The International Convention on Arrest of Ships, 1999 (ICAS) was ratified by Bulgaria, respectively promulgated and entered into force on 14 September 2011. Even though the Convention became a part of the domestic law pursuant to Art. 5, par. 4 of the Bulgarian Constitution, relevant legislation has been amended in harmonization with it.
According to ICAS, “arrest” is any detention or restriction on removal of a ship by order of a Court to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment or other enforceable instrument. This coercive measure may be imposed solely by the respective competent Court, on commercial ships only and may secure no other than a maritime claim (listed exhaustively in Art. 1, par. 1 of ICAS – torts, disputes with regard to contract, commercial, property, insurance or employment matters, etc.). The arrest may be demanded either in the statement of claim, through a special request for granting a security, or by a preliminary application for the securing of a future claim.
The general rules of the security procedure, prescribed by the Civil Procedure Code (CPC) apply to the arrest of ships. According to CPC, the prerequisites for admission of the security of the claim are the following: if without it the realization of the rights arising from the Court decision would be impossible or complicated for the claimant and if: 1. the claim is supported by convincing written evidence, or 2. a guarantee in the determined by the court amount is presented. According to the Court practice, the guarantee is usually about 8% of the claim price, but given the fact that the seizure of a ship may result in significant expenses and damages for its owner/freighter, this figure may be increased to 20%, even 30%. Apart from this, the owner/freighter of the ship has a claim against the plaintiff for the damages occurred as a result of the bad claim of the latter pursuant to Art. 403 of the CPC.
If the security measure has been approved and the respective guarantee has been deposited, the Court issues a Security Warrant, approving the arrest. When securing a future claim, the Court also prescribes that it shall be brought within a fixed time period or the defendant may apply for the release of the ship or of the bail or other security. This term is usually 1 month, but it may be more, depending on the complexity of the case. A good line of defence in such claims is to request a replacement of the security measure pursuant to Art. 398 of CPC. The Courts of the country in which the arrest was made shall have jurisdiction to determine the respective case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such courts. The respective judicial body shall permit the release of the ship upon sufficient bail or other security being furnished.
The Bulgarian Merchant Shipping Code (MSC) defines “ship arrest” as a security measure, comprising a detention or restriction on removal of a commercial ship for the purpose of securing existing or future maritime claim. Despite the slight difference from the definition given by ICAS, this concept of ship arrest in the Bulgarian legislation is identical.
According to Art. 364a of MSC, a commercial ship, which is located at a Bulgarian sea port, regardless of its flag, may be arrested only for the purpose of securing a maritime claim (within the meaning of Art. 1, par. 1 of ICAS). The arrest and release are executed as a fulfilment of a Court Order by the captain of the port in which the ship is located. The arrest and release are ordered pursuant to ICAS by the first instance or Appellate Court that hears the case or by the Provincial Court at the location of the ship when securing a future maritime claim (preliminary security). A commercial ship which has already been arrested and released, or one for which a guarantee for securing a maritime claim has been paid for, regardless of the flag in which this was executed, cannot be arrested again for the same claim, save in some cases.
Given the fact ICAS concerns only sea-going ships, MSC provides identical procedure regarding river-going ships in Art. 365. The arrested ship may be relocated at a secure place in the port or at a roadstead until the elimination of the reasons that led to the arrest. The port captain’s relocation Order is subject to preliminary execution. When ordering a prohibition for departure, respectively arrest, the port captain locates the ship at an appropriate secure place in the port. Executive Agency “Maritime Administration” does not bear any liability for expenses, occurred with relation to the ship relocation.
As evident from the definition of “Arrest” given by ISAC, this instrument shall be distinguished by the coercive administrative measures which may be imposed by administrative state bodies or officials and also on non-commercial ships. Such measures are “detainment” and “prohibition of departure” (respectively “entry”). A legal definition of the former has not been provided. According to Art. 74 of MSC, the Executive Agency “Maritime Administration” (EAMA) may detain a ship in territorial waters, internal sea waters and ports and perform a survey thereof within 24 hours, if there are reasonable grounds to believe that it does not meet the prescribed safety requirements. Art. 362b of MSC provides that the executive director of EAMA may prohibit the entry of a foreign ship which does not comply with ecological requirements. MSC prescribes that “prohibiting of departure” is a security measure, representing a detainment of a ship at the port for securing a public taking pursuant to Art. 364 of MSC. The captain of the port or an official authorized by him may prohibit the departure of any ship for security, environmental and other reasons until their elimination. The Ordinance for ship detainment or prohibition of departure/entry may be appealed pursuant to the Administrative Procedure Code (APC). The appeal does not stop the execution of the coercive administrative measures.
Art. 30 of the Maritime Space, Inland Waterways and Ports Act (MSIWPA) stipulates that within their competences and in cases of breach of legislation, the authorities of the Ministry of Internal Affairs, the Ministry of Defense and the Ministry of Transport, Information Technology and Communications shall, in respect of a foreign non-military ship within the internal waters or the territorial sea, have the right to impose coercive measures such as to stop the ship and inspect it or detain it and also disembark and detain the persons guilty of certain crimes. Pursuant to Art. 76b of MSIWPA any ship, located in the internal waterways of the Republic of Bulgaria may be stopped, inspected or detained with relation to a breach of the legislation.
In a nutshell, the arrest of ships in Bulgaria represents a coercive measure, which may be imposed only on commercial ships, ordered by the competent Court, for the securing of an existing or future maritime claim. This concept of law shall be distinguished by the administrative sanctions which state authorities may impose also on non-commercial ships located in Bulgarian waters.