Northstar NV (Northstar), formerly Transcor Energy NV (Transcor), delivered 93,538 mt of bunkers in Antwerp on 30 October 2014 on behalf of OW Bunker Nederland (OWB NL) to the MV Fjellstraum, owned by Utkilen Shipping AS (Utkilen). Utkilen ordered a total of 116,000 mt of bunkers on 24 October 2014 from the Norwegian company Bergen Bunkers AS (BB), which placed this order with OWB NL, which, in turn, called on the ultimate physical bunker suppliers, including Transcor. OWB NL was part of the OWB group associated with OWB A/S and OW Supply Trading A/S, which was declared bankrupt on 7 November 2014. OWB NL was also declared bankrupt by the Rotterdam District Court on 21 November 2014 due to the bankruptcy of the parent companies.

On 30 October 2014, BB invoiced Utkilen for the total bunker delivery, part of which corresponded to the bunkers supplied by Transcor. This invoice was paid by Utkilen on 21 April 2016 pursuant to an agreement between Utkilen and the bankruptcy trustee of BB. On 31 October 2014, Transcor invoiced OWB NL for USD 44,196.71. This invoice remained unpaid. On 12 February 2015, Transcor successfully applied for a warrant of arrest for the Fjellstraum. On 17 March 2015, in order to avoid seizure of the vessel, Utkilen had a P&I club guarantee provided to Transcor by Nordisk Skibsrederforening (Nordisk) for USD 63,706.22. Northstar then continued the proceedings initiated by Transcor, claiming against OWB NL for payment of its invoice. Utkilen protested a lack of jurisdiction of the Court with regard to Northstar's claim in so far as it was directed against OWB NL. The Court of first instance rejected the plea of a lack of international jurisdiction, holding that Northstar's claim against OWB NL was admissible and validated only 'in so far as this claim aims to obtain a judgment with a view to calling up the claim in respect of the assets of a third party that do not belong to the estate of OWB NL'. Northstar's claim against Utkilen was declared admissible but unfounded. Utkilen's claim for the return of the P&I club guarantee was only allowed to the extent that it was ruled that the guarantee would be refundable once this or another judgment became effective. Northstar appealed against this judgment.

Held: Northstar's appeal is dismissed as admissible and unfounded. Utkilen's cross-appeal is declared admissible and partly well-founded, to the extent determined below. The judgment below is overruled in as much as the first instance Court found Northstar's claim against OWB NL inadmissible and partly well-founded, and partly upheld Nordisk's claim for restitution of its guarantee. The Court declares that it has no international jurisdiction to take cognisance of Northstar's claim against OWB NL; Utkilen's claim for restitution of the guarantee is permissible but currently unfounded; and the conditions for calling on the guarantee have not been met to date.

Utliken argues that OWB NL, which was declared bankrupt, was not legally served at its business address in the Netherlands, which makes Northstar's appeal inadmissible/null and void. Pursuant to art 14 of Regulation No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, any Member State may effect the service of judicial documents on persons residing in another Member State directly by registered letter with acknowledgment of receipt or equivalent. That requirement was met in the present case. The notice of appeal was also regularly served on OWB NL.

Utkilen maintains, by means of a cross-appeal, its objection of lack of international jurisdiction raised before the first instance Court as regards Northstar's claim against OWB NL. In any event, the Court is bound by art 28.1 of the Brussels I bis Regulation to rule on its international jurisdiction with regard to Northstar's claim against OWB NL, since the latter does not appear in this case, nor is represented, as was the case before the first instance Court. OWB NL was therefore also deemed to challenge the international jurisdiction of the court before the first instance Court. Pursuant to art 1.2.b of the Brussels I Regulation (Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters), this Regulation does not apply to bankruptcy settlements and other similar procedures. According to article 3.1 of the temporally applicable Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings (the Insolvency Regulation), only the Member State in whose territory the insolvency proceedings have been commenced has international jurisdiction to take cognisance of claims arising directly from these proceedings and proceedings closely related thereto. According to the European Court of Justice, determining in which field a claim falls does not relate to the procedural context of that claim, but rather the legal basis of that claim. By making the same claim against OWB NL both 'outside the estate' and 'in relation to the estate', it appears that the requirement of an 'intense relationship between legal action and insolvency proceedings', as proposed by the European Court of Justice in determining whether the Insolvency Regulation should be applied, is met. After all, by making both claims, Northstar is claiming the entire assets of OWB NL (both the bankrupt estate and the assets outside the estate), whereby it will have to be determined whether the payment obligation of OWB NL towards Northstar must be regarded as an obligation that belongs to the estate. Northstar's current claim 'outside the estate' with regard to OWB NL therefore does fall within the scope of the Insolvency Regulation. The Court therefore has no international jurisdiction to rule on Northstar's claim in so far as it is directed against OWB NL.

