August: CIRCULAR 13A/2001


Ship arrest in Spain can be applied for under the 1952 Brussels Convention on unification of certain rules on arrest of sea-going vessels or under the new Civil Procedure Law 1/2000.

The 1952 Convention is interpreted with our three-article domestic law 2/1967 on ship arrest of foreign vessels. According to this law, which will be always of application when the ship arrest is applied for, the party pursing the arrest only needs to allege one of the listed credits in article number one the 1952 Convention and the Judge will request this party a sufficient security to cover possible damages.

COMPETENT COURT. The competent Spanish Court will vary depending on whether a legal proceeding or an arbitration has already been started in Spain or in outside Spain and on whether there is a jurisdiction clause to a foreign Court or to a Spanish Court or whether there is no jurisdiction clause. There is now a contradiction between our new procedure law and the 1952 Convention regarding competence however and following the preference order, the Convention should be always first applied.

POWERS OF ATTORNEY. The company or individual wanting to arrest a vessel in Spain need Powers of Attorney which, once duly legalised and apostilled, will have to be provided to the Spanish Court. It is however possible to initially provide a copy or a faxed copy of the POA if the original are then provided.

SECURITY FROM THE ARRESTORS. Prior to agreeing the arrest of the vessel, the Spanish Court will request from the company or individual applying for the arrest a security which will have to be sufficient to cover possible damages. This security can be of any type of the securities accepted by Spanish law, including a bank guarantee. The Judge has a discretionary power to fix the amount of the security so therefore the amount will vary in accordance to each court subject to a certain minimum which obviously needs to be complied with.

SECURITY TO RELEASE THE VESSEL OR COUNTER SECURITY. The arrest can be released by providing a counter security. This security can be either cash, bank guarantee, insurance bond or any other security that according to the Court criteria can guarantee immediate availability. The amount of this security is again discretionary to the Judge so it can vary from a 25% to a 50% or even a 110% amount of the claim being guaranteed by the arrest.

HEARING. The hearing, which as a general rule has to take place before adopting the order to arrest the ship, can be avoided when there are urgent reasons to proceed with the arrest. Therefore the arrestor will have to provide enough evidence to the Judge that the vessel will be only calling for from a few hours to one or two days in order to avoid the hearing.

RATIFICATION OF THE ARREST. The arrest will have to be ratified by initiating a law suit before 20 days. Otherwise the arrest will have no effect and the arrestor will be condemned to pay the legal costs and all the damages that have been caused to the vessel’s interests. This temporal limit of 20 days is not applicable in those cases where an arbitration is involved. It is neither applicable when there is a jurisdiction clause applicable to the parties as in such case the Judge or Court can fix a different time limit.

COSTS TO ARREST A SHIP. These costs will include lawyers and procurators fees. The lawyers’ fees are usually regulated by the Bar Associations’ rules and may vary from one city to another. However, there are no minimum fees ruled only orientated rules. The procurators’ fees are established by law. These fees can be recovered from the defendants although they are not always monetary secured under the arrest.

It should be finally noted that whilst a ship arrest can be prepared in less than 24 hours the security to be provided by the arrestors stands as the greatest time impediment to obtain a ship arrest order. If the security is not arranged in advance, which is difficult given that the Judge establishes its amount, a vessel calling to Spanish ports on holiday or bank days or even during banks’ non-working hours will be luckily not arrested.