Our country, mainly because of its geographical and strategical positioning in the map as a port of entrance to the Mediterranean from the Atlantic Ocean and due to its almost 5.000 miles coastline length has been traditionally an important jurisdiction for ship arrest and embargo of vessels.
The arrest of a vessel is a precautionary measure adopted as guarantee of a judicial resolution which means the ship is not authorised to move physically from the mooring, berth, dock, or anchor of the port in which she is lying in order to avoid unpaid bills, wages, credits, mortgages and certain type lo liabilities considered as maritime claims.
The actual regulation in the Spanish Law on this matter follows the international legislation started in 18 December 1997 when the General Assembly of the United Nations, by resolution 52/182, called the convening of conference in order to consider and adopt a convention on arrest of ships. Following this dictate the United Nations (UN) and the International Maritime Organization (IMO) held in 1999 an International Diplomatic Conference on arrest of ships in Geneva giving as a result the International Convention on Arrest of Ships (ICAS) from the 19th of March of 1999.
Since the ratification of required minimum of 10 treaty members of the Convention – among them Spain, not like the UK who signed it but has still to ratify it – this entered in force in 2012 and so the provisions of the ICAS where included in the Spanish legislation, particularly in our Civil Procedure Act in the new 26th final provision (Disposición Adicional 26º Ley Enjuiciamiento Civil) being this regime of international al arrest on vessels the only applicable to ship arrest for maritime claims in Spain no matter which the flag vessel might fly.
There are three requirements for arresting a vessel according ICAS:
- the claimant must be holder of a maritime claim, that is a claim arising out of the natural activity of the vessel (art. 1 ICAS include 22 different cases being the most relevant: material or personal losses or damages caused by the operation of the ship, , mortgage, salvage, repair and refit works, charter, crew wages, etc. )
- the debtor must be considered ship owner (but if not, that, the claim might be considered privileged claim)
- the claimant places a deposit for covering possible damages and liabilities derive from the arrest.
The procedure of arresting the vessel and its relief shall be done according the Law and at the jurisdiction where the vessel is laying (art.2 ICAS). Also the Court that has been dealing with the arrest is the one that shall carry on with the main claim. In Spain the Mercantile Courts (Juzgados de lo Mercantil) are the ones that deal with arrest and embargoes of vessels because of maritime claim and we must say that they are quite quick; we have seen in some cases only 7 days from the date the claim was filed since the sticker of the Guardia Civil on the engine or in the entrance door from the vessel was attached.
Carlos Espinosa – Solicitor & Tax Adviser
+34 627 41 32 01 – firstname.lastname@example.org