Finally, Northstar bases the international jurisdiction of the Court on the provisions of art 7 of the Arrest Convention 1952, arguing that this international Convention should take precedence over the European Regulations. Article 7 provides: 'The Courts of the country in which the arrest was made shall have jurisdiction to determine the case upon its merits if the domestic law of the country in which the arrest is made gives jurisdiction to such Courts, or in any of the following cases ...' [Court's emphasis]. Article 1.2 of the Arrest Convention defines what is to be understood by 'arrest' within the meaning of the Convention: '"Arrest" means the detention of a ship by judicial process to secure a maritime claim, but does not include the seizure of a ship in execution or satisfaction of a judgment.' Reading the provisions of art 7 and art 1.2 together, it appears that, for art 7 to apply, the ship must effectively be seized. In this case, a warrant of arrest was only granted without the ship being effectively seized, so that, to the extent that the jurisdiction of this Court is supported by art 7 of the Arrest Convention, this legal ground fails for that reason alone.

In addition, art 7 of the Arrest Convention shall in any event not affect the application of internal rules on international jurisdiction. To the extent that the European Regulations, through their direct effect in the Member States, take precedence over the internal rules of each of the Member States, it also immediately becomes apparent that art 7 is without prejudice to internal rules on international jurisdiction, including their possible amendment by the directly applicable provisions of the Brussels I bis Regulation and the Insolvency Regulation. The provisions of art 7 of the Arrest Convention as such do not affect the direct effect of the European Regulations on the rules of internal law (possibly amended in that sense) in the legal relationship between parties established in the European Member States.

The mere fact that Northstar mentioned the Fjellstraum on the bunker requisition form and the bunker delivery receipt of 30 October 2014 did not make Utkilen a party to the bunker supply agreement. These documents were signed on the day of delivery and are only part of the execution of the purchase agreement, without being able to create additional obligations for parties that are not included in the original agreement.

Furthermore, the Arrest Convention 1952 essentially provides security for a claim, in this case a maritime claim. Ship arrest is a custodial attachment. No obligation on the merits can therefore be derived from the provisions of the Arrest Convention. This is also stated in art 9 of the Convention: 'Nothing in this Convention shall be construed as creating a right of action, which, apart from the provisions of this Convention, would not arise under the law applied by the Court which was seized of the case ...'. It appears from this provision that the conservatory attachment of a seagoing vessel must be dissociated from the question of the liability to pay the debt, and that the Arrest Convention does not create new claims or rights of action that are not related to the possibilities and conditions of conservatory attachment of a seagoing vessel provided for in the treaty: see also The Heinrich, Cass, 1 October 1993, AR 8050, ECLl:BE:CASS:1993:ARR.19931001.8 (CMI1124).

The fact that the Arrest Convention is based on the commercial law approach that a maritime claim relates to the ship, so that the shipowner can be confronted with an attachment (propter rem), although it is not the debtor of the claim, is the result of a compromise between English law and Continental law that was reached in the drafting of the Arrest Convention. However, this specific propter rem approach, arising from English law and specific to the conservatory attachment of seagoing vessels on the basis of the Arrest Convention, is without prejudice to the contract law approach which remains valid in the assessment of the merits, if it appears that the claim of Northstar for bunker deliveries to the ship is subject to Belgian law, as is undisputed between the parties in this case. The Court refers again to art 9 of the Arrest Convention.

The fact that the provisions of the Arrest Convention have been transposed into Belgian domestic law (now in the Maritime Code), again concerns the assessment of whether to grant arrest of the ship, being a protective measure that is unique to the ship. This is separate from the assessment on the merits.

To the extent that Northstar refers to the temporally still applicable provisions of the Belgian Judicial Code regarding the executive attachment of a seagoing vessel (including arts 1547 ff of the Judicial Code), the Court points out that an enforceable title is still required for the application of these provisions, in which justice is given on the merits of the claim being enforced. In other words, these provisions cannot be used as evidence of a claim on the merits, but only apply to the extent that there is an enforceable title on the merits which can be enforced under these provisions. With regard to the Belgian and foreign case law cited by the parties, the Court refers to art 6 of the Judicial Code. In each individual case, it must be determined in concrete terms what the contractual relationships are, and whether the shipowner has committed itself with regard to the bunker supplier. The Annette Esberger and Ramona cases concern judgments handed down in the context of a conservatory garnishment procedure with regard to the question whether there was a maritime claim within the meaning of art 1.1 of the Arrest Convention. Such an assessment does not affect the merits of the case in any event. Under Belgian law, proof of a contractual obligation is required in the context of the assessment on the merits.