COLOMBIA Law and Practice Contributed by: Javier Franco, Franco & Abogados Asociados
5.2 Maritime Liens Decision 487 of the Andean Community also deals with maritime claims (or “credits”, as the instrument calls them) and maritime liens. Maritime claims/cred - its are defined in Article 1 of Decision 487, follow - ing the logic of Article 1 of the International Conven - tion on Arrest of Ships, 1999. Thus, damages and/or losses caused by the exploitation of the ship (No 1), and death or personal injury in direct relation to the exploitation of the ship (No 2), among others, would allow the “arrest” of the ship in Colombia. However, even though the concept of a maritime lien itself belongs to Anglo-Saxon jurisdictions, Decision 487 also deals obliquely with the concept by making reference to certain “maritime privileges” that will fol - low the vessel, even if there is a change of ownership or flag, except in cases of forced execution of the ship (Article 22). Claims to be found among those “mari - time privileges” include: • those pertaining to crew wages, including repatria - tion costs, death or personal injury compensation claims emerging directly from the exploitation of the ship; • those arising out of salvage rewards; and • those arising out of port and navigation channel rights. 5.3 Liability in Personam for Owners or Demise Charterers As per Article 37 of Decision 487, the logic of the instrument is to allow the “arrest” of a vessel when - ever there is a maritime credit of the kinds described in Article 1. Moreover, Article 41 of Decision 487 essen - tially mirrors what is contemplated in Article 3.1 of the International Convention on Arrest of Ships, 1999, regarding requirements for the arrest to be permis - sible. 5.4 Unpaid Bunkers As per Article 1 of Decision 487 of 2000, a “maritime credit” (ie, a claim that could be used to “arrest” a vessel) would be a credit/claim that would have as its cause (No 12) bunkers supplied to the ship for the exploitation, management, conservation or mainte - nance of the vessel. Thus, it seems at least theoreti - cally possible to arrest a vessel in Colombia as a con -
sequence of such an event. However, the provision does not clarify who is to be the owner of the bunkers and/or the party that provided/ordered that service. 5.5 Arresting a Vessel The specific documents that should be presented are to be determined on a case-by-case basis. However, the likelihood is that a power of attorney and a certifi - cate of incorporation (or similar), duly apostilled, will be required if the documents are coming from abroad. Other documents that could be provided to evidence the maritime claim/credit that is being alleged to pro - mote the “arrest” should also be handed over to the court, so that the court can assess the claim properly. Before the COVID-19 pandemic, any such support - ing documents were likely to have been presented in their original form. However, due to the enactment of Decree 806/20 as part of the measures adopted by the government to deal with the pandemic in domes - tic courts (now converted as permanent legislation under Law 2213 of 2022), any such documents should now be provided in copy and/or sent by email to the respective court. It is important to know that, for the “arrest” order to be granted by the domestic court, security should be pro - vided by the arresting party, following the parameters contained in the General Procedural Code. 5.6 Arresting Bunkers and Freight Decision 487 refers to the “arrest” of the vessel only, and not to the arrest of bunkers and/or freight. How - ever, it is theoretically possible to request a measure of this nature at some point, not under Decision 487 of 2000 (which only refers to the arrest of a “vessel”) but under Colombian general procedural law if certain requirements are met. In fact, Article 590 lit c of the Colombian General Pro - cedural Code opens up the possibility of obtaining “any other measure” that the court could find it rea - sonable to provide in order to protect the right being litigated and to avoid its infraction, or to ensure that the effectiveness of the claimant’s petition is secured.
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