A filed a precautionary attachment procedure against B, applying to the Maritime Court of Lisbon to order the seizure of the vessel Anima, as well as B's other property, bank balances, tax credits etc, up to a limit of EUR 10,346.17 plus interest due, for A's claim. The Court rejected A's application, on the basis that at that time the vessel was sailing in foreign waters, and the Court was therefore incompetent to issue the order.

A appealed to the Lisbon Court of Appeal, arguing that this vessel sails through Portuguese maritime waters, is registered in Portugal, and also sails through Spanish, French, Italian, Greek maritime waters, etc. Both A and B are Portuguese companies headquartered in Portugal, and B's obligation to A must be fulfilled in Portugal. Which would then be the competent Court? The Italian Court? But by that time, the vessel would already be in the maritime waters of another country; an action would have to be brought in this other country, but after two days the vessel would already be in another, and so on. In short, the legislator would have consecrated a right to the creditor - to guarantee its claim through the attachment of the vessel - which the creditor would never be able to enforce.

A further argued that the Court's refusal to register the attachment and give orders to the Portuguese Captaincies to seize the vessel when it docked in one of the various Portuguese ports meant that the legal basis for the attachment regime was not achieved. Moreover, it should be noted that the preamble of Decree-Law No 201/98 of 10 July states:

The principle is enshrined that the arrest and attachment of a ship and goods can be carried out even if the ship is already dispatched for travel, thus adopting the solution of the International Convention for the Unification of Certain Rules on the Arrest of Sea-Going Ships, signed in Brussels on 10 May 1952.

And under the terms of art 9.1 of the aforementioned DL, the ship may be arrested or pledged even if it is dispatched for travel. On the day that A provided the information for the case file, the ship was on a voyage, after which it would return to Portuguese ports.

Held: Appeal allowed. The contested decision is revoked and replaced by another decision which holds that the Maritime Court of Lisbon has international competence and orders that the case file be followed up with the assessment of the initial application and further processing.

The contested decision found that:

it appears that the pleasure craft to be arrested is sailing in the sea of Sardinia, in Italy, completely outside the jurisdiction of this Maritime Court. The latter, therefore, has no jurisdictional competence to carry out the required attachment, since we are not facing any of the situations referred to in arts 59, 62, and 63 of the [Code of Civil Procedure (CPC)], as what is at stake is an injunction for arrest and not an action.

It is through an analysis of the cause of action and the application that the jurisdiction of the court must be assessed, whether it be absolute or relative. Hence, the issue of the (in)competence of the Portuguese courts only becomes relevant when the case brought to court presents any connection with another foreign legal order, maintaining, even so, a connection with the Portuguese legal order. For this reason, the international jurisdiction of the Portuguese courts results from a set of criteria attributing jurisdiction established in the CPC and in international Conventions, and which are particularised in arts 59, 62, and 63 of the CPC.

Article 59 of the CPC provides:

Without prejudice to what is established in European regulations and in other international instruments, the Portuguese courts are internationally competent when any of the connecting elements referred to in articles 62 and 63 are verified or when the parties have attributed competence under the terms of article 94.

Article 62 of the CPC provides in turn that:

Portuguese courts are internationally competent:

a) When the action can be filed in a Portuguese court according to the rules of territorial jurisdiction established in Portuguese law;
b) When a fact that serves as the cause of action in the claim, or any of the facts that form part of it, have occurred in Portuguese territory;
c) When the invoked right cannot become effective except through a lawsuit filed in Portuguese territory or there is appreciable difficulty for the plaintiff in filing the lawsuit abroad, provided that between the object of the dispute and the Portuguese legal order there is a weighty element of connection, personal or real.

With regard to the specific case, it should be noted that we are dealing here with a precautionary attachment procedure brought by A, based in Cascais, Lisbon, against B, based in Funchal, Madeira, and where the seizure of a vessel belonging to B etc is sought, on a claim based on the breach of a contract for the maintenance and tourist exploitation of the aforementioned vessel in Portugal, where B has not paid all the amounts due to A.

From the combination of the cause of action and the application, it can be concluded that there is no connection with any other legal order than the Portuguese legal order, with the location where one of the assets to be seized is located being irrelevant for the purposes of assessing international jurisdiction. In fact, this circumstance can only assume relevance at the time when, if the attachment is decreed, there is a need to proceed with the seizure of the vessel.

The Court below confuses the international competence of the Portuguese courts with the possibility of carrying out the attachment requested outside the national territory, forgetting, on the one hand, the procedural object at issue in the file, and, on the other hand, the existence of other assets, the seizure of which is requested (bank balances and tax credits).

Particularly relevant to this conclusion is the fact that the vessel to be seized is owned by B and is therefore registered in its favour. It is necessary to comply with the provisions of art 9 of DL 201/98 of 10 July, in terms of which the ship may be arrested or pledged even if it is dispatched for travel. It should also be noted that art 768(4) of the CPC allows the attachment of a ship dispatched for travel to be carried out, noting that this attachment is followed by notification to the Captaincy, so that it seizes the respective documents and prevents the departure of the vessel, further establishing in arts 769 and 770 of the CPC the circumstances in which the seized ship will be permitted to sail. The combination of these legal norms clearly results in the possibility of seizing and arresting vessels even when they are not moored.

Consequently, the fact that the vessel in the case file is sailing outside the territorial waters of Portugal does not determine the international lack of jurisdiction of the Portuguese courts, given that, even if that were the case, the case file would in any event have to proceed in view of the existence of other assets, the seizure of which is requested.

Furthermore, even if it were understood that there was any connection with another legal system originating from the vessel's navigation location, the Portuguese courts would still be competent under the provisions of arts 59 and 62(a) of the CPC.