Embargo Preventivo de Buques en España (Eng.)

Spain is party to the 1999 Geneva International Convention on the Arrest of Ships.  The internal legal framework and procedure for an arrest is contained in the LNM and the Civil Procedure Act.  Ships sailing under the flag of a country that has not ratified the 1999 Geneva Convention can, in principle, be seized for any type of credit.  Spanish ships can be also seized for any type of credit if the creditor is Spanish.

An application must be filed by the claimant before the Commercial Courts of the port at which the vessel is located or expected.  For such purposes, an application requesting the arrest of the vessel and stating the existence of the claim will suffice, together with a general power of attorney for litigation.  The application must also offer the provision of countersecurity, the amount of which shall be determined by the tribunal at its sole discretion.  The LNM establishes a minimum bail of 15% of the total amount of the alleged claim.  Once the application has been filed, the Court will issue an arrest order, fixing the amount of the countersecurity to be provided by the claimant.  The countersecurity is held by the Court in order to cover any damages and expenses resulting from the arrest were it to be declared null and void.

HNS NorwayOnce the counter-guarantee has been provided, the arrest is notified to the vessel.  The arrest order provides the creditor a term (between 30 and 90 days) within which to validate the arrest by presenting evidence that the main proceedings have been brought before the relevant judicial or arbitral tribunal.

Arrest for bunker supplies is possible pursuant to article 1, section I of the Arrest of Ships Convention; however, claims are limited to those bunkers supplied to the shipowner since, under article 3.3, arrest of a vessel that is not owned by the person liable for the claim will be allowed only if, under the law of the state in which the arrest is applied for, a judgment in respect of that claim can be enforced against that ship by judicial or forced sale of that vessel, and the 1993 Geneva Convention on Maritime Liens and Mortgages does not consider the claim for bunkers as a lien.

The debtor may oppose the arrest and, in the event that the arrest is held to be illegal, the claimant may be made to pay damages and expenses.  The LNM does not contain a particular procedure to be followed by the debtor to oppose to the arrest.  Hence, in principle, general rules contained in the Spanish Civil Procedure Act ruling precautionary measures shall be of application.

San Simón & Duch

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