Minutes no. 16/20.08.2009 of Constanta Court – unpublished.
In that case that the Court misapplied the provisions of article 3 of the 1952 Convention
considering that, even if the ship that was alienated, the quality of debtor still belongs
to the defendant, pursuant to article 3(1) of the Convention. The conciliation operated by
the Convention between the common-law and civil systems, of French origin, requires the setting
of the arrest only on the assets belonging to the debtor, assets which must be part of its
patrimony at the time of formulating the application for an arrest.
We hereby present the reasoning of the Court “Since the claim raised by the creditor in
connection with the ship concerned, and at the time the claim arose, the debtor was the owner
of the ship in question, the plea of the mentioned debtor’s lack of passive capacity to stand
trial subsequently being rejected as unfounded”.
The solution is wrong and in relation to the provisions of Article 907 of the Commercial Code,
in force at that time, which required the setting of the arrest only on the movable property
of the debtor, the debtor’s assets out of its patrimony at the time of the application
failing to be arrested. The same condition is currently maintained by articles 951-952 of the
new Code of Civil Procedure.
As a matter of fact, this is the only solution of its kind identified in the maritime practice
of Constanta Court.