This was an appeal brought by Baja Ferries SA de CV (Baja) against an order of the Court of first instance refusing Baja's application for the arrest of the MV Med Star, a Moroccan flagged-vessel owned by Inter Shipping Europe SL. Baja's claim was based on a debt that was owed to it, not by Inter Shipping Europe SL, but by Intershipping SARL. The debt derived from the breach by the latter company of a contract for the sale of another ship, the MV Caribbean Fantasy. Baja sought the arrest based on a subsequent lawsuit that it intended to pursue, regarding the need to lift the corporate veil of both entities to demonstrate the responsibility of Inter Shipping Europe SL for the debts of Intershipping SARL.

Held: Appeal dismissed.

Due to its special effects and harshness, ship arrest has certain characteristics that must be specifically met. Its regulation is established in art 470.1 of the Law on Maritime Navigation (the LNM) 14/2014, of 24 July, according to which:

The injunctive measure of arrest of ships, both Spanish as well as foreign, shall be governed by the International Convention on the Arrest of Ships, done at Geneva on 12th March 1999, by the terms set forth in this Act and, under supplementary terms, by those established in Act 1/2000, dated 7th January, on Civil Procedure. Such a measure shall necessarily involve immobilisation of the ship in the port where it is located.

In addition, the 26th final provision of the Law of Civil Procedure, referring to ship arrests, establishes that:

1. The injunctive measure of arrest of ships shall be regulated by the provisions of the International Convention on the Arrest of Ships, done at Geneva on 12th March 1999, and by the terms set forth in this Act. The provisions of the International Convention on the Arrest of Ships, done at Geneva on 12th March 1999, and this provision will also apply to ships flying the flag of a State that is not a party to said Convention.

2. To decree the arrest of a vessel, it will suffice to allege the credit claimed and the cause that motivates it. In any case, the court will require a deposit in a sufficient amount to respond for the damages, losses and costs that may be caused.

3. Once the arrest has been made, opposition may only be based on non-compliance with the requirements set forth in the International Convention on the Arrest of Ships.

From the legal regulation of ship arrest it follows that in order for it to proceed, the existence of a series of requirements is required:

1. The arresting party claims to be the holder of a maritime claim, that is, of a right of credit of which under the provisions of the Arrest Convention 1999, gives the right to arrest a ship.
2. The debtor holds the status of the owner of the ship to be arrest or that, if this is not the case, the alleged maritime claim has the nature of a maritime lien.
3. The arresting party pays a sufficient bond.

Regarding the first point, it is evident that the credit which arises in this case is not a maritime claim, which is the basis of all the regulations. Notwithstanding this, art 473.3 of the LNM could solve this requirement, since it establishes that the arrest of ships flying the flag of a State that is not a party to the Arrest Convention 1999, will be governed by the provisions of said Convention, with the exception that they may be arrested both for maritime claims and for any other claims. However, in that case, the special provision of art 472 of the LNM does not apply, which refers to arrest for maritime claims, and according to which 'to decree the arrest of a ship for maritime credit as defined in Article 1 of the International Convention on Arrest of Ships, it shall suffice to allege the right or credits claimed, the cause that gives rise to these and that the ship may be arrested'.

But it is also necessary that the debtor holds the status of the owner of the ship to be arrested or that, if this is not the case, the alleged maritime claim must have a privileged nature (ie must be a maritime lien). We must also refer to art 3.3 of the Arrest Convention 1999, in so far as it provides: 'Notwithstanding the provisions of paragraphs 1 and 2 of this article, the arrest of a ship which is not owned by the person liable for the claim shall be permissible only if, under the law of the State where 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 ship.'

This provision has been interpreted in relation to assumptions that the alleged maritime claim had its cause in a mortgage (art 1.1.u), in a dispute over the ownership or possession of the ship (art 1.1.s), or that it was a privileged maritime claim (a maritime lien) (for example, claims under art 4 of the MLM Convention 1993 or, where appropriate, other liens that may be recognised by the vessel's flag State).