07 October
2024
Every shipowner and manager, whose ships operate flights to Ukrainian ports, at least once faced the detention of the ship by the port captain. We have not been able to find publicly available ship detention statistics, although, in our opinion, such information should be made public on the website of the Shipping Administration of Ukraine, as it does not belong to confidential or state secret information. However, as evidenced by the practice of the "ANK" seaport, the detention of ships entering one of the six currently operating seaports of Ukraine (Odesa, Chornomorsk, Pivdenny, Izmail, Reni, Ust-Dunaysk) happens quite often. The reason for writing this article was cases of arbitrary interpretation of the provisions of the Code of Merchant Shipping of Ukraine (hereinafter referred to as "MTC of Ukraine") by individual captains of sea ports. Therefore, we propose to put the "dots over the" in the issue of detaining ships based on the orders of seaport captains to reduce the number of misunderstandings in the future.
Maritime claims that entitle the master to detain the vessel
We remind you that the right of the seaport captain to detain a vessel for 72 hours at the request of a person who has a valid maritime claim is provided for in Art. 80 and 81 KTM of Ukraine. At the same time, the definition of the term "maritime claim" is given in Art. 42 of the Criminal Code of Ukraine, which contains 23 (!) types of maritime claims, including claims related to damage to the natural environment (for example, palm oil spills or pollution of the sea with petroleum products), claims related to loss or damage to cargo under time of transportation, requirements related to the death or incapacity of a crew member and others. However, it is worth remembering that Art. 80 of the Code of Criminal Procedure of Ukraine contains a much smaller amount of maritime requirements that give the port captain the right to detain a ship, compared to Art. 42 of the Code of Criminal Procedure of Ukraine, which refers to the issue of arresting ships to ensure maritime claims. For convenience, we propose to divide these maritime requirements into three groups: (a) "environmental" requirements; (b) "hydrotechnical" requirements; (c) "emergency and rescue" requirements. Let's consider them in more detail using examples from practice.
"Environmental" requirements
According to para. 4 h. 1 st. 80 of the Code of Criminal Procedure of Ukraine, a ship or cargo may be detained in a sea port by the port captain until the ship owner or cargo owner sufficiently secures the maritime claim at the maritime claim of the central executive body, which implements the state policy of state supervision (control) in the field of environmental protection, determined violation of environmental protection legislation of Ukraine. Here it is worth reminding that the central body of the executive power, which is mentioned in this rule of the KTM of Ukraine, is the State Environmental Inspection of Ukraine, and therefore, territorial or interregional bodies of DEI (for example, the State Environmental Inspection of the South-Western District (Mykolaiv and Odesa Regions) are not empowered the right to apply to the captains of ships in accordance with Article 80 of the Code of Civil Procedure of Ukraine. Therefore, in such cases, the captains of the ports must refuse to accept such applications, given that they are submitted by an improper (unauthorized) entity.
Secondly, let's figure out what is meant by "violation of environmental protection legislation of Ukraine"? Agree, such a definition is too broad and imprecise, which leaves room for abuse. It is also interesting that in Art. 42 of the Criminal Code of Ukraine, which contains an exhaustive list of maritime requirements that give the right to seize a vessel, "environmental" requirements are formulated differently, namely "a requirement in connection with causing damage to the surrounding natural environment." In our opinion, this is a more successful wording, since the damage always has a monetary expression, but "violation of the law" is generally an evaluative concept, which is fixed by the corresponding protocol on an administrative offense or by entering information into the EDDR, if it is a criminal offense. As practice shows, ships are detained on the basis of "environmental" requirements due to pollution of the territorial waters of Ukraine during cargo operations. It can be pollution of the water area with oil products, palm olein, sewage or garbage. However, the territorial bodies of the DEI, realizing that they do not have the right to demand from the captain the detention of the offending vessel for three days, resort to another method: they quickly draw up a resolution on the administrative offense against the captain of the vessel (according to Article 591 of the Code of Criminal Procedure) and hand over a claim for compensation damage to the shipowner. And after receiving the resolution and the claim, the port captain easily refuses to issue a permit for the ship to leave, referring to clause "c" of Part 2 of Art. 91 of the Criminal Code of Ukraine ("non-payment of established fees, fines and other payments"). In this case, there is no need to detain the ship for three days. This is exactly what happened in the case of the “Theresa Success” port (pollution of the water area of the South port with palm olein on 30.07.2004), in the case of the “Stavanger” port (pollution of the water area of the South port with palm olein on 04/30/2020), in the case of x "Aqua Splendor" (pollution of the water area of the South port by oil products on May 27, 2020) and other similar cases. Therefore, it can be concluded that this norm is currently almost not applied in practice.
