The plaintiff claimed compensation from the defendant for the arrest in Morocco of a ship previously owned by it. The plaintiff is a company registered in the Marshall Islands which has its administrative headquarters in Greece. According to the plaintiff's submission, it was the owner of the ocean-going ship MS BF, which was flagged to the Marshall Islands and was managed by a company registered in Liberia, which is also said to have its administrative headquarters in Greece. The ship was sold in the course of the legal dispute.

Pursuant to a time charterparty dated 27 June 2014, the plaintiff chartered the MS BF to O Shipping Services GmbH based in Germany. The contracting parties agreed that the charterer would acquire all bunker fuel for the ship for the duration of the time charter at its own risk and expense.

The Hamburg-based defendant trades in marine diesel. It had a business relationship with O Services GmbH, Düsseldorf. In July 2014 it received a bunker order for the ship from a company O, which the defendant assumed was the business partner it knew and was the charterer of the ship. It delivered the fuel on 30 July 2014 in Singapore. German law and Hamburg jurisdiction were agreed in the bunker supply contract. O Shipping Services GmbH paid only USD 150,000 of USD 385,154.86; the rest remains unpaid.

At the beginning of March 2015 the MS BF arrived in Casablanca. On 9 March 2015, the defendant obtained the ship's arrest from the Moroccan Commercial Court. During the arrest, the ship could not leave the port, but could still be loaded and unloaded. The plaintiff did not challenge the arrest decision. After the defendant had refused security offered by the plaintiff in the form of a P&I club letter, the plaintiff obtained the ship's release by depositing a cash sum of USD 250,000 with the Moroccan Court. This is still deposited at the forum arresti. Main proceedings between the parties regarding the attachment claim are not pending in Casablanca.

The defendant brought its claim against the charterer and the bunker purchaser in Germany successfully in the first instance. The opposing side appealed to the Hanseatic Higher Regional Court (3 U 30/16) against the judgment of the Regional Court of 19 October 2016 (411 HKO 25/15), which was rejected. The plaintiff incurred costs of EUR 21,715 as a result of correspondence with a Moroccan lawyer up to and including 29 January 2016. In a letter dated 25 February 2016, the plaintiff requested the defendant to apply to the Moroccan court for the immediate return of the security. The defendant did not comply.

The plaintiff argues that the defendant is liable to pay compensation due to the arrest of the ship and the resultant need for the plaintiff to deposit security. Even if the arrest was admissible under Moroccan law, which the plaintiff denies, it argues that the defendant's actions are unlawful. The defendant has no claims against the plaintiff as there is no contract between the parties. The defendant took advantage of the fact that under Moroccan law a ship arrest for claims for bunker supplies is possible even if the shipowner is not the debtor. The cause of the arrest is an unlawful interference, which justifies claims for damages of the injured party according to §§ 823(1), 823(2) and § 826 BGB [German Civil Code]. The plaintiff claims USD 250,000 plus interest, or, alternatively, asks the Court to order the defendant under threat of coercive measures to take the actions necessary to achieve the repayment of the security deposit of USD 250,000 paid by the plaintiff on the basis of the arrest order of the Moroccan Court.

The defendant protests the international jurisdiction of the Hamburg Regional Court. The subject of the action is the lawfulness of State action by the Kingdom of Morocco. Because of Morocco's sovereignty, German courts are not competent. Under art 7.1.c of the Arrest Convention 1952, the Moroccan courts have jurisdiction over the action. The applicability of the Arrest Convention follows from arts 8.2 and 8.3 of the Convention.

Held: The appeal is admissible and well-founded.

The international jurisdiction of German courts follows from arts 4.1, 63.1.a of Regulation (EU) 1215/2012 (Brussels I Regulation (Recast)) applicable to the present action. The defendant has its statutory seat in Hamburg and thus in a member State of the EU. There are no indications that the courts of another State have priority or exclusive jurisdiction. Nothing else follows from art 7.1.c of the Arrest Convention 1952. This is because the subject of the action is not the merits of the arrest in Morocco. According to art 7.1.c of the Arrest Convention, the courts of the country in which the arrest took place decide on the merits of an arrest, provided that the domestic laws so provide and the claim arose in the voyage of the ship during which the arrest was made.

The regional jurisdiction of the Hamburg Regional Court follows from §§ 12, 13 ZPO [Code of Civil Procedure]. The statements of the Regional Court in the contested judgment on the merits of the action do not stand up to legal scrutiny. In this matter, contrary to the finding of the Regional Court, according to art 4.1 of the Rome II Regulation, Moroccan law is applicable. In the present case, the application of Moroccan law follows from art 6.1 of the Arrest Convention. The Convention, which came into force in Germany on 6 April 1973 (Federal Law Gazette 1973, Part II, p 172) takes precedence over German law as a lex specialis for the limited scope of the Convention. According to art 6.1 of the Convention, the liability of the arresting creditor for all damage caused by the arrest of the ship or through the provision of a guarantee or other security for the cancellation or avoidance of the arrest is determined by the law of the contracting State in whose jurisdiction the arrest was made or applied for.

