Arrest of a yacht in a Croatian court for the purpose of securing a marina operator’s claim
Author: Dr. Adriana Vincenca Padovan
Key words: arrest, yacht, marina operator, maritime claim, berthing fee, yacht repair, yacht maintenance
The paper deals with the legal complexities related to the possibilities of arrest of yachts in Croatian courts for the purpose of securing the marina operators’ claims, such as the claims for the outstanding berthing fees, supplies (electricity, water, fuel), waste disposal, repairs, maintenance and similar marina operator’s services supplied to the owners and operators of yachts berthed in the marinas and other nautical tourism ports. The author examines the practice of the commercial courts in Croatia regarding the arrest of yachts and analyses the relevant positive law governing the matters related to the interim measures on yachts and ships for the purpose of securing and eventually enforcing the marina operators’ claims. In particular, the author seeks to answer the question whether the marina operators’ claims can be treated as maritime claims under the Croatian Maritime Code and/or the International Convention Relating to the Arrest of Sea-Going Ships of
1952 which Croatia is a party to. Furthermore, certain relevance is given to the possibility of subsuming the marina operators’ claims under the provisions of the Croatian Maritime Code relating to maritime privileges. In order to examine the correct interpretation of the relevant legislative and conventional provisions the author takes into consideration their background and development, in particular keeping in mind the fact that the provisions on maritime privileges and the arrest of vessels in the Croatian Maritime Code are inspired by the provisions of the International Convention on Maritime Liens and Mortgages 1993 and the Arrest Convention 1952. Through critical analysis of the relevant court practice and the applicable law, the author seeks to make certain de lege ferenda proposals reflecting the interest of protecting the marina operator’s position as a claimant and considering Croatia’s strategic orientation towards nautical tourism.
The subject matter of this research becomes ever more important in the light of the Croatia’s orientation towards further development of nautical tourism and the planned increase in the capacity of nautical berths.
Furthermore, it is necessary to look into the related issues of the governing law and jurisdiction, which additionally complicates the answers to the questions analysed herein.
With a view of a better argumentation and the well based de lege ferenda proposals, the author gives a short overview of the relevant legislative solutions found in comparative law, as well as in the 1999 Arrest Convention.
The marina operators’ position today receives the general economic importance and it deserves a special interest from different perspectives. This paper focuses on one very narrow and specific aspect of this position. It analyses and wishes to clarify the legal problems that the marina operators encounter when trying to enforce their claims by arresting the vessel in respect of which those claims arose. It is practically the most attractive and potentially most effective manner of their claim enforcement. In relation thereto, it is worrying to see the extent of the legal uncertainty surrounding the subject. This paper tries to contribute to the higher level of legal certainty and especially to the uniformity of the relevant domestic judicial practice.