"Hydrotechnical" requirements
According to para. 4 h. 1 st. 80 of the Criminal Code of Ukraine, a ship or cargo may be detained in a sea port by the port captain until the ship owner or cargo owner has sufficiently secured the maritime claim of the port due to damage to port facilities, other property and navigation equipment located in the port. This group of claims concerns damage to hydraulic facilities (for example, berths, piers, traverses, breakwaters, other hydraulic structures), navigational equipment (lighthouses, buoys, radar stations, antennas, etc.), as well as other property located in the port. In our opinion, this includes damage to handling equipment (port cranes, loaders), special machinery and equipment involved in carrying out cargo operations in the port. A well-known incident that happened in the Odesa seaport in the early 2000s was the incident with the container ship "CMA CGM AEGEAN", which during mooring operations rammed onto berth No. 2 and also damaged its own fuel tank, resulting in an oil spill in the water area of the Odesa port and far beyond (even the beaches in Luzanivka, which is located on the other side of the Odesa Bay, were polluted). Then the captain of the Odesa Sea Port, Oleksandr Antonov, detained the CMA CGM AEGEAN for 72 hours to meet the requirements of the Odesa Port State Enterprise, and soon a decision of the Maritime District Court of Odesa to arrest the vessel appeared. The applicant for this group of claims is, as a rule, the administration of the relevant seaport or marine terminal whose property was damaged as a result of the incident. Another incident happened on October 22, 2021 in the Black Sea Seaport, when the vessel "HAKSA" during mooring operations attacked berths #17 and #18, as a result of which the berths were damaged, and the vessel was initially detained by the port captain, and soon - arrested by the court to secure the maritime claim of the Chornomorsk Seaport Administration.
"Emergency and rescue" and other requirements
According to Part 1 of Art. 80 of the Criminal Code of Ukraine, a ship or cargo may be detained in a sea port by the port captain until the ship owner or cargo owner sufficiently secures the maritime claim at the request of a person who has a maritime claim based on a general accident, rescue, cargo transportation contract, collision of ships or other damage. As our experience shows, it is this group of requirements that most often becomes the basis for the detention of ships by port masters, and at the same time, it often causes disputes between maritime lawyers about the existence of legal grounds for detention. So, let's consider this group of requirements in more detail.
General accident and rescue
As is well known, a general accident is recognized as damage sustained as a result of deliberate and reasonable extraordinary expenses or donations for the purpose of saving the ship, freight and cargo transported on the ship from the general danger for them. The fact of a general accident is confirmed by a dispatch, which is drawn up by an emergency marine commissioner (dispatcher), and the burden of proving a general accident rests with the person who requests its distribution. An example of a story with a general accident in Ukrainian waters can be the incident with the cargo ship "Azov Viter", which received a hole in the hull while moving in a convoy in icy conditions through the Buzko-Dnipro-Limansk Canal at the end of January 2014, as a result of which there was a risk of the cargo getting wet. and the ship's captain decided to run the ship aground, and the shipowner declared a general disaster. We would like to remind you that the international treaty that regulates the rules for determining the general accident and the costs included in it are the York-Antwerp Rules, first adopted in 1864, and today the 2016 edition of the Rules is in force, although the vast majority of charters still refer to the edition of the Rules 1994.
