The plaintiff applied for the arrest of the Tomarense in the Maritime Court of Lisbon, claiming for services provided to the vessel. The court of first instance rejected the plaintiff's application, holding that there was no periculum in mora (fear in delay) in the sense that the plaintiff was entitled to payment of interest on any unpaid sums. The plaintiff appealed to the Lisbon Court of Appeal.

Held: Appeal dismissed, but for different reasons.

According to art 1.1.l of the International Convention for the Unification of Certain Rules for the Arrest of Ships at Sea, Brussels, 10/5/1952 (cf DL No 41007 of 16 February 1957) 'maritime claim' means a claim arising out of one or more of the following: 'construction, repair or equipment of any ship or dock charges and dues'. However, as we will see below, the Convention has no application here.

Article 3 of the Arrest Convention 1952 does not require, in order for seizure to be decreed, proof of fair fear of loss of security, but merely proof of the existence of a maritime claim.

In this case, it cannot be proven that the Tomarense was owned by the debtor at the relevant time. The arrest, under the terms of art 601 of the Civil Law, may only relate to the debtor's assets, since they guarantee the fulfilment of the debtor's obligation. The Tomarense is a Portuguese vessel. That being the case, the abovementioned Convention does not apply to the present case. This results from the provisions of art 8.4 of the Convention: 'Nothing in this Convention shall modify or affect the rules of law in force in the respective Contracting States relating to the arrest of any ship within the jurisdiction of the State of her flag by a person who has his habitual residence or principal place of business in that State.' Accordingly, the property intended to be forfeited is no longer in the patrimonial sphere of the debtor, which is the reason why the requested measure cannot be decreed.

One last comment is necessary: ​​it has been proven that Tomarense is a local and river traffic and freight vessel. The defendant argued that the Convention could not apply to the present case because the Tomarense is a barge and not a ship. That is not why the Convention does not apply. Although the Tomarense is a barge, it is still considered as a ship, taking into account the provisions of art 1 of the abovementioned DL 201/98 of 10 July, according to which a ship is any floating craft intended for navigation by water.