This appeal was brought by Yates Baleares Servicios Naúticos SL (Yates) against an order of the Court of first instance denying its application for arrest of a ship. Yates alleged a maritime claim of EUR 15,238.88 for mooring fees owed to it by a previous operator of the vessel, which was currently owned by PKO Leasing SA, a Polish company. Yates argued that it had a maritime claim according to art 1.1.n of the Arrest Convention 1999: '"Maritime Claim" means a claim arising out of one or more of the following: ... (n) port, canal, dock, harbour and other waterway dues and charges'. In addition, art 4.1.d of the MLM Convention 1993 provides: 'Each of the following claims against the owner, demise charterer, manager or operator of the vessel shall be secured by a maritime lien on the vessel: ... (d) claims for port, canal, and other waterway dues and pilotage dues'.

The Judge below denied the application for ship arrest, reasoning that, although a maritime claim was invoked, and it had maritime privilege (ie was a maritime lien), the arrest was claimed in respect to a ship that was not owned by the debtor. The Judge concluded that a lawsuit could not be filed against the person who will suffer the arrest measure, so the ship arrest was not appropriate. Yates appealed to the Provincial Court.

Held: Appeal upheld. The judgment of the Court below is revoked. Security is to be provided by Yates at 15% of the maritime claim.

Regarding jurisdiction, art 471 of Law 14/2014 on Maritime Navigation (the LNM) provides:

1. The Court that has objective competence to hear the main claim, or that of the port or place where the ship is located, or that where the ship is expected to arrive, as chosen by the plaintiff that requests adoption of the injunctive measure, shall be competent to decree the arrest of a ship. Notwithstanding this, if the ship does not reach the port expected, the Court of that port shall lose its competence.

2. When arrest of a ship is ordered, if a Spanish Court is competent to hear the substantive matter, the measure resolved shall be maintained as long as the suit is filed within the term set by the Court in keeping with the circumstances of the case.

Regarding maritime liens and the debt contracted by the owner/operator of the ship - the property of a legal person of the same nationality as the alleged debtor - the appellant is correct regarding the suitability of the alleged maritime claim to proceed with ship arrest, precisely because the nature of the maritime lien allows the arrest of a vessel owned by a person other than the debtor under certain conditions. This is the result of the literal wording of art 3 of the Arrest Convention 1999, from which it can be deduced that for ship arrest to be possible, the debtor must be the owner of the ship arrested at the time the time the arrest is effected, except in the case of a maritime lien, which is enforceable against the ship directly, regardless of its ownership.

A judgment of 27 November 2017 (Roj: AAP PO 3325/2017 - ECLI: ES:APPO:2017:3325A) discussed the issue as follows:

One of the most controversial issues during the elaboration phase of the Geneva Convention of 1999 was, precisely, the determination of the vessels that could be arrested. After various proposals, the determination of the object of the arrest was regulated in article 3 of the Convention in a more restrictive sense than that provided for in the 1952 Convention, given that if the debtor is not the owner of the ship that has generated the maritime claim, that ship can only be arrested where a judgment in respect of that claim can be enforced against that ship by judicial or forced sale of that ship (art. 3.3 of the Arrest Convention 1999). Therefore, if the debtor (operator or charterer) and the owner do not coincide, the maritime claim must be assisted by some maritime lien or be guaranteed with a ship mortgage in order to arrest that ship whose owner is not the debtor.

In accordance with article 3.1 of the Convention, the creditor may arrest, in certain cases, 'any ship in respect of which a maritime claim is asserted' (the so-called offending ship), that is, the ship to which the maritime claim refers and whose exploitation or use has generated said claim or, if preferred, from which the maritime claim is caused. The specific cases in which the offending ship may be arrested are the following:

(a) the person who owned the ship at the time when the maritime claim arose is liable for the claim and is owner of the ship when the arrest is effected; or
(b) the demise charterer of the ship at the time when the maritime claim arose is liable for the claim and is demise charterer or owner of the ship when the arrest is effected; or
(c) the claim is based upon a mortgage or a 'hypothèque' or a charge of the same nature on the ship; or
(d) the claim relates to the ownership or possession of the ship; or
(e) the claim is against the owner, demise charterer, manager or operator of the ship and is secured by a maritime lien which is granted or arises under the law of the State where the arrest is applied for.

