Adv. Vladimir Vladimirov: The Convention on the Seal of Seafarers is controversial and has been adopted by a limited number of countries
The legal regulation of Danube shipping and maritime navigation has a unified codification (Code of Commercial Shipping - CCC). In our country, since 1954, the Maritime Navigation Decree (UCT), applicable only to river shipping since 1971, is in effect. The reality is that there is a dual legal regime for the regulation of inland navigation - CCT and UTC. Due to the peculiarities of the international legal status of the Danube, on the one hand, and the international maritime shipping regime, on the other, this "unity" of the regulation in the CCP is difficult to justify.
It would be strange for a river-sea vessel to be arrested in Bulgaria not under the same regime because, for example, in a single voyage this vessel may be in a sea port or in a river port. The Convention on the Seafarer's Arrest is controversial and has been adopted by a limited number of countries.
The arrest of ships in Bulgarian maritime ports is already fully subject to the material grounds set out in the International Convention on the Arrest of Ships, 1999, whose (perhaps only) dignity consists in defining of the term "maritime claim". The detention of ships in the Bulgarian sea ports is allowed only for the purpose of securing a lodged or future maritime claim. Applying the Convention, our judges will recognize that arrest of ships in our nautical ports is not allowed to execute (exequatur) a court or arbitration judgment or any other act of enforcement - Art. 1 para. 2 of the Convention. This condition raises questions of procedural, including judiciary-enforcement, since the Bulgarian Civil Procedure Code (CPC) does not distinguish between the status of the items which are or may be subject to judicial enforcement depending on their whereabouts. This is also the case when the relevant mandatory provisions of European Union law will apply. The definition and scope of the maritime claim are detailed and exhaustively described in Art. 1 of the Convention to which it refers Art. 364a of the CCP. The procedural order in which the ship is detained is the order fixed in the Code of Civil Procedure, whereby the court imposes a precautionary measure to "detention" of the ship on its location in the appropriate port of call. In the case of securing a future maritime claim, the District Court is the place where the ship is located (the Black Sea port in which it is located), and this presupposes the specialization of the judicial panels in these courts. In the case of securing an already seized maritime claim, all first instance or adjudicatory courts in the country before which the action is brought will be competent. When the sea claim is brought or will be brought before an arbitral tribunal in Bulgaria, on the grounds of Art. 9 of the International Commercial Arbitration Law (LCAA), the provisioning should be requested by the respective party in the arbitration case by the district court at the port's location where the court will apply the procedural order of Part IV of the CCP and the material rules of the International Convention on Arrest of Ships, 1999. The particular case will be that the court will assess the "maritime" character of the establishments or the pending legal action before the arbitration in the aspect of Art. 1 of the Convention. Such an assessment of the maritime nature of the claim in the case of a ship's arrest in river ports will not be explicitly necessary, but it will only be considered if the claim falls within the scope of Art. 365 par. 1 of the CCP, which, albeit almost similar, does not coincide entirely with the scope of the maritime claim under Art. 1 of the Convention.
With some verdict and doubt about precision, the Convention (Article 3) introduces restrictions in the arrest warrant of a ship in a seaport. These respondents can only be:
❖ The shipowner at the time of the maritime claim (should be assumed to be the right to claim) if the owner is responsible for it and if the owner of the ship is the owner of the detention.
❖ The ship's Bear-Boat charter at the time of the maritime claim if this Bear-Boat Charger is responsible for him and if at the time of the arrest he was still a Bare-Boat Charger. In modern commercial shipping, this condition is often difficult to prove by the claimant, as it is the practice of the Bourdon charter to give the ship a charter to another person - a charter charter.
❖ Persons in charge of a maritime claim based on mortgage or other real weight on the ship. Is it possible that these persons are not owners or shipowners / owners but, in relation to bonding, have a moral mortgage to secure their non-maritime obligations? The Convention does not answer this question. An expanded interpretation should not be applicable.
❖ Persons in charge of a maritime claim relating to the right of ownership or possession of the ship.
❖ The owner, Bear-Boat charter or operator (including shipowners) within the meaning of the definition in Article 9 (3) of the CCP - ie persons who operate on their own behalf or use the ship irrespective of whether they are the owners ) when the maritime claim is secured by the so-called sea bet.
It is worth noting that the sea pledge as a concept is not defined in Bulgarian law. In the case of a conservative interpretation of this rule, persons such as the operator, the manager, the charter and the time charter can not be passively legitimized in a precautionary procedure for arresting a ship in a seaport if the maritime claim is not secured, through the so-called sea bet. This issue, arising from the unfortunate revision (or translation) of the Convention, will become a ground for contradictory court practice. The original text of the Convention uses the concept of maritime lien, which is given in the Bulgarian text as a "sea bet". This concept with many conventions approximates by analogy to the pledge right to hold a property to / to satisfy a contracted claim and has similarities with the right of detention under Art. 91 of the Obligations and Contracts Act (CPA). However, as the term "sea bets" does not have a legal definition in Bulgarian law, there will be risks of issuing contradictory court acts - especially when a vessel is being arrested in a maritime action against shipowners outside the shipowners' -booth charterers. Complications will also arise from the fact that court acts on arrests of ships are not subject to cassation control.
