This was an application for the arrest of the Maltese-registered Ocean Pearl, owned by the defendant, which was moored at Mataró Marina Barcelona, as security for the collection of a maritime claim of EUR 113,328.77 for mooring services.

Held: Ship arrest application granted.

The requested measure is subject to the Arrest Convention 1952 (ratified by Spain by means of an instrument of 11 September 1953, published in the BOE, 5 January 1954). However, this Convention ceased to be applicable in Spanish territory since 28 March 2012, by virtue of a denunciation made by Spain under art 17 of the same Convention. As of that date, only the Arrest Convention 1999, which was ratified by Spain by an Instrument of 31 May 2002, is applicable in Spain. Likewise, the Law on Maritime Navigation 2014 (the LNM), and the provisions of the LEC on precautionary measures (arts 721 ff) must be applied, due to the reference made in art 6 of the Arrest Convention 1999.

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'.

Although Malta has not signed the Arrest Convention 1999, it must still be applied by virtue of art 473 of the LNM, according to which '[a]rrest of ships flying the flag of a State that is not a party to the International Convention on Arrest of Ships, done at Geneva on 12th March 1999, shall be governed by the provisions of that Convention, notwithstanding it being possible for them to be arrested both for maritime claims as well as for any other claims'.

Based on the precepts set forth above, and that the seizure of a ship supposes, in accordance with art 1.2 of the Arrest Convention 1999, the immobilisation of a ship with the authorisation of the competent Judicial Authority, to secure a maritime claim, the Court examines the requirements for its adoption to see if they apply in the present case:

First, to establish that there is a maritime claim as provided for in art 1.1 of the Convention. To do this, the plaintiff must state in its application what claim it has against the shipowner or charterer and the reason why the claim deserves that qualification. In the present case, it is a maritime claim by virtue of which the ship's arrest is sought, for the amount of EUR 113,328.77. Therefore, being one of the claims in art 1.1 of the Convention, its sole allegation is enough to obtain the arrest.

Second, it must be established that proceedings arising from the maritime claim will be rendered ineffective (periculum in mora); that is, that there is a well-founded fear that the final judgment to enforce the claim for which the arrest was sought will become 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 the vessel. Indeed, as provided in the aforementioned art 472 of the LNM, it is not necessary to prove the assumptions of danger of procedural delay and urgency, since these are presumed by virtue of art 476 of the LNM.

Third, that a sufficient bond will be provided to guarantee the damages and losses derived from the immobilisation of the ship, which must be at least 15% of the amount of the alleged maritime claim (art 472 of the LNM). In this case, the plaintiff offers the amount of EUR 22,099.11, which is considered reasonable in light of the amount of the claim and its nature, since there is no evidence of any other circumstance that reveals the special seriousness of the ship arrest, or that the damages caused to the defendant are going to be high.

Fourth, that a depositary of the ship be appointed to take care of its conservation while the measure is maintained (art 626.3 LEC), since the immobilisation of a ship requires that someone be responsible for it. In this case, since the asset assigned to the measure is not intended for productive activity and since it is moored in a marina, the debtor itself must be appointed as depositary.

Regarding the adoption of the measure requested on an ex parte basis, although the general rule established by art 733 LEC is that of a prior hearing of the defendant, as this is in accordance with the fundamental right to effective judicial protection, art 733.2 includes a special rule, such as the possibility of adopting precautionary measures inaudita parte, provided that there are reasons of urgency or that a hearing may compromise the success of the measure. In this case, not only is there the possibility of the boat leaving the port where it is currently moored, but, as has already been said, art 476 of the LNM presumes the requirement of urgency in the case of seizure of vessels. Therefore, it is appropriate to adopt the requested measure without hearing the defendant.