This case arose out of the precautionary attachment of the Espadarte to guarantee a maritime credit of EUR 108,517.53, as well as a dispute about the sale and purchase of the vessel. The Court of first instance held that the suspension of the terms of the precautionary measure of foreclosure should be lifted, the deposit of the bond as security for the vessel should be retained, and the purchase and sale agreement for the Panamanian ship should be declared null and void.

Held: Appeal partially allowed.

Article 892 of the Civil Code (CC) stipulates that the sale of foreign goods is null and void whenever the seller lacks legitimacy to carry it out. This provision does not apply in this case, as the issue is whether the agent who conducted the sale had the authority to do so. The relevant provision is thus art 268 of the CC. Here, the representative of the selling company either had the authority to act, or, if it did not, the company ratified the transaction. The Court of first instance's decision that the sale of the vessel was null and void is therefore overturned.

In the precautionary procedure the seizure of the Espadarte was decreed 'to guarantee the maritime credit of € 108,517.53 plus interest'. The decision was justified in the light of arts 1.1.k and 8 of the Arrest Convention 1952. A creditor can arrest a ship owned by a person other than the debtor under the terms of the Arrest Convention 1952, provided that the sequestration right is granted to the detainer by the lex fori or by the MLM Convention 1926. Therefore, Portugal having acceded to the aforementioned MLM Convention 1926, the maritime credit in question is considered privileged [ie constitutes a maritime lien], with the creditor having the right to request the arrest of the ship.

According to the understanding of the jurisprudence, and in accordance with the aforementioned precepts, the Arrest Convention 1952 constitutes an exception to the principle that only the debtor's assets are responsible for the respective debts and that third parties cannot be harmed by the business of others. Thus, it has been understood that the holder of a privileged maritime credit may request the seizure of the ship that gave rise to it, even if that ship, on the date on which the action is requested, no longer belongs to the party who was its owner on the date of the constitution of credit.

Thus, under the terms of the Arrest Convention 1952, the arrest of the vessel was permitted for the maritime credit it gave rise to. Hence, the appeal succeeds only in part, and it is not possible to order the withdrawal of the deposit that replaces the attachment.