Detention of Vessels in Ukrainian Ports: What Harbour Masters Need to Know
Every shipowner and shipmanager whose vessels call Ukrainian ports, at least once faced with detention of the vessel by the Harbour Master. We did not find statistics of vessels detention in open sources although we believe this information could not be qualified as confidential or secret and should be disclosed at the web-site of the Shipping Administration of Ukraine1. However, according to experience of ANK Law Office, detention of vessels, which call one of six sea ports actually working (Odesa, Chornomorsk, Pivdennyi, Izmail, Reni and Ust-Dunaysk) happens on regular basis. The reason for writing this article was several cases when certain Harbour Masters commenced wilful interpretation of provisions of the Merchant Shipping Code of Ukraine (hereinafter “the Code”). That is why we suggest to set the record straight on the matters related to vessels detention in Ukrainian ports by the Harbour Master to reduce potential misunderstandings in future.
Maritime Claims Allowing to Detain a Vessel
Let me please remind you that in Ukraine the Harbour Master shall be entitled to detain a vessel for 72 hours following the application of a legal entity or individual, which has a valid maritime claim as provided by the articles 80 and 81 of the Code. Along with that definition of “maritime claim” is indicated in the art. 42 of the Code, which refer on 23 (!) types of maritime claims, including claims caused by damage to the environment (e.g. palm olein spill or crude oil spill), claims related to damage to the cargo, illness, disability or loss of life by a crewmember etc. However, it is worth to note that art. 80 of the Code contains a much smaller list of maritime claims authorizing the Harbour Master to detain a vessel compared to the art. 42 of the Code, which regulates arrest of the vessel for securing of maritime claims. For convenience we offer to split these maritime claims into three groups: (a) environmental claims; (b) hydraulic claims; (b) accident and rescue claims. Let’s take a closer look on them through real cases.
Environmental claims
According to para 4 of part 1 of the art. 80 of the Code, a vessel or a cargo could be detained in a sea port by the Harbour Master until providing of sufficient security of a maritime claim by a shipowner or cargo owner following a maritime claim of the central executive authority realizing state policy for protection of the environment, caused by “violation of environment legislation of Ukraine”. Here I would like to remind you that this “central executive authority” is now State Ecological Inspectorate of Ukraine2. Therefore, territorial or interdistrict departments of the Inspectorate (e.g. State Ecological Inspectorate of the South-Western District (Odesa and Mykolaiv regions) are not entitled to approach the Harbour Master with request to detain vessels following the art. 80 of the Code. That is why in such cases Harbour Masters shall refuse in detention of a vessel because the detention application has been submitted by non-authorized state authority.
Secondly, let’s figure out the definition “violation of environmental legislation of Ukraine” used in the art. 80 of the Code. You will agree this definition is extremely wide and unclear, which creates room for misuses. It is also interested that in the art. 42 of the Code, which refers to the exhaustive list of maritime claims, which allow to arrest a vessel, “environmental” claims are incorporated in another way, namely, “a claim caused by damage to the environment”. From our point of view, this definition is much better because “damage” always has a monetary equivalent, while “violation of the legislation” is generally an evaluative concept, which should be fixed by a protocol on administrative offense or including a record into the Unified Registry of Crime Offenses if we speak about crime offense. As our practice shows, detention of vessels following “environmental” claims usually takes place due to spill of territorial sea of Ukraine during vessel’s stay in the port under cargo operations. It could be sea pollution caused by petrochemicals, palm olein, sewage waters or waste. However, territorial departments of the Inspectorate do understand they are not authorized to ask the Harbour Master to detain a vessel and that is why use another trick: they immediately issue the protocol on administrative offense against the Master of the vessel under art. 591 of the Code of Administrative Offenses of Ukraine and hand over the Letter of Claim for reimbursement of losses caused by sea pollution to the shipowner. Once the Harbour Master received a copy of the protocol and Letter of Claim he will easy refuse to issue port clearance certificate to the vessel with reference to para “c” of part 2 of the art. 91 of the Code (“non-payment of established port dues, penalties and other payments”). That’s how events unfolded in the case with m/v “Theresa Success” (pollution of the water area of Pivdennyi port by palm olein on 30th of July 2004), in the case with m/v “Stavanger” (pollution of the water area of Pivdennyi port by palm olein on 30.04.2020), in the case with m/v “Aqua Splendor” (pollution of the water area of Pivdennyi port by petrochemicals on 27.05.2020) and similar cases. That is why we can conclude that this provision of law is hardly ever used in practice.
