Right before the Spanish Shipping Act of 2014, the procedural aspects of ship arrest were regulated by the Spanish Code of Civil Procedure and in particular by its 26th Final Provision.
Whilst overall respecting the previous regulation of ship arrest, Articles 470 to 479 of the new Spanish Shipping Act introduce some minor changes that facilitate the arrest and provide more legal certainty. These changes are basically four:
- The competent Court for the arrest will not only be the one of the port where the vessel is located or the competent Court for the claim on the merits (also known as the substantive claim) but also that of the port where the vessel is expected to call.
- National vessels can be arrested not just for maritime claims but also for other claims when the creditor, or his or her assignee, is domiciled in Spain. In these cases, the particularities of the ship arrest, such as the presumption of the “periculum in mora” and the urgency, which are not general Spanish principles, will also be applied. The law provides, however, that in those cases, the arrest may be substituted by a note in the vessel’s record in the Ship Registrar.
- The enforcement of the ship arrest is left to the Harbour Master’s office of the port where the vessel is arrested. This eliminates the need to enforce through intermediary courts if the arresting Court is not the competent Court for the port in which the vessel is located.
- Counter security to be required to the arrestor, which remains at the arresting court’s discretion, cannot be set in less than 15% of the alleged claim.
With these new changes, the new regulation of the ship arrest in Spain can be summarized as follows:
- Ship arrest will be regulated by the International Convention on the Arrest of Ships (Geneva, 1999) and, in the absence of an express provision, by the Spanish Code of Civil Procedure.
- Ship arrest means the detention of a national or foreign vessel or craft.
- Ship arrest cannot be requested in other to provide security for a judgment or an arbitration award that has already been issued or delivered.
- The competent Court for the arrest will be the Court with competence over the substantive proceedings, or the Court where the vessel is located, the. Court of the port where the vessel is expected to call will also be competent for the ship arrest even if the vessel is not physically there. This Court will cease to be competent if the vessel finally does not call at such port.
- The arrest will be granted in the case of maritime claims as defined in Article 1 of the Ship Arrest Convention. National vessels may also be arrested for other non-maritime claims under certain circumstances.
- It is not necessary to provide evidence of the claim, only to allege its existence and cause.
- Although the arresting Court will have discretion to decide on the amount of the counter security to be deposited at the court’s account by the arrestor, this will be at least 15% of the alleged claim.
- Urgency and “periculum in mora”, which are necessary requirements for any conservatory measure in Spain, are presumed in a ship arrest. There is no need to prove them.
- The enforcement of the ship arrest is to be carried out by the Harbour Master to whom the Court will notify directly the decision.
- Spanish Courts will now provide a period of no less than 30 days but not more than 90 days for the arresting party to lodge the claim on the merits before the competent court if such court is a foreign court. However, there is no special provision for when the competent court is a Spanish one. Given that the general provision in the Spanish Code of Civil Procedure establishes a period of 20 days to lodge the claim on the merits for general conservatory measures, it is possible that Spanish courts will follow that provision when such proceedings are to be lodged in Spain. There is no clarification in the Act as to whether those days are natural or labour days.
- In order to lift the arrest, in the absence of an agreement with the arresting party, the arrestee will need to deposit in cash the amount of the claim as contained in the arrest order or alternatively to submit before the arresting court a bank guarantee issued by a Spanish Bank.