However, the Arrest Convention does not apply to the present case, since the ship is or was flagged in the Marshall Islands. Pursuant to art 8.1 of the Arrest Convention, the Convention applies in each Contracting State to every ship flying the flag of a Contracting State. The Marshall Islands is not a contracting State. Article 8.2 of the Convention, according to which a ship flying the flag of a non-contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in art 1 or of any other claim for which the law of the Contracting State permits arrest, is merely of a declaratory nature. The provision only makes it clear that the arrest of ships flying the flag of a non-contracting State is not subject to the restrictions of the Arrest Convention. It can therefore also be considered whether the content of art 6.1 of the Arrest Convention would be applicable at all, ie whether it is a liability claim within the meaning of this provision, which the plaintiff denies.

The applicable law is therefore determined by the Rome II Regulation. The tort/delict claim asserted here falls under it. According to art 4.1 of the Rome II Regulation, the law of the State in which the damage occurs is to be applied to a non-contractual obligation, regardless of the State in which the event causing the damage or indirect consequences of the damage occurred. According to the undisputed facts, this is Morocco. The ship was arrested in Morocco; the plaintiff's damage occurred there.

The conditions for establishing a claim for damages by the plaintiff against the defendant under Moroccan law are not met. The plaintiff has not shown why the defendant's application for arrest in Morocco and the subsequent arrest on the ship was unlawful. The mere fact that the plaintiff was not the defendant's debtor makes no difference. According to the defendant's contention, ship arrest in Morocco is in principle possible even if the shipowner is not the debtor of the claim. The plaintiff has denied this. However, that is not sufficient, because it is up to the plaintiff to present at least the factual circumstances which it believes could justify a finding that the ship arrest applied for by the defendant justifies the plaintiff's claims for damages as an unlawful act by the defendant under Moroccan law. Contrary to the plaintiff's view, this result does not constitute a violation of German public policy. It is not incompatible with the fundamental principles of the German legal system and the principle of the rule of law that a right of compensation is denied to a plaintiff who, according to the standards of another legal system, must provide security in proceedings for interim legal protection, even though the defendant has no claim against the plaintiff in the main proceedings.

Article 3.4 of the Arrest Convention, which is not applicable to the present case, but has been ratified by Germany and is therefore part of the German legal system, allows the arrest of a ship even if it is not the owner but the demise charterer that is the debtor of the claim. According to German law, it is also conceivable that a ship is arrested even though the arresting creditor has no claim against the owner, provided the Arrest Convention applies.

The plaintiff should also have suffered compensable damage. The security deposit of USD 250,000 was made to prevent enforcement. The Moroccan Court, however, has not found that the defendant may finally satisfy its claim from the plaintiff's assets. Rather, the purpose of the security deposit is to free the attaching creditor from the risk of its debtor becoming insolvent. If the case results in the successful satisfaction of the claim against the bunker purchaser, the security would have to be repaid to the plaintiff. The details are based on Moroccan arrest law. Although the Arrest Convention is not applicable in the present case - as stated - the Convention nonetheless demonstrates that Moroccan law also includes the main proceedings that are subordinate to the arrest proceedings (cf art 7 of the Convention). There is no sufficient evidence that the security would be lost for the plaintiff.

As far as can be seen, the defendant only benefited from the favourable legal situation in Morocco. There are no indications that the defendant pursued the proceedings unfairly. The defendant was not obligated to initiate main proceedings against the plaintiff in Morocco. It initiated proceedings in Germany against its debtor, the bunker buyer, in order to assert its claim. In doing so, it continued to pursue its claim and thus contributed to the elimination of the situation that resulted from the ship arrest. The fact that the ship was not arrested in Morocco until about six months after the claim was due is not a relevant indicator of the defendant's abusive attitude. Rather, it seems quite possible and understandable that the defendant was still hoping for a voluntary payment from the bunker purchaser in the meantime. The fact that the defendant may have waited for the MS BF to call at a port in Morocco in order to arrest the ship there, does not in itself justify the assumption of an unauthorised or unlawful act of the defendant.

Based on an overall assessment of the defendant's behaviour, contrary to the plaintiff's view, there was no unlawful damage to the plaintiff. In the absence of an unlawful act, the plaintiff is also not entitled to reimbursement of its pre-litigation costs against the defendant.

[An appeal to the Federal Court of Justice is pending: BGH - VI ZR 229/19.]