This was an appeal brought by Pezmares SA (Pezmares) against a judgment of the Court of first instance upholding the arrest of the ship Sky Fish I, and dismissing Pezmares' objections as a third party.

Held: Appeal upheld. The vessel is to be released.

A claim was brought for EUR 49,693.57 by Sopronav SL (Sopronav) against Coral SA. The vessel arrested, the Sky Fish I, was owned by Pezmares at all relevant times, as evidenced by a registration certificate issued by the International Registry of the Merchant Marine of Belize. However, the Court of first instance rejected Pezmares' objection, on the basis that Sopronav's claim was a maritime lien. Pezmares argues that it is not a maritime lien, but rather a pure and simple maritime claim. The claim falls under art 1.1.k of the Arrest Convention 1952, since it arises from goods or materials supplied to a ship for its operation or maintenance.

The Arrest Convention 1952 was ratified by Spain on 11 September 1953 (BOE of 5 January 1954). It lists a series of maritime claims in art 1.1 which can be classified into two groups: the second group being claims of ownership or possession of the ship, when the plaintiff alleges any of the maritime claims contained in the letters arts 1.1.o and 1.1.p; and the first group being claims of pecuniary content, which can be further divided into three subgroups. In the first place, there are the claims that we could call simple maritime claims, ie, those to which neither the domestic law regulations (the Commercial Code (CCom)), nor the MLM Convention 1926 grants privileged status. In this group must be included the claims mentioned in art 1.1.d, 1.1.e, 1.1.k, 1.1.l and 1.1.n. The MLM Convention 1926 was ratified by Spain on 2 June 1930 (Gaceta nº 212, of 31 July). The second subgroup consists of the privileged claims, ie, those to which the MLM Convention 1926, or rules of internal origin (art 580 CCom), grant privileged character, including in this group those claims mentioned in art 1.1.a, 1.1.b, 1.1.c, 1.1.f, 1.1.g, 1.1.h, 1.1.i, and 1.1.m of the Arrest Convention 1952. The third subgroup is made up of credits guaranteed by a ship mortgage, contemplated in art 1.1.q of the Arrest Convention 1952.

In relation to the subgroup of privileged claims, the maritime lien grants the maritime creditor the following rights:

1. A priority right, regulated in arts 580 and 581 of the Commercial Code and arts 2, 3, 5, 6 and 7 of the MLM Convention 1926, which represents an exception to the general principle of the 'pars conditio creditorum' (equal treatment of creditors), since the power to enforce the maritime lien claim is granted preferentially once the sale of the debtor's assets is executed.
2. A right of enforcement, a power that confers the nature of the real security of the maritime lien. Article 584 CCom provides that 'ships affected by the responsibility of the claims provided for in art 580 may be seized and sold judicially'. This is a real action, and is limited only to the ship that gave rise to the claim.

Therefore, the proprietary nature of the maritime lien has as its essential characteristocs, the right of realisation, which refers to the condition of the vessel mentioned above, and the right of enforcement, which alludes to the opposability of the right against third parties, as is reflected in art 8 of the MLM Convention 1926, according to which maritime liens follow the ship, even if it changes owners.

It is thus appropriate to uphold the appeal and lift the arrest because in this case it is a simple maritime claim, and not privileged. The last sentence of art 3.4 of the Arrest Convention 1952, which provides that '[t]he provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship', does not lead to a different conclusion. The preceding part of art 3.4 establishes the possibility of the arrest of the vessel in cases where the vessel is chartered by demise, but not in an unlimited manner or in respect of all maritime claims, whether simple or privileged, but rather expressly contemplates such a possibility, 'subject to the provisions of this Convention'. Among those provisions is art 9:

Nothing in this Convention shall be construed as creating a right of action, which, apart from the provisions of this Convention, would not arise under the law applied by the Court which was seized of the case, nor as creating any maritime liens which do not exist under such law or under the Convention on maritime mortgages and liens, if the latter is applicable.

Allowing an arrest in such circumstances in cases of simple maritime claims would make these claims and the privileged claims equal, with equal consequences, which would be contrary to the provisions of art 9 of the Arrest Convention 1952, which does not confer on the plaintiff any right of action other than that granted by the law to be applied or by the MLM Convention 1926, since in accordance with the latter, the substantive issue must be examined, as well as the privileged nature or not of the claim asserted in the process. The Arrest Convention 1952 grants a procedural security right for certain maritime claims, but its regulations do not determine the merits of the dispute, nor do they create new maritime liens.