The plaintiff, Port Med Barcelona SA, sought the arrest of the vessel Limitless, moored in Port Ginesta, Barcelona, to guarantee the enforcement of a maritime claim of EUR 3,995.77, offering a surety of EUR 524 to answer for the possible damages caused.

Held: The plaintiff's arrest application is upheld.

The requested measure was subject to the Arrest Convention 1952. 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 Arrest Convention 1952. As from that date, the Arrest Convention 1999, ratified by Spain by Instrument on 31 May 2002 is the only applicable Convention.

Likewise, the Law on Maritime Navigation 14/2014 (the LNM) and the provisions of the Law on Civil Procedure on precautionary measures (art 721 ff) must be applied, due to the reference made in article 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'.

The Convention must also be applied by virtue of art 473.3 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'.

Likewise, the competence to adopt the requested measure is vested in the Commercial Courts, in accordance with art 86 ter LOPJ and art 471 LNM.

Based on the precepts set forth, ship arrest supposes, in accordance with art 1.2 of the Convention, the immobilisation of a ship with the authorisation of the competent judicial authority to guarantee a maritime claim.

A maritime claim must be 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 its claim deserves that qualification. In the present case, the maritime claim by virtue of which the arrest is sought is listed in art 1.1.n, which provides for maritime claims arising out of 'port, canal, dock, harbour and other waterway dues and charges', for the amount of EUR 3,995.77. From the documents provided with the claim, it is proven, at least in an indirect way, that a contractual relationship exists between the parties which gives rise to the alleged maritime claim. Being one of the maritime claims listed in art 1.1 of the Convention, its sole allegation is enough to obtain the ship arrest.

As to the second requirement, there must be a danger that the trial procedure which is being followed or which will be followed regarding the maritime claim will be ineffective (periculum in mora / danger in procedural delay); that is, that there is a well-founded fear that the sentence pronounced at the time to make effective the credit for which the seizure is requested becomes ineffective because the ship has left the jurisdiction of the national courts, a risk as a general rule that it is consubstantial to the nature and activity of the vessel. In the present case, the possibility is alleged that the vessel could leave the Spanish jurisdictional waters. In any case, as provided in art 472 LNM, it is not necessary to prove the assumptions of danger of procedural delay and urgency, since these are presumed under art 476 LNM.

Third, a sufficient bond 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 LNM). In this case, the plaintiff offers the amount of EUR 524, considering that it is proportional to the alleged maritime credit. This Court agrees to set the amount at EUR 600, in accordance with the provisions of art 472, considering this a reasonable sum 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 that are caused to the defendant are going to be high, considering that it is apparently a pleasure boat.

Fourth, art 626.3 of the Law on Civil Procedure provides for the appointment of a depositary of the ship to take care of its conservation while the measure is maintained, since the immobilisation of a ship requires someone to take responsibility for it. As a general rule, that person can be the debtor itself or the shipowner, but there is a risk that the debtor may abandon the ship, in which case the ship would be paralysed and there would be no person effectively responsible for the situation of the ship. To avoid this measure, whoever applies for a ship arrest must assume responsibility for the effectiveness of said measure, as long as it is adopted for its exclusive benefit, in such a way that in the absence of the master, or in the event that the master abandons the ship, the arresting party will be constituted as depositary. In this case, since the subject of arrest is not intended for productive activity, and since it is moored in a marina, the debtor itself must be appointed as depositary, without prejudice to the fact that, at any time, a new depositary may be appointed.