However, these categories of arrest, provided for in art 3.1 of the Convention, must be interpreted, as the doctrine indicates, together with the important limitation contained in art 3.3 of the same provision. In accordance with this restriction, the arrest of a ship for a claim whose debtor is not the owner of said ship will only be admissible if judgment can be executed against that ship through its judicial or forced sale. As a consequence, maritime liens and claims with collateral will enable a ship to be arrested when the debtor is not the owner of the ship. However, in accordance with Spanish regulations, it will not be possible to arrest a ship for non-privileged maritime claims and without a real guarantee, when the debtor is not the owner, but the bareboat charterer or the time charterer or the voyage charterer, since the judgment issued in relation to the claim could not be enforced against that ship.

The Provincial Court of Pontevedra in Judgment No 231/2016 of 5 May stated as follows:

The maritime claim with special privilege and the extinction of the claim.

As stated, art. 483.1 LNM (RCL 2014, 1045) refers to 'privileged maritime claim holders', while arts. 122 and 480 of the same text refers to the MLM Convention 1993 (RCL 2004, 1066).

Article 4.1.d of the aforementioned Convention includes, among the claims against the owner, the bareboat charterer, the manager, or the shipowner of the ship which are guaranteed with a maritime lien, 'claims for port, canal, and other waterway dues and pilotage dues', which art. 5 of the Convention recognises as taking priority over registered mortgages, 'hypotheques' and charges.

However, maritime liens are not indefinite, but rather, in accordance with art. 9.1 of the Convention, 'shall be extinguished after a period of one year unless, prior to the expiry of such period, the vessel has been arrested or seized, such arrest or seizure leading to a forced sale'; a period that, in the case of claims for port dues, will commence 'when the claims secured thereby arise; and shall not be subject to suspension or interruption, provided, however, that time shall not run during the period that the arrest or seizure of the vessel is not permitted by law'. (art. 9.2.b). ...

Article 8 of the Convention clearly states that the maritime liens follow the vessel notwithstanding any change of ownership, registration or flag. Therefore, while the vessel remained moored at the third party's jetty, such rights continued to accrue... .

In a judgment of 25 June 2015 issued by the Provincial Court of Huelva (Section 2) it was stated:

The Arrest Convention 1999, as established in Royal Decree-Law 12/2011, of 26 August (RCL 2011, 1630), which modifies the 26th Final Provision of the Law of Civil Procedure (RCL 2000,34,962 and RCL 2001, 1892), provides that, in order to decree the arrest of a ship, it will suffice to allege the credit claimed and the cause that motivates it. Article 3.1.b of the aforementioned Convention allows the arrest of a vessel if the bareboat charterer of the vessel at the time the maritime claim was created is obligated by virtue of that claim and is the bareboat charterer or owner of the vessel at the time of the arrest. For its part, art 3.3 thereof establishes that, notwithstanding the provisions of paras 1 and 2, an arrest of a ship not owned by the person liable under the claim is permissible only if, under the law of the State in which the arrest is sought, a judgment made in relation to that claim can be enforced against that ship by its forced judicial sale. However, art 4 of the MLM Convention 1993, which, having been ratified by the Spanish State (BOE of 23 April 2004), forms part of our legal system, and in what is of interest here, includes among maritime liens: d) claims for port, canal, and other waterway dues and pilotage dues. And these claims, as established in art 5 of the aforementioned Convention, take priority over mortgages.

Consequently, a correct interpretation of the aforementioned provisions leads us to the logical conclusion that the preventive arrest of a ship is only possible for debts contracted by the bareboat charterer of the same when it comes to maritime liens included in article 4 of the MLM Convention 1993. ...

The case law, interpreting the provisions that regulate this institution, has resolved that other requirements to adopt ship arrest are the accreditation of the seizure of the ship and the constitution of a guarantee that, at least, must be 15 per cent of the amount of the maritime claim. Pursuant to the procedural rules, the bond may be constituted in cash, a joint and several guarantee of indefinite duration and payable upon first demand issued by a credit institution, or by any other means that, in the Court's opinion, guarantees the immediate availability of the bonded amount. In recent years, the Commercial Courts have been demanding between five and 30 per cent, depending on the circumstances of the case. Even though the Arrest Convention 1999 regulates this bail on a discretionary basis, at the will of the Judge, the 26th final provision of the Civil Procedure Law establishes that in practice, it will be necessary, in any case, to provide a guarantee that covers the damages, losses and costs that could be caused by the arrest. ...