Judicial Proceeding at the Commercial Court
The Process of Ship Arrest and Ship Release in Spain
The judicial proceeding of attachment lien consist in a short complaint to arrest the ship and an answer as opposition to release it. The nature of the credits and debts as well as who is the real debtorof the maritime claims or liens, have to be judged in the attachment lien process. In all declaratory cases could be possible two instances (commercial Court and Appeal Court).
As stated art. 2.4.º ICAS/1999, the judicial proceeding of ship arrest before our Courts will follow the provisions of the Spanish Civil Procedural Act 1/2000 (Lex fori).
According with the provisions of art. 7 ICAS/1999, the Spanish Courts and Tribunals have competence when the Ship is arrested in Spain.
Article 1.2 ICAS/1999 stands tha ‘Arrest’ means a preventive seizure (a prior ordinary process is require). So ship arrest is in all cases preventive, not executive. Only certain maritime liens, credits and circunstanced can give right to a direct Forced Sale of the Ship.
Following with the example case (vessels on exploitation are linked to a bareboat charter contract, expossed in the Ship Release page), there are several means of opposition and new legal means of pressure against possible claimants. In particular the damages action of art. 6.1.º ICAS/1999 (Protection of owners and demise charterers of arrested ships).
And, in the case that the opposition does not progress adequately, the Court would be also competent to know about the principal pleading (forum arresti).
However, we have to remember that we apply the European Union Laws in force, as the Council Regulation (EC) N.º 1215/2012, of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), pubished in the Official Journal L L 351/1, 20.12.2012.
Applicable Law on Ship Arrest in Spain
National Laws, EU Laws and International Conventions to bear in mind
- The new Maritime Navigational Act 2014 (Articles 470 to 479 MNA/2014) .
- Supplementary, the Spanish Civil Procedural Act, 2000 (CPA/2000), to be apply to the attachment lien procedure (Articles 721 to 747 CPA/2000) and to the commercial and civil main one (all the code, particularly Articles 248 et. seq.)
- The Spanish Civil Code (CC/1888).
- The International Convention on Arrest of Ships, adopted in Geneva in 1999, in a United Nations / IMO Conference (ICAS/1999).
- The International Convention on Maritime Liens and Mortgages, done in Geneva, in 1993, by a United Nations / IMO Conference too (ICMLM/1993).
- The Council Regulation (EC) N.º 1215/2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
- Other EU regulations, directives and conventions, as the Regulation (EC) N.º 593/2008, on the law applicable to contractual obligations (Rome I).