As for rescue, this institution is regulated by a separate Chapter 6 of the Criminal Code of Ukraine, the provisions of which actually duplicate the contents of the International Convention on Rescue of 1989, which entered into force for Ukraine on June 15, 2018. It will be recalled that the key principle of salvage is the "right to reward", according to which any action with a beneficial result for the rescue of a ship in danger, cargo and other objects on board, as well as for the preservation of freight and payment for transportation of passengers and luggage or other property, as well as the natural environment gives the right to receive a certain reward. The amount of the reward is determined by the agreement of the parties, and in the absence of an agreement - by the court, the commercial court or the Maritime Arbitration Commission. The law (Article 333 of the Criminal Code of Ukraine) establishes ten criteria that are taken into account when determining the reward for rescue (similar criteria are defined in Article 13 of the Rescue Convention). Perhaps the most famous example of "rescue" pierslanded in Ukrainian territorial waters, there is a story about the tanker "DELFI", which drifted for several days in the waters of the Odesa Bay during stormy winds, and the crew did not communicate and refused to help rescuers. As a result, the tanker "DELFI" ran aground on November 22, 2019 near one of the local beaches. True, it was not necessary to detain the ship for 72 hours, because as a result of the incident, it lost its buoyancy and lay on the Odessa beach for 9 months, until it was raised on the third attempt and towed to Chornomorsk.
Cargo transportation contract
As you know, proof of the existence of a cargo transportation contract is a bill of lading, voyage charter or other written evidence (for example, a sea waybill). At the same time, in Art. 42 of the Code of Civil Procedure of Ukraine, the contract of carriage of cargo and the contract of chartering or use of the vessel are specified as separate (independent) maritime requirements. We remind you that according to Art. 133 of the Commercial Code of Ukraine, under the contract of sea transportation of cargo, the carrier or charterer undertakes to transport the cargo entrusted to him by the consignor from the port of departure to the port of destination and hand it over to the person authorized to receive the cargo (consignee), and the consignor or charterer undertakes to pay the established fee for transportation (freight). Charterers and charterers are persons who have entered into a vessel charter agreement (charter). Therefore, although the requirements arising from the vessel charter (charter) contract are not directly provided for in Art. 80 of the Code of Criminal Procedure of Ukraine, in practice, some seaport captains satisfy applications for the detention of vessels submitted by charterers or cargo owners with reference to the voyage charter contract (charter party). According to our observations, there are the most cases of detention of ships on this basis, here are a few recent examples. Thus, on August 19, 2024, the captain of the port of Chornomorsk detained the t/h "BRAVE HEART" at the request of a person who claimed that he suffered losses due to the refusal of the shipowner to submit the ship to the port agreed in the charter, while the shipowner claimed that the charter was not concluded On June 15, 2023, the captain of the Izmail Sea Port detained the RTB-2 vessel on the basis of a maritime claim of a Swiss company, which was based on a contract of sea carriage of cargo. On February 12, 2023, the captain of the Reni Sea Port ordered the vessel "JASMIN QUEEN" to be detained on the basis of the charterer's statement, which claimed that the shipowner unilaterally terminated the charter contract without grounds. On October 26, 2020, the captain of the Izmail Sea Port detained the MAZU vessel based on the statement of the Ukrainian oil and fat plant, which suffered losses due to the shipowner's violation of the terms of the sea transportation contract (flight charter).
Considering applications for the detention of vessels on the basis of Part 1 of Art. 80 of the Criminal Code of Ukraine, in particular, with reference to the shipowner’s non-fulfillment of the charter contract, port captains should carefully check whether the claim is really based on a sea carriage contract (voyage charter), because, as is known, not all charters are carriage contracts (for example, a bareboat contract charter or time charter are not contracts of carriage, and such maritime claims cannot be grounds for detaining a vessel in accordance with Article 80 of the Code of Civil Procedure of Ukraine).
