Arresting a ship in Spain, by Felipe Arizon
Paseo de Reding 43, Bajo Izq.
29016 Malaga (Spain)
Tel: +34 952 21 17 74
Fax: +34 952 22 66 76
felipearizon@aacni.com
The applicable law:
A ship arrest in Spain might be applied for under two different legal regimes; the 1952 Brussels Convention on unification of certain rules on arrests of sea-going vessels, which has to be interpreted in connection with the 2/1967 Spanish law on ship arrest, or under the Procedural Law Act 1/2000, arts 721…
Whereas under the former legal regime the party pursuing arrest needs only to allege one of the credits listed under article 1 of the said Convention, under the latter the claimant needs to provide the Court with a “fumus boni iuris” and a “periculum in mora”. On the other hand the credits that can be secured by this second via are not “numerus clausus”.
Power of Attorney
The arrestor needs to provide the Court with a duly issued POA, a faxed copy shall at first suffice.
Security:
The Courts will request from the arrestors security for the possible damages that might be accrued should the arrest be declared unlawful. Security is usually to be provided by means of bank guarantee. The judge has a discretionary power to fix the amount that needs to be secured. This amount varies in accordance to each court and mostly to its geographical location, subject to certain minimum that needs to be complied with.
Whilst an arrest can be performed in 24 hours since the clients´ first call. The security to be provided stands as the greatest time-impediment to perform a ship arrest. Thus it is advisable, where possible, for the claimants to arrange the security in advance.
The ratification of the arrest:
The arrest has to be ratified by pursuing an action for the claimed amount, all in all in accordance with the 1952 Brussels Convention rules, the Brussels Convention of 1926 on maritime mortgages and maritime liens (in force in Spain), or under the general principles of legitimation within Spanish law, as the case may be.
The usual period for the presentation of the lawsuit consists of 20 judicial days. The claim can be ratified in another jurisdiction in accordance to the forum chosen within the contract under which the claim is brought, including arbitration[1].
The release of the vessel
The arrested party may release the ship by providing the court with enough security covering the claimed amount, which may include the legal fees of the attorneys.
Costs of a ship arrest in Spain.
Attorneys and procurator fees are regulated by the professional associations rules. The same are accrued according to a percentage of the claimed amount, percentage that is scaled down as the claimed amount is higher. Both fees are in principle recoverable from the defendants, though not always monetary secured under the arrest.
- This article provides for a general overview only and must not be relied upon as constituting advice in any specific case. Advice should always be sought before taking steps in proceedings - .
[1] Vid Court of Appeal of Asturias 19.02.93, where it was held that an arrest could be ratified by commencing the proceedings in arbitration. The Court of appeal had no objection to grant the arrest in accordance to the 1952 arrest Convention, and art VI of the 1961 European Convention on commercial arbitration (Geneva).