Hydraulic Claims
According to para 4 of part 1 of the art. 80 of the Code, a vessel or a cargo could be detained in a sea port by the Harbour Master until providing of sufficient security of a maritime claim by a shipowner or cargo owner following a maritime claim of the port caused by damage of port facilities, other property and navigation equipment located in the port. This group of claim involves damages to hydraulic facilities (e.g. quay walls, berths, piers, traverses, breakwaters and other hydraulic facilities), navigation equipment (lighthouses, buoys, radar stations, aerials etc.) and other property located in the port. In our opinion, this group includes damages to the transshipment equipment (portal cranes, loaders, reachstakers), special purpose vehicles and equipment, which is involved into cargo operations in the port. A famous case, which happed in Odesa Sea Port in the beginning of 2000, was an accident with container ship “CMA CGM AEGEAN”, which damaged the berth #2 during mooring operations. The Vessel has also damaged its own fuel tank, which caused pollution of the water are of Odesa port and waters of Odesa Bay by petrochemicals (oil spills have been detected on Lusanivka beaches, which are located on the opposite side of Odesa Bay). In that case the Harbour Master of Odesa port Oleksandr Antonov has detained m/v “CMA CGM AEGEAN” for 72 hours for securing maritime claims of Odesa port, and soon enough the Arrest Ruling of Prymorskiy District Court of Odesa has been issued. In such cases the applicant is usually represented either by administration of the sea port or marine terminal, whose property has been damaged as a result of the accident. Another case took place on 22nd of October 2021 in the water area of Chornomorsk Sea Port, when m/v “HAKSA” during mooring operations has damaged berths No. 17 and No. 18. The Vessel has been initially detained by the Harbour Master of Chornomorsk Port and thereafter has been arrested by the Commercial Court of Odesa region to secure maritime claims of Chornomorsk Sea Port Administration.
Accident and Rescue Claims
According to para 4 of part 1 of the art. 80 of the Code, a vessel or a cargo could be detained in a sea port by the Harbour Master until providing of sufficient security of a maritime claim of the entity, which caused by the general average, salvage, cargo transportation agreement, collision of vessels and other cause of damage. As our experience shows, this group of maritime claims is widely used as legal ground for detention of vessels by Harbour Masters, however, maritime lawyers often argue lawful grounds for detention. Therefore, let’s discuss this group in details.
General Average and Salvage
As we know, general average shall mean losses incurred as a result of extraordinary expenses or sacrifices made intentionally and reasonably in order to save the vessel, the freight and the cargo carried on the vessel, from a common peril to them. The general average shall be adjusted between the vessel, the freight and the cargo pro rata to their value. A fact of the general average shall be confirmed by the average statement, which is issued by the average adjuster and burden of proof that the losses or costs claimed should indeed be recognised as the general average shall be with a party claiming adjustment of the general average. A good example of the case with general average in Ukrainian waters could be an accident with m/v “Azovskyi Veter”, which got a hull breach during convoy passage in the ice conditions of Bugsko-Dniprovsko-Limanskyi channel in the end of 2014. As a result of the hull breach the risk of wetting the cargo arisen and the Master decided to ground the vessel and shipowner declared general average. It should be noted that main international treaty regulating general average is York-Antwerp Rules initially adopted in 1864, and although latest edition of YAR has been approved in 2016, majority of charter-parties continue to refer to the YAR of 1994.
The salvage at sea concept is regulated by the Section 6 of the Code, whose provisions overlap the content of the International Convention on Salvage 1989, which gained legal force for Ukraine on 15th of June 2018. We would like to remind you that key principle of salvage is the “right to reward” (see art. 12 of the Convention), which means that salvage operations, which have had a useful result give right to reward. The amount of reward shall be regulated by the agreement of the parties, and if no consent has been reached – by the court, commercial court of Maritime Arbitration Commission. The law (art. 333 of the Code) provides for 10 criteria, which should be taken into account while determination of the amount of reward (similar criteria have been incorporated in the art. 13 of the Salvage Convention). Probably, the most famous case of “salvage” cases in Ukrainian territorial waters is the accident with tanker “DELFI”, which has been drifting several days in the waters of Odesa Bay during storm wind and crew did not communicate and refused help from salvors. As a result of the accident tanker “DELFI” got aground on 22nd of November 2019 nearby one of the city beaches. However, there was no need to detain the vessel for 72 hours because as a result of the accident she has become unseaworthiness. The Vessel was lying on the ground during 9 months until it has been lifted and towed to Chornomorsk.
Cargo Transportation Agreement
As you know, the proof of the cargo transportation agreement shall be a bill of lading, voyage charter or other written evidences (e.g. sea waybill). Along with that in the art. 42 of the Code (as well as in the Brussels Convention 1952) the agreement on cargo transportation and agreement of hiring a vessel (through a charter-party) are listed as separate (independent) maritime claims. Let me please remind you that according to the art. 133 of the Code, according to the cargo transportation agreement the carrier undertakes to transport the cargo entrusted by the shipper from the port of loading to the port of destination and to deliver the cargo to authorized entity, and the shipper or the charterer undertakes to pay a freight to the carrier (owners). The Owners and the Charterers shall be legal entities, which have executed the charter-party. Therefore, although maritime claims arising out of the charter-party are not listed directly in the art. 80 of the Code, in practice certain Harbour Masters do satisfy the application for vessel’s detention submitted by the charterers or cargo owners with reference to the voyage charter (charter-party). According to our supervision, this type of detention is most popular nowadays and here are a couple of fresh cases.
