SPAIN Law and Practice Contributed by: José Antonio Domínguez, Mikel Garteiz-Goxeaskoa, Enrique Ortiz and Irantzu Sedano Beitia, Aiyon Abogados SLP
• loss of life or personal injury directly connected with the operation of the vessel (subject to Article 4.2 (a)–(b)); • salvage reward; • port/canal/waterway and pilotage dues; and • tort claims for physical loss or damage caused by the operation of the vessel, excluding cargo, con - tainers and passengers’ effects (subject to Article 4.2 (a)–(b)). Under Article 124 of the SSA, any liens recognised outside the Convention (under domestic law, EU rules or other treaties applicable in Spain) rank below mort - gages and other registered charges. The government has considered amending the SSA to add supplies and repairs in Spanish ports as maritime liens. Spain distinguishes between maritime liens (claims that “fol - low” the vessel and may be enforced in rem notwith - standing changes of ownership/flag) and maritime claims (ie, those listed in Article 1 (1) of the 1999 Arrest Convention), which permit ship arrest and include, beyond liens, a wider set of claims (eg, charterparty and carriage disputes, cargo damage, general aver - age, towage/pilotage, bunkers/supplies/services, ship construction/repair, port dues, disbursements, insur - ance premiums, commissions/agency fees, owner - ship/co-ownership disputes, mortgages/charges, and ship sale disputes). Consequently, chartering liabilities qualify as maritime claims enabling arrest. 5.3 Liability in Personam for Owners or Demise Charterers In order to arrest a vessel under Spanish law, its own - ers or demise charterers must have in personam liabil - ity for the maritime claim. Exceptions to this principle are maritime liens: when a claim is a maritime lien, the claimant may arrest the offending vessel even if its owner or demise charterer is not liable in personam for the claim. 5.4 Unpaid Bunkers Bunker supply to a vessel is considered a maritime claim and the bunker supplier (contractual or actual supplier) can arrest the vessel for unpaid bunkers by virtue of Article 1.l) of the 1999 Arrest Convention,
provided that these bunkers were purchased by the ship-owner or by the demise charterer. Bunkers ordered by a charterer would not enable the claimant to arrest the vessel following Article 3.3 of the Arrest Convention, as a claim for unpaid bunkers is not considered a lien and does not create an in rem action against the vessel. However, in cases in which the terms and conditions of the actual supplier establish a direct action against the ship-owner or demise charterer and these terms and conditions have been accepted by the Master by signing the “bunker receipt”, Spanish courts have agreed to arrest the ves - sel. The charterer cannot bind the vessel by order - ing bunkers without the Master’s acceptance, which would be binding on the owner. 5.5 Arresting a Vessel The arrestor must appoint a court agent (also known as a procurator) and must be assisted by a lawyer in the arrest proceedings. The court will require a notarial power of attorney (POA) evidencing that appointment. If the power of attorney is issued before a foreign pub - lic notary, it will need to be legalised. Under the SSA, a mere allegation of the maritime claim would suffice for the arrest application. It is, however, advisable to submit prima facie evidence of such a claim with the arrest petition. Any document submit - ted to the court must be translated into Spanish. Free translations of both the POA and evidence will suffice for this purpose. In practice, the arrest petition, including the POA and any other document, will be presented electronically by the procurator to the court. Accordingly, the docu - ments will be presented as copies. The SSA requires the arrest petitioner to provide counter-security, prior to the court enforcing the arrest, which shall amount to a minimum of 15% of the maritime claim. This counter-security is pro - vided to guarantee possible damages in the case of wrongful arrest. In most cases, the counter-security requested by Spanish courts is limited to this 15% of the maritime claim and is only occasionally increased when the court considers that there are other relevant factors that may give rise to the need to set a higher
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