Author: mr. Eric van der Plank
WILLEMSTAD - The laws in the jurisdictions of the Dutch Caribbean islands are similar to that of the Netherlands with regards to the arrest of a vessel. As is the case in the Netherlands the courts of the Dutch Caribbean islands are very lenient in granting permission for the arrest of a vessel. For permission to arrest a vessel prima facie evidence of the claim on the vessel or on the shipowner (and/or under certain circumstances the charterer) will generally suffice.
Furthermore, if a vessel is expected to enter the territorial waters of one of the Dutch Caribbean islands, the court can grant permission to arrest the vessel even before the vessel has entered the jurisdiction of the concerning Dutch Caribbean island.
The arrest of a vessel can generally be affected within days. After drafting the petition for an arrest and receiving permission for the arrest from the court, the bailiff can proceed to place the arrest on the vessel when it has entered the jurisdiction of the relevant Dutch Caribbean island.
It is important to note that the drawback of a low threshold, for placing an arrest on a vessel in the jurisdictions of the Dutch Caribbean islands, is that if the claim for which an arrest is made is without merit or is unenforceable, this can establish the unlawfulness of the arrest. In case of an unlawful arrest, the arrestee can claim damages.
With that in mind, before a petition for an arrest of a vessel is drafted, it is important to know whether an arrest may be placed on a vessel for that claim. In other words whether the claim gives a right of recovery.
Also, when considering an enforced sale of a vessel following its arrest it is relevant to assess whether the claim is a preferential claim (such as a maritime lien). Nonetheless, even if a claim is not considered as a preferential claim, the arrest of a vessel can under certain circumstances prove an effective tool for a shipowner and/or charterer to comply with his financial obligations.
The first step in establishing whether a claim gives a right of recovery from the vessel and whether the claim is considered a preferential claim is to determine the applicable law.
All the Dutch Caribbean islands have ratified the (Brussels) 1952 Arrest Convention. Thus, if the targeted vessel sails under the flag of a Contracting State the provisions of the Convention are applicable.
If the Convention is not applicable, the rules of international private law of the Dutch Caribbean islands will apply. The rules of international private law of the Dutch Caribbean islands point to both the lex causae, i.e. the law governing the claim and the lex registrationis, i.e. the law of the place where the vessel is registered.
Furthermore, the claim would have to “fit” within the legal system of recovery rights as laid down in the Civil Code of the Dutch Caribbean islands.
With extensive experience in ship arrests our offices are more than capable in assisting with either the arrest of a vessel or in assisting with the release of an arrested vessel in the jurisdictions of all of the Dutch Caribbean islands.
The information contained in this article is for informational purposes only and should not be considered legal advice. You should not act upon this information without consulting our legal representatives.