The Maritime Client Law does not specify the grounds for the seizure and confiscation of vessels during war. These are found in customary international law. Without elaborating on all the rules of customary international law dealing with the laws of war, we should note that in 1988 - 1994 International experts formulated the accepted principles of public international law regarding the laws of war. These principles are known as the San Remo guide- San Remo Manual On International Law Applicable To Armed Conflicts At Sea 1994 (Hereinafter: Sanremo Guide).
- The San Remo Guide outlines the rules regarding the imposition of a maritime blockade (Article 93). For the purpose of enforcing the maritime blockade, the blockade state is granted various enforcement powers, including the power to detain ships, to inspect and search and even to seize (section 135). These powers are granted to the blockading state both vis-à-vis enemy state vessels (Chapter 4) and neutral vessels (Chapter 6). However, it should be recalled that the distinction between an enemy vessel and a vessel of a neutral party to the conflict is not always clear, and Article 117 states that:
Enemy Character can be determined by Registration, Ownership, Charter or other criteria.
- The Maritime Client Law does not include the relevant procedural provisions for client proceedings and these can be found in the Client Regulations 1939 (Prize Court Rules 1939). These regulations deal not only with a maritime customer, but also with the seizure and confiscation of aircraft, but for this purpose the provisions dealing with vessels are sufficient.
- As has been noted more than once in the past, a claim for confiscation of a vessel is an object claim, i.e., a claim directed against the vessel and is based on the liability of the vessel owner, its crew or anyone authorized to act On behalf of the owners (see Hefetza claim 26861-08-13, supra, paragraph 50; Civil Case 732/96 (Haifa) The Ship Ellen Huding N. Bankruptcy Trustees of Conteinerline ABC (22/4/2004); Civil Appeal 7138/16 PRAXIS ENERGY AGENTS GMBH v. The Ship M/V CAPTAIN HARRY (07/05/2018)).
- In a confiscation lawsuit, the state turns to the court with a request to ratify the seizure, to receive instructions on how to operate the vessel and to issue an order to confiscate it. In such a proceeding, anyone interested in the vessel may appear and defend himself against the confiscation claim. The 1939 Regulations provide in the Third Order, Section 1 as follows (ORDER III):
Subject to the provisions of rule 18 of Order II any person desiring to enter an appearance in a cause shall enter an appearance (Appendix A, Form No.8) in the Registry within thirty days after service of the writ, or may by leave of the Court do so at any time before final adjudication. He shall thereupon become a party to the cause.
- Prima facie, anyone who appears on behalf of the ship is entitled to object to the confiscation claim, whether in the framework of a response to the claim or at a later stage before a decision is made on the claim. In Israel, the question of who is "authorized" to appear on behalf of a vessel that has been seized and brought to court under the Maritime Client Law has not yet been discussed, what is the required connection between the entity and the vessel, and whether it is sufficient to be a creditor of the owner to enable him to appear and oppose the confiscation.
- To date, in every confiscation claim heard in the Maritime Court, only the owner has appeared on behalf of the vessel, and therefore no rule has yet been established regarding the relationship between the confiscation claim and the rights of a third party in the vessel. It is also difficult to find a reference to these questions in foreign rulings. However, discussions can be found in a number of English judgments from the First World War period in which the relationship between the confiscation claim and the claim was discussed. Creditors Contracts of the owners of all the boats (See Matter The Odessea [1916] 1 A.C 145); Marie Glazer [1914] P. 218 The)). These rulings indicate that only a creditor who claims a right A proprietor of the vessel can claim the priority of his right over the right of the state to confiscate the vessel and demand full ownership of it. In later rulings, the courts in England also recognized the right of a creditor in whose favor a valid maritime lien stands, such as a maritime lien in respect of salvation (salvage) (see France Fenwick Tyne and Wear Co. Ltd. v. HM Procurator General [1942] AC 667).
