Unlawful arrest of a ship under foreign flag in Ukraine (Article is dedicated to Professor Dodin E.V.)

Abstract

The article is focused on problems of arrest and detention of foreign ships in the ports of Ukraine. The arrest of a ship is not the same as the arrest of usual property, therefore, the authors note that the maritime legislation of Ukraine should be supplemented by an independent act containing procedural rules by which the procedure for examining cases of arrest of foreign ships by the judicial authorities of Ukraine would be determined for the so-called. “Marine claims”. Nowadays the world is practicing arrest of the ship for its direct debts “in rem”. However in our country the arrest can only be made if it’s legal or individual property. And risk of the lawyers who represent the claimant’s interest in relation to maritime claims is very high because the company indicated in the statement of claim and the petition for the arrest as the owner of the vessel may actually be either an operator or mortgagee or any other offshore company headed by one and the same person. The authors submit, that Ukrainian legislation has such gaps and imperfections about the mechanism of arrest, first of all, foreign sea vessels, that some law enforcement agencies have the opportunity to return to practice more than twenty years ago when prosecutors and tax police officers tried to arrest property in criminal proceedings in order to provide material evidence. In order to represent such gaps, the authors give and analyze the Kyiv Appeal Court’s decision. It was noted that due to this decision finally the final point was put in the collision of the legislation of Ukraine, the counteraction to the illegal arrest of a foreign vessel in criminal prosecution was made, a legitimate decision was made and our state prevented numerous negative consequences and losses abroad. At the same time, unfortunately, there is completely probable possibility that Ukraine may be required to pay all material losses during the month of finding a foreign ship under unlawful arrest with crew and cargo or by a decision of the Ukrainian or the European Court.