Collision of ships
A recent example from practice is the incident involving the collision of the tow truck "MIRA" with the barge "COSMINA-1" and the pusher vessel "HENIA" in the water area of the Rhenia seaport, which occurred on April 14, 2023. The barge was carrying a load of mineral fertilizers, and as a result of the collision, it lost its buoyancy and seaworthiness and was driven aground with the help of tugs. The very next day, April 15, the captain of the Reni Sea Port issued an order to detain the vessel "MIRA" for 72 hours on the basis of Art. 80 of the KTM of Ukraine at the request of the cargo owner, and already on April 17, 2023, there was a decision to seize the vessel. Another example is the collision of the vessel "NAVITAS", which was moving along the Danube, with the vessel "MAINLAND", which was moored near the berths of the Rhenia fuel terminal, and the hull was damaged as a result of the collision. This accident occurred on February 12, 2023, and already on February 14, 2023, the captain of the Reniya seaport issued an order to detain the vessel in accordance with Art. 80 KTM of Ukraine.
Other damage
In Part 1 of Art. 80 of the Code of Criminal Procedure of Ukraine mentions the possibility of detaining a vessel to secure a maritime claim related to "other damage". This wording can hardly be recognized as correct from the point of view of legal technique, because if desired, almost any situation or emergency maritime event can be "summed up" under it. We will remind that in Art. 42 of the Criminal Code of Ukraine there is no maritime claim related to "other damage", instead, specific cases are mentioned: damage as a result of loss or damage to property (clause 1 of Article 42 of the Criminal Code of Ukraine), damage as a result of loss of life or injury health (paragraph 2 of article 42 of the Criminal Code of Ukraine), causing damage to the surrounding natural environment (paragraph 3 of article 42 of the Criminal Code of UkraineAinys) and so on.
In our opinion, the practical application of this rule is possible in the case of maritime claims of crew members related to injury to health or heirs of seafarers in claims related to the death of a crew member while working on a ship. So, for example, on March 12, 2020, the bulker ship "INA-LOTTE" under the flag of the Cayman Islands was detained by the captain of the port of Chornomorsk for 72 hours based on a statement that the wife and daughter of a Ukrainian sailor, who worked as a captain on another ship, had a maritime claim belonged to the same shipowner.
What should be indicated in orders on the detention of a vessel?
The Code of Criminal Procedure of Ukraine or other laws do not establish clear requisites that must be contained in an order to detain a vessel. In our practice, we have seen extremely "short" orders, without indicating the identity of the applicant, the nature of the requirements, the relevant part of Art. 80 of the Code of Criminal Procedure of Ukraine and the exact time from which the vessel was detained, as well as "detailed" orders with a detailed description of the circumstances of the case and information about the vessel.
In our opinion, the order to detain a vessel must necessarily contain the following information: name, flag and IMO number of the vessel; the location of the vessel (berth, port), information about the applicant of the maritime claim that allows him to be clearly identified, a brief description of the nature of the maritime claim, a reference to the relevant part of Art. 80 of the Code of Civil Procedure of Ukraine indicating the specific maritime requirement, the exact time (day, hours, minutes) from which the 72-hour detention period begins. It is also appropriate to note in the text of the order that if the applicant does not submit a court order on the arrest of the vessel within 72 hours, the detention will be canceled automatically. The presence of such requisites will avoid disputes regarding the specific moment of the expiration of the detention period, as well as give understanding to the shipowner and his agent about the grounds for the detention of the vessel.
When issuing an order to detain a vessel, the port master must carefully check the facts stated in the application (maritime demand) and remember that not every maritime demand listed in Article 42 of the Code of Customs of Ukraine allows the ship to be detained, but the list of requirements defined in Article 80 of the Criminal Code of Ukraine, is much smaller. We believe that the advice and considerations presented in this article will help port masters to be more thoughtful and responsible when dealing with applications for the detention of ships.
Artem Volkov, head of the maritime law practice of the "ANK" Juvenile Law Firm, lawyer
Kostyantyn Moryakov, lawyer of the ANK Law Firm, maritime lawyer