- The aforesaid should be qualified and it should be emphasized that recognition of the right of the lien of a third party is liable to harm the purposes of the confiscation and thwart the entire confiscation process. Moreover, there is concern that the owner of a vessel, who knows that he may be caught and asked to be confiscated, will try to evade the confiscation process by creating liens. Therefore, it is clear that to the extent that the court is required to decide the competition between the right of confiscation of the state and the rights of a secured creditor in a maritime lien, it will be necessary to examine the circumstances of the creation of the lien and to establish precedents regarding the decision in such a competition. These issues have not yet been decided in Israeli case law, and a decision on them is not required at this stage of the proceeding, and therefore I will suffice with the general comments above.
The decision is in the
- The application before me is a request to join the proceeding. The applicants do not clarify in their application what law permits them to join the proceeding; They do not claim that they have the right to appear on behalf of the vessel under the Maritime Client Act and the Maritime Client Regulations of 1939; They do not claim any proprietary right in the vessel (but rather an "economic right" in the vessel, section 5 of the application to join); and they do not claim that they have grounds for suing an object against the vessel. Although this is sufficient to bring about the rejection of the application, we will examine the possibilities of joining in accordance with the provisions of the Client Law and the Client Regulations of 1939 and in accordance with the Rules of Procedure.
The Client's Law and Regulations
- As we have seen, the Client Law and the 1939 Regulations recognize the possibility of interested parties to join the client proceeding and appear on behalf of the vessel. The applicants do not petition to do so, but it is clear that even if they wished to appear on behalf of the vessel or some of them and object to the transfer of the property to the state, they would not have been permitted to do so.
- As stated above, paragraph 27, English law limited the right to join only the party seeking to protect a proprietary right recognized in English law in the vessel. An ordinary creditor of the owner cannot appear on behalf of the vessel and object to its confiscation. The applicants do not claim a property right in the vessel; They do not claim a recognized lien or any proprietary interest in the vessel. The applicants are ordinary creditors of the person who is alleged to be the owner of the vessel in whose favor a foreclosure order was issued by a third party. A foreclosure order does not confer an interest in the vessel; The purpose of the foreclosure order is to prevent the transfer of the rights therein and to allow the foreclosure to be repaid from the consideration received in its sale. Thus, for example, it is said Other Municipality Requests 8622/13 National Insurance Institute v. Shachar, paragraph 13 (7/9/2016):
It is correct to emphasize that the imposition of the foreclosure in itself does not confer a substantial right in the foreclosed property in favor of the winner. The foreclosure is only a procedural tool for the purpose of realizing the substantive right, which is the debt of the debtor, the owner of the property (Civil Appeal 189/95 Otzar Hachayal Bank in Tax Appeal v. Aharonov, IsrSC 35(4) 199, 234 (1999) (hereinafter: the Aharonov case)). As noted: "The imposition of a foreclosure does not encumber the debtor - the property that is foreclosed, but the foreclosure only prevents the property owner from removing it from his foreclosure or encumbering it to another" (Civil Appeal 382/65 Sigalov v. Etzion, Woodworking Cooperative Ltd., IsrSC 20(1) 442, 446 (1996)). Therefore, as long as the proceeds of the foreclosed debt have not been collected from the owners of the property or the third party holding it, the status of the foreclosure beneficiary is the same as that of a foreclosure that has commenced proceedings and does not have any proprietary right in the property (David Bar Ophir Execution - Proceedings and Rules 572 (2015) (hereinafter: Bar Ophir)). As stated, the stage of imposing the foreclosure is separate, and the stage of realizing the foreclosure separately. An order to foreclose the property confers only a kind of negative procedural right, and only by the realization of the foreclosure can bring about a positive right to the creditor of the foreclosure. The act of imposing a foreclosure is nothing more than a "seizure", conceptually-legally, by the court or the Execution Office, on a certain property, from which the debt will be collected [...].