Barcelona Serveis Municipals SA sought to arrest the vessel Stormy Dos, which was moored in the Olympic Port of Barcelona, to guarantee the enforcement of a maritime claim of EUR 5,649.06, offering to pay a deposit of EUR 847.36 to respond for possible damages caused by the arrest. The plaintiff's claim was based on art 1.1.n of the Arrest Convention 1999, which provides for maritime claims arising out of 'port, canal, dock, harbour and other waterway dues and charges'.

Held: The plaintiff's application is denied.

The requested measure is subject to the Arrest Convention 1999, which was ratified by Spain on 31 May 2002. Ship arrest supposes, according to art 1.2 of the Convention, the immobilisation of a ship with the authorisation of the competent judicial authority, to guarantee a maritime claim. Regarding the applicability of the Convention and the competence of this Court, it is appropriate to take into account the grounds alleged in the application and the alleged claim, in accordance with arts 2, 7, and 8 of the Convention. The competence to grant this measure is granted to the Commercial Courts, in accordance with the provisions of art 86 ter of the Organic Law of the Judiciary, applying the procedural rules of the precautionary measures of art 721 ff of the Law of Civil Procedure, by reference to art 6 of the Convention.

Likewise, the Law on Maritime Navigation 2014 (LNM) must be applied, due to the reference made in art 6 of the Convention. 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 requirements to be able to adopt this measure are, first, that a maritime claim specified in art 1.1 of the Convention is alleged; second, that there is a danger that the trial procedure that is being followed or that will be followed regarding the maritime claim will be ineffective (periculum in mora); third, that a sufficient bond be provided to guarantee any damages arising from the immobilisation of the vessel; and fourth, that a ship's depositary be appointed to take care of its conservation while the measure is maintained, under art 626 of the Civil Procedure Law.

In this case, the plaintiff's claim is one of those provided for in art 1.1.n of the Convention. Its allegation is sufficient, in accordance with the literal tenor of the art 1 of the Convention. The first requirement is therefore met.

The second requirement, like that of any precautionary measure, is so-called periculum in mora (danger in procedural delay), which consists of the well-founded fear that a later judgment will be ineffective because the ship has left the jurisdiction of the national courts, a risk as a general rule that is consubstantial to the nature and activity of ships. The LNM does not provide that the periculum in mora requirement does not have to be proved or accredited, but rather provides that it is presumed, as indicated in art 476 of the LNM. However, this presumption is rebuttable (iuris tantum).

In this case, the plaintiff argues that the danger derives from the very condition of the asset in regard of which the seizure measure is requested. 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 addition, the contract on which the plaintiff's claim is based contains a right of retention clause over the vessel until the debts owing are paid.

In view of these circumstances, there is neither urgency nor periculum in mora, so the aforementioned precautionary measure should be denied.