csba@csbadvogados.pt
Rua Castilho, 71 – 2 Dt
1250-068 Lisbon, Portugal
Tel. +351 21 384 62 00
Fax + 351 21 386 17 35

Overview

1. Please give an overview of ship arrest practice in your country.

Ship arrests are common in Portugal and such a fact is not surprising taking into account its extensive coast, strategic location and key importance of navigation throughout its history.

Ship arrests are a provisional remedy envisaging a court decision pertaining to the collection of a debt though the seizure of assets. Indeed, according to Portuguese Law, the arrest petitioner must provide the court with the facts that show a serious probability that the claimed credit does exist and in addition demonstrate the risk of losing the guarentee (“fumus boni iuris” and “periculum in mora”).
Ship arrest under applicable international Law does not require evidence of “periculum in mora”, but the creditor must still evidence the apparent existence of the claimed credit.
In the aforementioned cases it is not required evidence of the credit’s existence, it is necessary to demonstrate that there is a serious probability that the credit indeed exists.

Considering the provisional nature of this “legal instrument” it is also important to emphasise the relevance of its link to the declaratory procedure, since, it has to be filed by the petitioner within 30 days after the notification of the arrest decision or in another deadline if requested by the petitioner and ordered by the maritime court. If the petitioner does not act accordingly the arrest / provisional remedy it is extinguished. 

Applicable Laws

2. Which International Convention applies to arrest of ships in your country?

The International Convention for the Unification of Certain Rules relating to the Arrest of seagoing Ships of 1952 (below simply referred to as 1952 Convention) is applicable in Portugal to the arrest of foreign ships.

An additional number of particularities arise from Portuguese law, namely from articles 406 and 409 of the Civil Procedure Code and the article 619 of the Civil Code.

It is in accordance with the aforementioned laws that the competent entity, i.e., the Maritime Court orders the arrest of ships.

3. Is there any other way to arrest a ship in your jurisdiction?

No. In Portuguese territory the only way to arrest a ship is trough the legal instrument aforementioned. The entire legal basis mentioned are specifically referred to ship arrest and therefor these legal issues do not find solution in any other law. The arrest of ships in Portugal must be requested before the Maritime Court through the initial petition.

4. Are these alternatives e.g. saisse conservatorie or freezing order?

In Portugal the debtor can only stop a ship from leaving the country trough a saisse conservatoire since the national legal system has specific laws for this kind of situations. This legal instrument will allow the creditor to secure his credit’s payment keeping an asset (ship) well located.  

Claims subject to ship arrest

5.  For which types of claims can you arrest a ship?

In accordance with the 1952 Convention, namely article 2, ships can only be arrested in the jurisdiction of another State in respect of a maritime claim.
However the Convention does not overlaps or restring the internal laws and any national regulation of the State concerning ship’s arrest.  

Regarding the above mentioned we can conclude that the Maritime Court is competent to arrest ships, whether Portuguese or not, in accordance with both Portuguese and International Law, namely the aforementioned 1952 Convention.

It is important to emphasise that although in some cases the Portuguese Courts may not have jurisdiction to decide on the merits of the claim, the arrest of ships in Portuguese waterways is possible, under the 1952 Convention. Should this be the case, the prerequisite of the maritime nature of the underling claim must be in place in order for the Convention to be applied, although it is not required demonstration of the “periculum in mora”, as it is presumed to exist.   

6. Can you arrest a ship irrespectively of her flag?

Yes. Since the Portuguese and International Law does not forbids the arrest of a vessel concerning his flag, through a reverse interpretation we can conclude that a ship can be arrested irrespectively of his flag.   

7. Can you arrest a ship irrespectively of the debtor?

Yes, is possible in some situations to arrest a ship irrespectively of the debtor.

For example, the paragraph 1 of the 3rd article of the 1952 Convention allows, a Claimant to request the arrest of either (i) the ship in respect of which the maritime claim arose, or (ii) any other ship owned by the person who was, at the time when the maritime claim arose, the owner of the ship (responsible for the maritime claim).
This situation is possible even though the ship arrested be ready to sail. However no ship, other than the particular ship in respect of which the claim arose, can be arrested in respect of any of the maritime claims enumerated in Article 1 (1) (0), (p) or (q) of the 1952 Convention.

Another example, is stated in paragraph 4 of the 3rd article of the 1952 Convention, referred to situations of ship freight with nautical management transfer, which allows, (when the only responsible for the maritime claim against that vessel is the charterer), the arrest of that specific ship or any other owned by the charterer. 

8. What is the position as regards sisters ships and ships in associated ownership?

Regarding sister ships, the paragraph 1 of the 3rd article of the 1952 Convention allows the arrest of the ship in respect of which the maritime claim arose and also of any other vessel owned by the same person / company.

Regarding ships in associated ownership, the Portuguese legal system allows the arrest of ships in associated ownership, once there is not a law forbidding it.

9. What is the position as regards Bareboat and Time-Chartered vessels?

There is a difference between these two types of charter contract. In a Time-chartered vessel the petitioner can request the arrest of the vessel from which the maritime claim arose or of any other vessel owned by the charterer. In a Bareboat Chartered vessels the only asset/ship that can be arrested is the vessel from which the maritime claim arose.