On 19th of August 2024 the Harbour Master of Chornomorsk Port has detained m/v “BRAVE HEART” under the application of the legal entity, which claimed that has suffered losses due to refuse of a shipowner to deliver chartered vessel to the port of loading agreed in the charter-party, while owners argued that no charter-party has been signed. On 15th of June 2023 the Harbour Master of Izmail Port has detained m/v “RTB-2” following the maritime claim of a Swiss company, which referred to the cargo transportation agreement in a form of voyage charter-party. On 12th of February 2023 the Harbour Master of Reni Sea Port has detained m/v “JASMIN QUEEN” following the application of the charterers who claimed that owners have unlawfully terminated the charter-party in a unilateral way. On 26th of October 2020 the Harbour Master of Izmail Sea Port has detained m/v “MAZU” following the application of Ukrainian oil and fat factory, who suffered losses due to violation of the cargo transportation agreement (charter-party) by the owners.
While examination of the applications on vessels detentions based on the part 1 of the art. 80 of the Code, namely, with reference to the breach of the charter-parties, the Harbour Masters shall carefully check whether a maritime claim is indeed based on the cargo transportation agreement (voyage charter-party), because, as you know, not all charters are cargo transportation agreements. For example, a bareboat-charter or time-charter are not cargo transportation agreements, and that is why these maritime claims could not be a legal ground for vessel’s detention within art. 80 of the Code.
Vessels Collission
A fresh case from our practice is an accident with collision of m/v “MIRA” with a barge “COSMINA-1” and vessel “HENIA” in the water area of Reni Sea Port, which took place on 14th of April 2024. The barge has been loaded with the cargo of fertilizers and as a result of collision the barge has become unseaworthy and has been grounded ashore with assistance of tugs. Next day, on 15th of April 2024 the Harbour Master of Reni Sea Port has detained m/v “MIRA” for 72 hours based on the art. 80 of the Code following the application of the cargo owner. On 17th of April 2024 the Commercial Court of Odesa region has issued the Arrest Ruling to arrest m/v “MIRA” as a security of a maritime claim. Another example is collision of m/v “NAVITAS”, which has been sailing on the Danube River, with m/v “MAINLAND”, which has been moored nearby the berth of Reni Oil Terminal, and has been damaged as a result of collision. This accident took place on 12th of February 2023 and two days later, on 14th of February 2023 the Harbour Master of Reni Port has issued the Detention Order to detain the Vessel within art. 80 of the Code.
Other types of damage caused
Part 1 of the art. 80 of the Code refers to the possibility of detention of the vessel to secure a maritime claim based on “causing other damage” Such definition can hardly be called correct from the legal technique point of view, because if you want to, it can be used as an excuse for accident or marine peril. Let me please remind you that art. 42 of the Code does not refer to a “maritime claim based on causing of other damage”, but contains particular maritime claims like damage caused by loss or damage to the property (clause 1 of art. 42), damage caused by loss of life or health deterioration (clause 2 of the art. 42), damage caused to the environment (clause 3 of the art. 42) etc.
From our point of view, practical implementation of this regulation could be possible in case of maritime claims of crewmembers caused by damage to the health or legal heirs (next of kins) of the deceased seafarers under the claims based on death in service or missing at sea. For example, on 12th of March 2020 a bulk carrier “INA-LOTTE” flying Cayman Islands flag has been detained by the Harbour Master of Chornomorsk port for 72 hours to secure a maritime claim of the widow and daughter of Ukrainian seafarer, who died during employment period with the same shipowner.
What Should Be Mentioned in the Detention Order?
The Merchant Shipping Code of Ukraine and other laws do not provide for clear details, which should be listed in the detention order issued by the Harbour Master. In our practice we have been both too short orders (without reference to the applicant’s full style, nature of the claim and relevant part of the art. 80 of the Code as well as clear time of detention) and too long orders with detailed explanation of the circumstances of the case and details of the vessel, applicant and cargo on board.
From our point of view, the Detention Order must necessarily contain the following details: name, flag and IMO number of the vessel; actual location of the vessel (berth and port), full style of the applicant, which allows to identify the legal entity or individual; short introduction of the nature of a maritime claim with reference to the relevant part of the art. 80 of the Code with reference to the particular maritime claim; clear time (date, hour, minute) of detention to understand when exactly a 72 hours period starts. Also, it is worth to note in the Detention Order with in case of claimant’s failure to submit the Arrest Ruling within 72 hours, the detention will be cancelled automatically. Availability of these details will help to avoid disputes regarding particular moment of expiry of the detention period and provides to the owners and shipping agent clear understanding of the reasons and legal grounds for detention.
While issuing the Detention Order, the Harbour Master shall carefully check the facts indicated in the relevant application (maritime claim) and remember that not every claim indicated in the art. 42 of the Code allows to detain the vessel and that list of maritime claims indicated in the art. 80 of the Code is much shorter. We do believe that advices and considerations incorporated herein will be useful for Harbour Masters and will help them to take a more balanced and responsible approach to examination of the applications on detention of vessels.