- the Israeli Shipping Law (Sea-going Vessels), 1960, which follows the 1926 Brussels Convention.
Israel
Answer ... See question 7.3.
Israel
Answer ... According to Clauses 40–41(1)–(8) of the Shipping Law (Sea-going Vessels), 1960, recognised maritime liens include the following, among others:
- the costs of the sale of an arrested vessel by court auction;
- port dues of all kinds and other payments for port services, insofar as these are due to the state, another state or authority, or have been paid to such bodies by a third party;
- the cost of the preservation of an arrested vessel (from the date of its entry to the port until its sale by the court);
- wages;
- salvage;
- compensation for death of, or injury to, passengers;
- compensation for damage caused as a result of a collision at sea or any other navigation accident, or for damage done by a vessel to port facilities, and indemnities for loss of or damage to cargo or to passengers’ baggage; and
- payments due for the supply of necessaries.
Under Israeli law, a vessel can be arrested to enforce either recognised liens or a mortgage. The law does not allow for the arrest of a vessel to enforce a maritime claim; but on the other hand, Israeli law provides for a wide range of recognised maritime liens.
Israel
Answer ... Israel is not a party to either the Brussels International Convention Relating to Arrest at Sea 1952 or the Geneva International Convention on the Arrest of Ships 1999. In M/V Huriye Ana (2017), the Haifa Maritime Court held that it has no authority to order the arrest of a sister ship.
In M/V Osogovo (2021), in denying a supplier’s arrest application for necessaries supplied to sister ships of the relevant vessel, the Haifa Maritime Court acknowledged the possibility that in certain cases it might be possible to extend, under judicial legislation, (meaning courts' case law which add and/or interpret the wording of the acts of legislation) the causes for arrest and to include the possibility of arresting a sister ship. However, the court did not engage in an in-depth discussion of the possibility of developing the maritime law in this way.
In our opinion, it might be possible to apply for the arrest of a sister ship under the principle of piercing the corporate veil. However, this would apply only in circumstances where the piercing of the corporate veil would be justified, and provided that the arrest application includes at least prima facie evidence in this regard.
Israel
Answer ... Under Clause 53 of the Shipping Act (Vessels) 1960, the provisions of Part IV of the act on maritime liens “will apply, also on a vessel which is operated by a charterer or other person which is not is owner”. In practice, the Haifa Maritime Court requires personal liability of the owners as a condition for enforcing a maritime lien.
In M/V Ellen Hudig (2004), the Maritime Court denied a maritime lien for “indemnities for loss or damage to baggage”, holding that the alleged damages – additional expenses and freight payments relating to the discharge of the claimants’ cargo from an arrested vessel as a result of the vessel’s arrest by the crew claiming unpaid wages, and the owners’ subsequent appearance before a Belgian court under bankruptcy proceedings – did not fall under the owners’ personal liability.
Ever since, Ellen Hudig has been cited by the Haifa Maritime Court as authority establishing the need to show the owners’ liability in order to have the court recognise a maritime lien. In M/V Emmanuel Tomasos (2004), a bunker supplier’s claim was denied on the grounds that only the contractual supplier which contracts with the owners can be a creditor under the necessaries lien. In M/V Nissos Rodos (2016), it was held that a local agent which was nominated by the operator of the vessel and which paid the port dues for 17 calls of the vessel at Haifa Port was not entitled to a maritime lien for “port dues of any kind… paid by a third party”, on the grounds that the agent had no agreement with the owners and there was no personal liability on behalf of the owners to pay the agent, as commercial relations were between the owner and the operator and the operator and the agent, but not directly between the agent and the owner.
In M/V Captain Hurry (2016), while dismissing a supplier’s claim due to lack of the owners’ liability, the Haifa Maritime Court stated that the various types of maritime liens differ from each other; and that, for example, a maritime lien for salvage exists even if the owners are not liable for the circumstances which led the vessel to distress.
Thus, while diverse paths to fulfilment of the requirement of owners’ liability might exist in theory, in practice it would seem that arresting a chartered or bareboat chartered vessel would require the owners’ liability to the claimed debt itself – especially if the arrest is under a necessaries lien. The mere fact that the vessel is chartered at the date of arrest will not prevent its arrest, as long as the recognised lien exists.
Israel
Answer ... The main documents required to arrest a vessel are documents establishing the existence of the maritime lien. For example, to arrest a vessel for unpaid bunkers, documents such as the following should be presented:
- the purchase order;
- the delivery note;
- the invoice; and
- interest calculations.
The claim in rem and arrest application are filed electronically with the court, and usually the arrest application is attended to by the maritime court within a few hours. If the application is filed during the weekend, a judge of the Haifa Maritime Court can be approached though the court clerk.
The Haifa Maritime Court has continuously held that there is usually no justification to impose procedural thresholds on creditors seeking enforcement of their maritime liens, and this will be done only in exceptional occasions. For example, where the validity of the documents establishing the lien is doubted or where the owners’ liability in a claim to enforce a necessaries lien is questioned, the claimant will be required to deposit countersecurity for the arrest. Also, the nature and ranking of the lien will be considered.
In MV Captain Hurry, a deposit of $12,500 was required as countersecurity for an arrest securing a claim of $315,763 for bunker delivery, which was ultimately denied.
Courts fee costs are 1.25% of the claimed amount and the costs of serving the claim and arrest documents are about $500 to $1,000, depending on whether a launch boat service is required. Court fees, attorneys’ fees and service costs are all claimable under the claim in rem and arrest application.
Israel
Answer ... A vessel can be released by providing a security – either a respected protection and indemnity club’s letter of undertaking or the deposit of the claimed amount or an Israeli bank guarantee – with the court treasury. The security amount will be the amount ordered in the arrest order. The owners can also challenge the arrest application itself and/or the arrest amount. Following the deposit of the security, the release of the vessel is almost immediate.
Israel
Answer ... There is no leading authority on the matter of wrongful arrest. Under general civil law, a party seeking temporary relief (eg, a lien or a restraining order) might be liable in tort or further to a commitment under court order to compensate the other party for damages if the temporary relief is cancelled and the party seeking arrest acted unreasonably or maliciously (Civil Appeal 732/80, Arens v Bait-El). When deciding on an application or claim for damages for wrongful arrest, the Haifa Maritime Court will follow the Evangelismos tests of 1858 as interpreted by the Court of Appeal of Singapore in M/V Vasiliy Golovnin (2008).
Israel
Answer ... According to Clause 54 of the Shipping Act (Vessels) 1960, the builder or repairer of a vessel is entitled to hold the vessel until the amounts due to it are paid (possessory lien).
Theoretically, a vessel can also be attached as immediate security relief under a regular civil claim (either filed before a civil court or in arbitration). However, ordering such an attachment would require the deposit of security on behalf of the claimant; and considering the daily costs of detaining a vessel, it seems that attaching a vessel to secure a regular civil claim (as opposed to arresting a vessel to enforce a recognised maritime lien) would not be practical.