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1. The defendant (hereinafter called "Antartica") is a company having its principal place of business in the Republic of the Ukraine and it owns eight ships being those more particularly referred to in the General Endorsement of Claim on the plenary summons herein together with the MV "Kapitan Labunets" which is the subject-matter of the application presently before the court. All fly the Ukrainian flag. It is alleged by the plaintiff company, inter alia, that Antartica is indebted to it in respect of the bunkering of certain ships, the property of Antartica, by the plaintiff. It is not alleged that any monies are owing to it in respect of the MV "Kapitan Labunets" or that any goods were supplied or services rendered to her by or on behalf of the plaintiff.

On 4 March 1994 the MV "Kapitan Labunets", which is a factory ship relating to Antartica's fishing fleet, was in the port of Castletownberehaven. On that date an ex-parte application was made to this court for a warrant directing the arrest of the ship on the ground that the Brussels Convention Relating to the Arrest of Seagoing Ships 1952 ("the Convention"), which is incorporated into Irish law by the Jurisdiction of Courts (Maritime Convention) Act 1989 ("the Act"), permitted the arrest of a sister ship for the debts of any other ship in the same ownership notwithstanding that neither the Republic of the Ukraine or the Union of Soviet Socialist Republics of which it had been a constant part have subscribed to the Convention. A warrant for the arrest of the ship was duly issued and she has been detained thereunder at Castletownberehaven since that date.

On 2 June 1994 I delivered a reserved judgment in an action entitled

THE HIGH COURT

(ADMIRILITY)

1994 NO 3241p THE MT "MARSHAL GELOVANI"

BETWEEN

INTERGRAAN BV

PLAINTIFF

AND

THE OWNERS AND ALL PERSONS CLAIMING AN INTEREST

IN THE MT "MARSHAL GELOVANI"

DEFENDANTS

The facts were essentially similar to those in the present application. The net issue raised therein was whether under the Convention, or otherwise under Irish domestic law, a sister ship flying the flag of a non-contracting state may be arrested in respect of the alleged debts of another vessel in the same ownership. I held that, for the reasons stated in the judgment, a sister ship flying the flag of a non-contracting state is not liable to arrest under the Convention or otherwise in Irish law. The MT "Marshal Gelovani" was duly released and no appeal has been brought against that decision. The judgment therein has prompted Antartica to apply to the court by way of interlocutory motion for, inter alia, the following relief:-

1. An order directing the release of the MV "Kapitan Labunets".

2. An order setting aside the warrant of arrest issued on 4 March 1994.

3. If necessary or appropriate, an order directing an enquiry as to damages suffered by the defendant by reason of the wrongful arrest of the vessel at the suit of the plaintiff.

An affidavit in support of the legality of the arrest of the MV "Kapitan Labunets" sworn by Professor Francesco Berlingieri has been filed on behalf of the plaintiff and his submissions on the relevant principles of law have been responded to in affidavits sworn by Vincent Power, solicitor, and affirmed by Nigel Keith Meeson, of the English Bar, on behalf of the defendant. All three deponents are experts of international stature in the sphere of maritime law and in particular regarding the meaning and interpretation of the Convention. I have considered their submissions and also those of counsel for the respective parties. I find no reason to revise my earlier decision in the MT "Marshal Gelovani".

Professor Berlingieri's submissions are, understandably, inspired by civil law concepts. It seems that he does not fully appreciate the implications of the doctrine of stare decisis in a common law jurisdiction such as that in Ireland. As pointed out by Messrs Power and Meeson in their submissions, most of the judgments referred to by the former emanate from courts which do not have sufficient status to be acceptable as persuasive precedents in Irish law. In that regard I apprehend that judges in this jurisdiction would have no difficulty in concurring with the view expressed by Lord Diplock on the subject of decisions of foreign courts in course of his judgment in the House of Lords in Fothergill v Monarch Airlines [1981] AC 251 that "the persuasive value of a particular court's decision must depend upon its reputation and its status, the extent to which its decisions are binding upon courts of co-ordinate and inferior jurisdiction in its own country and the coverage of the national law reporting system" -- see page 284. In my view the conclusions advanced by Mr Meeson as to the status of the various judgments referred to by Professor Berlingieri in English law reflect also the situation in Irish law.

Professor Berlingieri also attaches greater status to the travaux preparatoires relating to the Convention than would be accorded to such material in Irish law. I apprehend that the observations of Lord Wilberforce in Fothergill that "the use of travaux preparatoires in the interpretation of treaties should be cautious" and that their utilisation should be "rare and only where two conditions are fulfilled: that the material is public and accessible and that the travaux preparatoires clearly and indisputably point to a definite legislative intention" would meet with approval in this jurisdiction. Even if one accepts the travaux preparatoires referred to by Professor Berlingieri at face value, it seems to me that they do not go far enough to establish the proposition which he has advanced.

I am satisfied that there are three crucial points on which this case turns. First, the Act merely incorporates the Convention into Irish law and it does not otherwise extend the domestic law of the State. Secondly, the concept of sister-ship arrest did not exist in Irish law prior to the adoption of the Convention and now exists only insofar as it is specifically authorised by that treaty. The Convention does not purport to authorise sister-ship arrest where the flag is that of a non-contracting state. Thirdly, an international convention or treaty cannot lawfully bind to its detriment a state which is not a party to it save only by the inclusion of terms therein comprising a re-statement of universally accepted provisions of customary international law. The concept of sister-ship arrest does not come within that exception. Prior to the Convention it was not a generally accepted procedure sanctioned by law in all maritime states.

Accordingly, for the reasons I have already stated in my judgment in MT "Marshal Gelovani" supra and amplified herein, I am satisfied that there was no justification in law on foot of the Convention or otherwise under Irish law, for the arrest of the MV "Kapitan Labunets" and I direct that she be released forthwith.