❖ The owner or charterer of the ship who was the owner or bayboat charterer and of another ship in respect of which the maritime claim has arisen (excluding maritime claims for ownership or influence on the ship).
❖ Person (without shipowner) responsible for the maritime claim provided that under Bulgarian law enforcement is possible in connection with this maritime claim through legal or enforced sale to the ship. In this regard, the rules on the execution of the sale and sale of movable property (Articles 450-452, Articles 465-482 of the CCP) should also apply to the ship in so far as the performance is related to a proper performance title, resulting from the ruling on the maritime claim.
The application of Art. (3) of the Convention requires special assessments of passive legitimation, which obliges potential applicants for maritime claims to be able to produce compelling written evidence in support of the claim (Article 391 (1) (1) of the CCP) , as well as evidence of the nature of the claim of the seafarer, but also of its probable merit, of the impossibility or difficulty of exercising the rights in the future judgment, the precautionary need, the adequacy of the requested precautionary measure, and evidence of 3 of the Convention. Obviously, a greater procedural effort will be required from the plaintiffs and more circumstances subject to proof and judgment by the court.
The master of a port (sea or river) may prohibit the departure of a ship (which in practice constitutes detention of the ship) or to keep a cargo in the port at the request of a body of the executive or the judiciary to secure the collection of outstanding state receivables. Here it is necessary to clarify whether, at the request of these authorities, it is possible to withhold cargo on board. Strict interpretation of Art. Article 364 of the CCC does not allow this possibility - at least because of the prohibition of broad interpretation of restrictive legal rules. For comparison - under Art. 365 of the CCP in the amendment to the CCP (SG 109,201) it was possible at the request of interested persons (traders) through the IA Maritime Administration to keep ships and cargo (including the of the ship) within 72 hours if the detention is not confirmed by the court until then. This definitely more favorable regime has remained in the past and this greatly restricts the protection of merchants using maritime transport - for example in the case of cereal exports, when it is debatable whether the weight of the cargo is true in the bill of lading. It is common practice that disputes arise due to differences in shore scale readings and ship-to-ship readings, given that the second indications are commonly used for the issue of commodities and for the purposes of commercial contracts. The drop in the possibility of "private" cargo retention in seaports is a retreat in the protection of the interests of the Bulgarian export-oriented business.
The arrest of ships in Bulgarian river ports has a different regime compared to the arrest of ships in seaports. The differences arise in the fact that on the river, the claim secured by arrest should not be judged by the court as meeting the requirements of the Convention, but only if it is within the scope of those claims referred to in Art. 365 of the CCP (although they are similar to or closely coincident with those of Article 1 of the Convention which do not apply to ships in river ports). For example, according to the Convention, containers are "ship equipment" (so under Article 1 (b) "L" of the Convention). The purpose of this paper is not to determine the legal status of containers in water transport and whether it is different in river and sea transport. However, Art. 365, para. 1, item 1, b. "E" of the CCP does not allow the arrest of a ship in a river port in connection with a dispute over the supply of containers, unlike this option in the sea ports. The cases of ship arrest in river ports are limited in the case of pollution - for example, with regard to future preventive costs of limiting or eliminating environmental pollution, as well as with respect to the powers of third parties disadvantaged persons.
The main difference between the arrest of a ship in a river port and the ship's naval arrest is that in a river arrest the court is not formally obliged to assess the defendant's status in the light of the requirements of Art. 3 of the Convention on the Arrest of Ships on Passive Litigation. The court will have to determine whether the secured claim falls into the list of claims under Art. 365 CCC and then proceed to check the existence of the prerequisites for admission of the collateral provided for in the CCP. This difference leads to some imbalance in the regulation of the arrest depending on the location of the ship. The arrest of ships in river ports seems to be enjoying a slightly more relaxed regime.
Ground for verification
According to the norm of Art. 365 of the CCP as amended prior to the amendments of the CCP with State Gazette, issue no. 19 of 2014 allowed the possibility of cargo retention at the request of interested traders. In the meantime, this opportunity is only a privilege for the executive or judiciary authorities to secure the collection of state receivables. The systematic place of reg- istration of cargo holdings in ports in the text of the norm of Art. 364 of the Code of Civil Procedure, entitled 'Prohibition of sailing on a ship'. The State (Maritime) Administration is empowered at the request of the executive authorities without any judicial sanction to hold cargoes in a port (sea or river), to collect state receivables from any one- without the need to establish a link between the cargo, the behavior of the shipowner and the merits and origin of the claim. Perhaps there is a reason to verify the compliance of this rule with the Constitution and the norms of European Union law.