In the November 1985 issue of this Journal there is a very interesting article written by Mr David R. Owen on the subject of United States maritime liens and the new arrest and attachment rules. On p. 436 Mr Owen deals with the problem of a security which under some systems of law must be provided in order for a plaintiff to obtain arrest of a vessel. He refers to the recent Lisbon conference of the CMI in May 1985. He quite rightly notes that the Scandinavian delegations pushed hard for a provision that the plaintiff be required to post security as a condition of making or maintaining an arrest. He then goes on to say: “The Scandinavians’ attitude was at least understandable in that they represented the shipowners’ position”. This I must say is a complete misunderstanding of the whole situation. It has nothing to do with Scandinavians being shipowners, it has very much to do with a general legal background which Scandinavian law shares with many other legal systems. In very general terms the situation is as follows.

Swedish law and Scandinavian law in general gives a creditor certain remedies to prevent a debtor dissipating his assets to ensure that at the end of the day when the creditor has obtained a judgment against the creditor there will be funds to meet such a judgment. One of these remedies is to demand arrest of property belonging to the debtor. Such a property might be a vessel, a motor car, goods stored in a warehouse, a bank account etc. In order to obtain an order of arrest the creditor must show the court that in all probability he has a valid claim in terms of money. He must also satisfy the court that there is a risk that the debtor will dissipate the assets, for instance in case of a ship remove the ship to the high seas. He must also put up a security with the court covering the damages which he may be ordered to pay to the creditor should at the end of the day the arrest be found wrongful, i.e. the creditor had no valid claim against the debtor.

The whole philosophy is that an arsenal of remedies is put at the disposal of the creditor. He may use those remedies at his peril. Should the court at the end of the day dismiss his claim he will have to pay the damage he has caused to the debtor by depriving the debtor of the use of the debtor’s assets. The Scandinavian attitude is certainly in line with what Mr Owen describes as “their preoccupation with the Mareva injunction, and particularly Lord Denning’s requirement of plaintiff’s security”. It occurs to me that Mr Owen has also misunderstood the purpose of Mareva injunctions but that is really a point for an English lawyer and not a Swedish one.

It should be added that “the Scandinavians” are very reluctant to make rules for arrest of ships which are substantially different from the rules governing arrest of other property. I cannot find that these Scandinavian attitudes are unique. Similar attitudes are found in other West European legal systems1.