COLOMBIA Law and Practice Contributed by: Javier Franco, Franco & Abogados Asociados
5.7 Sister-Ship Arrest Decision 487 of 2000 expressly provides that sister- ship arrest is possible. For that purpose, Article 42 of this international regulation mirrors what is provided in Article 3.2 of the International Convention on Arrest of Ships, 1999. 5.8 Other Ways of Obtaining Attachment Orders Article 72 of Decree 2324 establishes that any vessels involved in maritime accidents that are to be investi - gated by the DIMAR would need to provide security for any damages, fines and costs of the procedure before they are authorised to set sail by the respective harbour master. In practice, this is a different path that could be used to obtain security for maritime claims. 5.9 Releasing an Arrested Vessel As per Article 44 of Decision 487 of 2000, any ves - sel that has been “arrested” (by a proper judge/court) could be freed whenever security has been provided in a satisfactory manner. Letters of undertaking (LOUs) could be accepted in arrest procedures whenever there is agreement by the parties for that purpose. If not, a bank guarantee or an insurance policy would usually be required. 5.10 Procedure for the Judicial Sale of Arrested Ships There is no local legislation that deals specifically with the judicial sale of ships in Colombia; Decision 487 of 2000 merely provides some provisions on the sub - ject. Article 29 of Decision 487 is more important, as it provides for a notification of the judicial sale to be effected to certain specific persons, at least 30 days in advance. However, Article 1454 of the Colombian Commercial Code points out only that the judicial sale of a ship will follow the parameters set out in the General Procedural Code, and that the sale will be announced with notices located in visible parts of the ship and in the respective harbour master’s office. 5.11 Insolvency Laws Applied by Maritime Courts Colombia has a regulation that is analogous to Chap - ter 11 of the United States Bankruptcy Code, con - tained in Law 116 of 2006. From the perspective of this regulation, the debtor that is carrying out an insol -
vency procedure would not be able to provide war - ranties outside the insolvency procedure. Moreover, a court other than the one carrying out the insolvency procedure would not be in a position to order the judi - cial sale of the vessel. 5.12 Damages in the Event of Wrongful Arrest of a Vessel There are no clear cases that address this issue. How - ever, at least theoretically, compensation could be ordered under specific circumstances, since Article 51 of Decision 487 provides that the courts of the country in which the “arrest” has been effected would be competent to decide on the liability of the creditor regarding damages caused as a consequence – in particular, but not exclusively, for the arrest being held to be illicit or unjustified, or for requesting excessive security (thereby mirroring what is provided in Article 6.2 of the International Convention on Arrest of Ships, 1999). 6. Passenger Claims 6.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Colombia has not ratified the Athens Convention relat - ing to the Carriage of Passengers and their Luggage by Sea and/or its protocol. Only certain specific pro - visions in the Colombian Commercial Code deal with the subject, in a very general way. Articles 1585–1596 provide some rules for dealing with the liability of the carrier in cases of the cancellation of the trip, or its delay or interruption due to force majeure causes. For instance, Article 1592 establishes that, in the event of the cancellation of the trip, a claim for com - pensation would proceed unless the carrier is able to prove the “extraneous cause” (ie, an institution similar to force majeure), in which case the carrier would only need to give back the amount received as the price paid by the passenger. Moreover, the provision goes on to state that, if there is a justified motive for can - celling the trip, the carrier’s compensation would not be in an amount in excess of double the price paid by the passenger.
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