This was an appeal regarding the arrest of a fishing vessel by Yacht Services Sl in the Port of Vilanova i la Geltrú. The first instance Court held that:

1. The arrest of the vessel should be lifted.
2. A preventive annotation of the arrest should be entered in the corresponding Register of Personal Property.
3. Of the amount deposited by the shipowners as security, EUR 1,800 should be returned, keeping the remaining amount, EUR 200, as a guarantee for the substitution of the agreed preventive annotation measure.

Both parties appealed against this decision.

Held: Appeals dismissed. The appealed decision is confirmed.

This case has its origin in repairs carried out by Yacht Services Team SL on the propulsion system of the relevant fishing vessel, a fact that is not disputed. Nor is it questioned that this is a maritime claim contemplated in art 1.1 of the Arrest Convention 1999, and that the vessel was under the co-ownership of Mr Virgilio and Ms Brigida. Two invoices were issued by Yacht Services Team SL, addressed to Virgilio. EUR 500 was paid by the other co-owner, Brigida, by bank transfer, with the remaining amount of EUR 9,583.90 unpaid.

Yacht Services Team SL appeals the first instance decision as it is interested in maintaining the immobilisation of the ship. For their part, the defendants appeal the first instance decision, alleging that the boat is co-owned, and that the invoices were issued solely against Virgilio.

On the first of the issues raised, art 470 of the Maritime Navigation Law (the LNM) provides: 'The precautionary measure of preventive arrest of ships, both national and foreign, will be regulated by the International Convention on Arrest of Ships, made in Geneva on March 12, 1999, by the provisions of this Law and, additionally, by what is established in Law 1/2000, of January 7, on Civil Procedure. This measure will necessarily entail the immobilisation of the ship in the port where it is located.' However, art 473 of the LNM, 'Arrest for Other Claims', contemplates a reservation of application to this case, as does the appealed first instance decision. Indeed, art 473 of the LNM states:

1. The seizure of Spanish ships that are materially within Spanish jurisdiction, carried out at the request of persons who have their habitual residence or main establishment in Spain, or who have acquired a claim that is granted by assignment or subrogation to them, may be agreed both for maritime claims and for any other rights or claims against the debtor to which the ship or ships in respect of which action is requested belong.

Spanish ships may also be seized by the competent administrative body in accordance with the provisions of specific regulations that are applicable.

2. In the arrests referred to in the previous section, immobilisation may be replaced, in the opinion of the competent court or administrative body, by an entry in the Movable Assets Registry of the measure and, where appropriate, of the prohibition to dispose of the property.

Thus, the provision contemplates an exception to the general rule that the seizure of ships supposes their automatic immobilisation, specially designed for the retention of the ship as security for a claim. However, when the aforementioned requirements are met, as they have been in this case, and despite the fact that the LNM does not provide criteria to determine when such a substitution is appropriate, it seems logical to consider that the risk of the vessel escaping, and therefore of the loss of effectiveness of the arrest of the same, is minimal if it is a vessel with Spanish registration, and with habitual mooring in waters subject to Spanish jurisdiction. This assumption of lower risk is what the legislator contemplated as the least harmful option for the shipowner.

Faced with this possibility granted by the LNM, the judgment of proportionality on the precautionary measure made by the lower Court seems correct. The measure falls on a vessel dedicated to fishing, so that its stoppage may even make it difficult to pay what is claimed if it remains unproductive at the place of mooring, and the defendants cannot obtain any return from it. The appeal filed by Yacht Services Team SL for the precautionary measure of arrest should be dismissed.

The other side alleges that there is no ground for the seizure of the vessel, since it is co-owned by Virgilio and Brigida, and the invoices for the repairs carried out in the vessel were issued solely in the name of Virgilio. Although it is true that co-owners are not responsible for the debts of other co-owners, as they affirm, here the debt originated from the conservation and maintenance of the commonly owned property. The invoice issued by Yacht Services Team SL and the name that appears on it are not decisive in determining the identity of the debtor, much less when it is recognised that Brigida was the one who made a payment of EUR 500 by bank transfer, on account of the total claimed, which implies recognition of her status as co-owner and obligated party, together with the other co-owner, Virgilio.