Agrox SA (the plaintiff) claimed for cargo damage against Seagull Navigation Ltd (the defendant). One of the defendant's vessels, the Agios Nikolaos II, was previously arrested for this claim in another court. The defendant denied liability for the damage and alleged the application of an arbitration clause. The first instance Court refrained from deciding the claim based on that clause. Regarding the arrest, the Court ordered that the vessel's arrest be maintained for three months in which the plaintiff/arresting party must commence the arbitration, according to art 7.3 of the International Convention Relating to the Arrest of Sea-Going Ships 1952 (the Arrest Convention 1952). Both parties appealed, and the Court of Appeal affirmed the decision. This defendant recurred the decision in cassation before the Tribunal Supremo/Supreme Court (SC), alleging an incorrect interpretation of art 7.3 of the Arrest Convention 1952.

Held: The SC affirmed the decision. The defendant alleged that the decision exceeded the petitions of the plaintiff (ultra petita) because it did not request the Court to keep the arrest ongoing for the period of three months to allow the arbitration to be commenced. The SC stated that the plaintiff did not make such a claim because it did not consider the arbitration clause and submitted the claim directly to the civil Judge. It was the defendant who requested the application of that clause, a petition that was granted with cognisance of the provisions of the Arrest Convention 1952. The provisions of this Convention are of mandatory application as the arbitration clause binds the parties, preventing the courts to decide claims subject to arbitration when the interested party invokes the clause in a timely manner. The Court complimented the remittance of the claim to arbitration by establishing a period to commence arbitration proceedings as the Arrest Convention 1952 provides, providing a necessary integration of the judgment and according to the faculty granted by the international legal norm. The case law of the SC has established that orders in decisions to facilitate their enforcement are accessory and specific to their rational purpose without representing any incongruence.

The defendant also argued that art 7.3 of the Arrest Convention 1952 refers literally to the 'arresting party' and not to the 'plaintiff', making that rule inapplicable because it can only be applied by the court that executed the arrest. The SC rejected this argument stating that the plaintiff applied for the ratification of that arrest according to the civil procedure law assuming, therefore, the position of the plaintiff in the civil procedure and with the consequence of being affected by the arbitration clause. The period to commence the action, established according to art 7.3, applies to the party that holds the position of the plaintiff in the arbitration. Proof of the arbitration clause is sufficient for the courts to fix a period according to the international Convention without observing any other requirement, and that does not imply any abuse or violation of the norm.

The arrest does not determine the jurisdiction of the court that must decide the merits of the claim, because neither the Convention nor the local law so orders. Local procedure laws do not recognise the arrest as an efficient and decisive ground to determine the jurisdiction of the court, which is governed by the general norms, or, as in this case, according to a legal and valid agreement. Therefore, even if the Convention refers literally to the 'arresting party', that must be interpreted as also affecting to the party that holds the position of 'plaintiff' who must commence the available actions to claim the rights resulting from the contract. Article 7.4 of the Arrest Convention 1952 reaffirms this construction, as it protects the right of the arrested party by assigning to it the condition of 'defendant' in order to request the release of the arrest if the proceedings are not commenced within the established period by the court.