ARGENTINA Trends and Developments Contributed by: Jorge Radovich, Liza Pozzi and Matias Bongiorno, Radovich & Asociados
The claims included in the first group have priority over mortgage claims, which take precedence over those in the second group. Secured creditors may not be subrogated to the rights of the vessel’s owner to compensation due under a hull and machinery insur - ance contract. It is characteristic of a lien that it adheres to a vessel like a limpet, remaining valid and enforceable even if the vessel is transferred to a third party completely unrelated to the event that gave rise to it. Except in the case of (m) above, it is crucial to bear in mind that the lien expires one year after its creation, which affects the possibility of obtaining an attach - ment on the vessel, as will be discussed in the fol - lowing section. Extinction before one year occurs in the case of a judicial sale of the vessel or after three months of a private sale. Arrest of Vessels and Lifting of Precautionary Measures The arrest of a vessel not flying the Argentine flag implies the prohibition of navigation of the vessel. In principle, for an arrest to be valid, the vessel must be in an Argentine port, not under way. However, case law has admitted that a vessel in roadstead awaiting entry to the port may be arrested (Federal Court of Necochea, Case No 8235/2024, TT Marine Maritime Agency SA v Vessel RED ORCHID IMO 9757890 re: Interdiction of Departure and Navigation, 26 August 2024). The person requesting the arrest must pay the court fee of 3% on the amount to be secured, plus the amount budgeted by the court to cover interest and costs. An attachment order issued pursuant to a final judg - ment or arbitral award is generally the least problem - atic. If the decision is foreign, it should be noted that Argentina has ratified the New York Convention but not subsequent amendments. The second level of difficulty arises with attachments based on maritime liens, which require proof of their existence and validity.
In addition to maritime liens, foreign vessels may be arrested for debts incurred within the national terri - tory for the benefit of the vessel herself, or of another vessel that belongs or belonged, at the time the debt originated, to the same owner; and for debts arising from the vessel’s operations, or for other debts unre - lated to these operations, when they are enforceable in the courts of the country. If the vessel that originated the debt in Argentina is subject to a demise charter operated by a disponent owner, or there is a time charterer, and they are the only parties responsible for the debt, the seizure of another vessel owned by the disponent owner or time charterer is appropriate, but not the seizure of another vessel belonging to the owner of the disponent owner or time charterer. If the arrest is preventive and without a lien, the requirements of common civil and commercial law, which are more stringent, must be met. In all cases, documents in a foreign language must be translated in Argentina, and judges require a counter- security of between 20% and 40% of the sum to be secured for registration. A surety bond is most com - monly presented, although cash, bonds and other assets can also be deposited. Article 612 of the ANL establishes that national courts have jurisdiction to hear any case to which an owner or disponent owner of a foreign-flagged vessel is a party, in cases where, according to this law, the vessel may be arrested. However, its interpretation generated controversy and conflicting decisions until the issue reached the Supreme Court. The Supreme Court declared in 1975, in the case of Eberth Clemens B.M.B.H. v Vessel “PAVLO” , that the jurisdiction established by Article 612 is not exclusive, but concurrent with any other jurisdiction that might apply. Thus, the arrest of a vessel in Argentina did not cre - ate exclusive jurisdiction for the court that ordered it; rather, the final decision on the merits of the case
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