In a recent case that Menelaos Kyprianou was involved in the Supreme Court of Cyprus in its maritime jurisdiction examined whether a warrant ordering the arrest of a ship located in Cyprus could be issued in support of court proceedings that are currently pending in Greece (Grandest Shipping Company Limited v ‘The ship Marvin Independence’).
The essential facts of the case were the following:
- The ship had been bought by the defendants at an auction that had taken place in Greece in September 2021. The plaintiffs disputed that the sellers at the auction were the lawful owners of the ship and that they had the right to sell it. They argued that (for reasons that are not relevant here) they themselves were the lawful owners of the ship and that as a result at the auction title to the ship had not passed to the defendants.
- The plaintiffs therefore filed a court claim in Greece against the defendants and obtained from the Greek court a ship arrest order over the ship (which was at the time moored at the port of Elefsina) and also an order prohibiting the defendants from further selling the ship to any third party.
- However, at a subsequent court hearing the Greek court cancelled the ship arrest order and left in force only the order prohibiting the defendants from selling the ship. The ship was therefore free to leave the port of Elefsina and a few days later, in the course of carrying out its business, reached the port of Larnaca.
- Whilst the ship was at the port of Larnaca the plaintiffs applied ex-parte (without giving notice to the defendants) to the Supreme Court of Cyprus in its maritime jurisdiction and obtained a new ship arrest order purportedly in support of the pending Greek court case and on the basis of Article 35 of EU Regulation 1215/2021. This provides that:
Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.
- A hearing then followed in the presence of the defendants and the Cyprus court issued a judgment confirming that the ship arrest order had been correctly issued and should remain in force. The defendants then filed an appeal against this judgment and one of the arguments advanced was that the above-mentioned Article 35 of EU Regulation 1215/2021 was not applicable in the context of ship arrest cases. And that therefore the Cyprus courts do not have jurisdiction to issue warrants for the arrest of ships in support of court proceedings pending in other EU countries.
- The appeal court allowed the appeal and cancelled the ship arrest order. The critical factor in the court’s reasoning was that the Greek court had itself issued a ship arrest warrant which it subsequently cancelled. Therefore it was not possible for the Cyprus court to issue a ship arrest warrant in support of the Greek court proceedings when the Greek court itself had considered the matter and had held that the arrest of the ship was not necessary. In support of this legal position the appeal court referred to judgments of the English Court of Appeal and in particular to the leading case of Motorolla Credit Corpn v Uzan and others (No.2)  EWCA Civ 752.
The Cyprus appeal court left open the legal possibility, under different factual circumstances, of a ship arrest warrant being issued in support of a court case pending in another EU country.