Barcelona Serveis Municipals SA sought to arrest the vessel Catch Me, located in the Olympic Port of Barcelona, to guarantee the enforcement of a maritime claim of EUR 7,300.45. EUR 1,095 was offered as a surety to respond for possible damages caused.

Held: The plaintiff's application for ship arrest is denied.

The requested measure was said to be subject to the Arrest Convention 1952. However, this Convention ceased to be applicable in Spanish territory since 28 March 2012, by virtue of a denunciation made by Spain under art 17 of the Arrest Convention 1952. As from that date, the Arrest Convention 1999, ratified by Spain by Instrument on 31 May 2002 is the only applicable Convention.

Likewise, the Law on Maritime Navigation 14/2014 (the LNM) and the provisions of the Law on Civil Procedure on precautionary measures (art 721 ff) must be applied, due to the reference made in article 6 of the Arrest Convention 1999. Article 472 of the LNM provides that 'to decree arrest of a ship for a maritime claim as defined in Article 1 of the International Convention on Arrest of Ships, it shall suffice to allege the right or claims claimed, the cause that gives rise to these and that the ship may be arrested', adding in art 475 that '[a]ll ships with regard to which a maritime claim is alleged may be arrested pursuant to the terms and within the scope of the International Convention on Arrest of Ships'.

The Convention must also be applied by virtue of art 473.3 of the LNM, according to which '[a]rrest of ships flying the flag of a State that is not a party to the International Convention on Arrest of Ships, done at Geneva on 12th March 1999, shall be governed by the provisions of that Convention, notwithstanding it being possible for them to be arrested both for maritime claims as well as for any other claims'.

Likewise, the competence to adopt the requested measure is vested in the Commercial Courts, in accordance with art 86 ter LOPJ and art 471 LNM.

Based on the precepts set forth, ship arrest supposes, in accordance with art 1.2 of the Convention, the immobilisation of a ship with the authorisation of the competent judicial authority to guarantee a maritime claim.

A maritime claim must be provided for in art 1.1 of the Convention. To do this, the plaintiff must state in its application what claim it has against the shipowner or charterer and the reason why its claim deserves that qualification. In the present case, the maritime claim by virtue of which the arrest is sought is listed in art 1.1.n, which provides for maritime claims arising out of 'port, canal, dock, harbour and other waterway dues and charges'. In the present case, it is accredited that the maritime claim is for the repair and equipment of the ship [art 1.1.m?]. Supporting invoices are attached.

There must be a danger that the trial procedure that is being followed or that will be followed in respect of the maritime claim will be ineffective (periculum in mora / danger in procedural delay); that is, that there is a well-founded fear that the judgment pronounced to enforce the claim for which the arrest is sought becomes ineffective because the ship has left the jurisdiction of the national courts, a risk as a general rule that it is consubstantial to the nature and activity of the vessel. As provided for in arts 472 and 476 LNM, this requirement is presumed iuris tantum [ie as a rebuttable presumption].

In this case, the plaintiff contends that the danger 'derives from the very condition of the property on which the arrest measure is requested, which is a ship that can leave the port at any time, being the basic property against which the credit of my principal is guaranteed'. However, the intrinsic mobility of a vessel is not a sufficient reason to conclude that there is a danger that justifies the adoption of a measure as burdensome as the one requested. In addition, in the present case it is contradicted by various facts: the vessel is of Spanish nationality (not foreign); the owner is also a Spanish national and resident; the boat is moored in a well-known yacht club at a local port; no evidence is provided that the vessel is being sold; and, in short, there is no evidence whatsoever that reveals the intention of the defendant to leave the country.

In view of these circumstances, there is no risk whatsoever that legitimises the precautionary measure of ship arrest, given the easy location and identification of both the shipowner and the vessel.