The respondent, Scandia Shipping Agencies Ltd, filed a lawsuit against the appellant, Naviera Astur Galaica SA, alleging a maritime lien over the Pontedeume for fuel supplied to the vessel. The respondent arrested the ship, citing art 1.1.k of the Arrest Convention 1952. The respondent argued that the ship was responsible for the fuel supply, and that its maritime lien ranked in priority over any ship mortgage, as established in arts 2.5 and 3 of MLM Convention 1926. The appellant argued that it was not the responsible party.

The Court of first instance held in favour of the respondent, finding that the appellant was obligated to pay the respondent the price of the fuel supplied to the ship on 8 July 1984 in the Port of Montreal, Canada, amounting to US 49,601.56, and that the ship was subject to a maritime lien for the fuel supply, which ranked ahead of ship mortgages under the MLM Convention 1926.

The appellant appealed to the Burgos Territorial Court, which confirmed the appealed judgment. The appellant then appealed in cassation to the Supreme Court, arguing that the judgments of the Courts below infringed the doctrine of exceptio plurium litisconsortium, ie that all affected parties must be represented in the proceedings. In addition, the appellant alleged violations of arts 1, 2, 6, 7.2, and 8.3 of the Arrest Convention 1952.

Held: Appeal dismissed.

The exceptio plurium litisconsortium is not relevant on the facts. The appellant argues that the statement contained in the operative part of the appealed judgment, according to which the respondent's maritime lien that is recognised, is declared to rank ahead of ship mortgages, requires that the relevant mortgagees be joined in the proceedings as parties. The argument cannot succeed, since the declaration in the judgment can in no way affect mortgagees which are not involved in the proceedings; they would always be able to bring their own mortgage claim under the MLM Convention 1926, and such hypothetical third party claims would not be affected by res judicata.

Further, the appellant maintains that the ship arrest made under the Arrest Convention 1952 cannot be applied to a Canadian company, as Canada has not signed the Arrest Convention. However, it must be remembered that the appellant already had the opportunity in the preliminary hearing on precautionary measures to oppose the ship arrest, and used it. That objection was dismissed, so the issue was resolved, and there was no appeal against that finding. Once the merits of the lawsuit are already in the process of being enforced, it is beyond any doubt that this argument must be rejected.