This administrative appeal was lodged by the plaintiff insurer, MS Amlin Marine NV, against the decision of the President of the Port Authority of Castellón that the Caribana Express should be declared abandoned and sold at public auction, as well as its resolution that the abandoned Ukranian seafarers on the ship should be paid out according to the Maritime Labour Convention 2006. On 4 March 2021, the plaintiff paid the seafarers' accrued salaries and repatriation costs. On 14 May 2021, the plaintiff successfully filed for preventive seizure of the Caribana Express in the Commercial Court of Castellón, claiming recourse from Caribana Line SA for the above payments. The plaintiff's claim was based on a maritime lien pursuant to the MLM Convention 1993.

The Port Authority of Castellón decided on 17 March 2022 to initiate abandonment proceedings in respect of the Caribana Express, invoking art 302 of Royal Decree-Law 2/2011, of September 5, which approved the consolidated text of the Law on State Ports and the Merchant Marine (the TRLPEMM). The plaintiff argued that this decision caused it serious harm and constituted an infringement of art 304.4 of the TRLPEMM, art 480 of the Maritime Navigation Law (the LNM), and the MLM Convention 1993.

Held: Appeal dismissed.

Article 302.1 of the TRLPEMM establishes that:

The State owns ships abandoned in the port service area.

Vessels that remain docked, moored or anchored in the same place within the port for more than three months without any outwardly appreciable activity, and without having paid the corresponding fees or charges, and so declared by the Board of Directors of the Port Authority, will be considered abandoned.

The declaration of abandonment will require the processing of the corresponding procedure, in which the circumstances expressed will be proven and in which the owner, the shipowner, the captain of the ship or, where appropriate, the consignee of the shipwill be given a hearing, in the manner provided for in Law 30/1992, of November 26, on the Legal Regime of Public Administrations and the Common Administrative Procedure.

Once the Port Authority's Board of Directors has declared the vessel abandoned, the Authority will proceed either to sell it at public auction, depositing the proceeds of the sale into the Public Treasury, after deducting any credits accrued in its favour for the corresponding port fees and charges, as well as the expenses of the procedure; or it will proceed to sink the vessel when, due to its condition, reasons of maritime safety so advise ...

Article 304.4 of the TRLPEMM establishes that:

When, in the course of a judicial or administrative proceeding, the retention, preservation or deposit of a ship in the service area of ​​a port has been agreed upon, the corresponding Port Authority may request the Judicial Authority to order the sinking of the ship or its sale at public auction, when the stay of the ship in the port produces a real or potential danger to persons or property or causes serious damage to the operation of the port.

The judicial authority will order the sinking or sale in accordance with the legally established procedure in each case, unless it considers its preservation essential for the purposes of the investigation of the procedure and for the strictly necessary time.

Similarly, the sale will be carried out at public auction in cases where, due to the foreseeable duration of the judicial process, there is a risk of a significant depreciation of the vessel, depositing the proceeds of the sale pending the outcome of the proceedings.

The plaintiff invokes the application of art 304.4, while the Port Authority applied art 302.1.

The ship's shutdown began in December 2020, due to proven deficiencies related to its crew. In this situation, the shipowner hired a new crew and, finding themselves in this situation, the embargo occured at the request of the charterer, which determined the unsatisfied claim of the new crew members, the payment by the current plaintiff and the rest of the facts described.

Therefore, it is evident that the issue could be classified under art 304.4, because the ship is immobilised as a consequence of the initiation of an administrative procedure; however, the course of events, from that moment on, cannot be classified under the same art because what occured afterwards was a genuine abandonment in the legal terms of art 302, and thus, as highlighted in the narrative of the claim itself, the plaintiff has had to act, in its capacity as insurer, in the face of the abandonment of the ship and its crew by the company that owns it.

Indeed, as the Port Authority points out, the terms of the applicable provision (art 302.2) are clear regarding its duty to act when the vessel remains anchored in the same place for three months, without any outwardly appreciable activity, and without paying fees. These three conditions are met here.

Therefore, the administrative action is in accordance with the law.