Ship Arrest in Mauritius: Legal Certainty Under the 1952 Convention in a Changing Maritime Landscape

The 1952 Convention and its implementation in Mauritius

The elaboration of the 1952 International Convention relating to the Arrest of Sea-Going ships (1952 Convention) to regulate the arrest of ships and especially foreign flagged ships in foreign jurisdictions responded to the need for a harmonised international approach to the ability to immobilise vessels and also providing legal certainty in shipping business. The 1952 Convention is a means to minimise the adverse implications that any disruption in the international movement of goods and vessels may have on ship owners, charterers, shippers and consignees. Article 1 of the 1952 Convention lists out classes of claims related to the ownership and operation of the vessel which, in the event they meet one or more of the definitions ascribed to “maritime claim”, can lead to the arrest of the targeted vessel.

Ship arrest or “saisie conservatoire” in Mauritius finds its roots in the 1952 Convention and French law. While both Mauritius and France are party to the 1952 Convention, Article 256-4 of the Mauritius Code de Commerce is a replication of the repealed Article 29 of the French decret no. 67-967 of 1967 relating to “saisie conservatoire” of vessels, currently caters for Arrest of ships in France is currently provided for under Article L.5114-22 of the French Code des Transports.

Similar to its French counterpart, the Mauritian jurisdiction caters for some level of flexibility in the scope of grounds of ship arrest. In line with the provisions of Article 8 of the 1952 Convention and Article 256-4 of the Code de Commerce, ships may be arrested in Mauritius where the Judge in Chambers is satisfied that a prima facie claim falling within the ambit of one of the maritime claims listed under Article 1 of the Convention has been demonstrated.

This legal approach to grant the conservatory measure based on the simple allegation of the existence of a maritime claim falling within one of the categories listed under the 1952 Convention is confirmed by the recent judgement of 10 September 2025 of the French Cour de Cassation ( Cour de cassation – Chambre commerciale — 10 septembre 2025 – n° 24-12.424) in the matter of a request for the main levée of an order of “saisie conservatoire” against vessel Imedghassen registered in Algeria and arrested in Sete, France. The Cour de Cassation upheld the “saisie conservatoire”, stating that the sheer statement to the Court that a claim meets the definition of one of the categories listed under Article 1 of the 1952 Convention is sufficient for the plaintiff to request for a “saisie conservatoire”. This Court decision also reasserted the fact that the statutory provision for the claim to be justified does not create a supplementary requirement for the claimant to establish that the claim is sufficiently founded.

In the scenario where a vessel flagged in a State which is not party to the 1952 Convention is arrested in Mauritius, Article 8(2) of the Convention provides that such arrest would be valid, where the claim meets the definition of one of the claims under Article 1 or is any other claim that the lex fori allows for. In the absence of any express additional ground mentioned under the Code de Commerce, the wordings of Article 256-4 seem to allow for a wide scope of interpretation of what may, in addition to the list under Article 1, be assimilated to a maritime claim. The plausible caveat for such a claim to be favourably considered by the Judge in Chambers, would be that it should align with the spirit of the international instrument, that is, the claim is maritime in nature and relatable to the ownership and operation of the vessel.

Sister ship arrest, associated ship arrest and the 1999 International Convention on Arrest of Ships

Sister ship arrest, or the arrest of a ship under the same registered ownership as the ship against which the claim has arisen, is an alternative remedy available to maritime claimants in Mauritius, in accordance with the provisions of Article 3 of the 1952 Convention. It is to be noted, however, that with the proliferation of one ship companies, the sister ship arrest provision will only be successful where the Court is prepared to lift the corporate veil and favour beneficial ownership over registered ownership. The 1999 Arrest Convention, on the other hand, which was meant to replace the 1952 Convention, has expanded the categories of maritime claims as an attempt to keep abreast with evolving maritime business hazards but nevertheless left the sister ship arrest concept untouched.

South Africa has gone one step further than the 1952 Convention with the Admiralty Jurisdiction Regulation Act 1983 whose revolutionary approach has introduced the possibility of associated ship arrest. Associated ship arrest offers a broader spectrum for the arrest of ships, enabling the arrest of ships where common control – as opposed to same ownership – of both the ship to be arrested and the wrongdoing ship at the time when the maritime claim arose is established.

Conclusion

Neither the South African concept of associated ship arrest nor the 1999 Convention has found many supporters among the international community. With the 1952 Convention being therefore still widely adhered to, despite its imperfections, it can be said that the regulatory framework in Mauritius remains aligned with the prevalent international rules and any intention to denounce the 1952 Convention to bring about legislative reviews on this matter warrants deeper examination.