SPAIN Law and Practice Contributed by: José Antonio Domínguez, Mikel Garteiz-Goxeaskoa, Enrique Ortiz and Irantzu Sedano Beitia, Aiyon Abogados SLP
guarantee (eg, passenger vessels or when the vessel to be arrested is subject to a regular line). 5.6 Arresting Bunkers and Freight The Arrest Convention is applicable only to ship arrest, and not to bunker or freight arrest. The arrest of bunkers or freight is regulated by the pro - visions of the Spanish Code of Civil Procedure regard - ing conservatory measures. These provisions require the claimant not only to provide counter-security but also to present a prima facie case of claim (fumus boni iuris) and proof of the periculum in mora, or dan - ger in delay. In practice, since a bunker arrest entails detaining a vessel without a claim against its owner or maritime lien, Spanish courts are reluctant to agree to bunker arrest. 5.7 Sister-Ship Arrest Any other ship owned by the debtor, also known as a sister-ship, can be arrested under Spanish law in accordance with Article 3.2 of the Arrest Convention, as referred to by Article 475 of the SSA. Accordingly, a court may arrest not just the offending ship, but also other ships owned by the company liable for the claim, provided that this company was the owner or demise charterer of the offending ship when the claim arose. 5.8 Other Ways of Obtaining Attachment Orders Other ways to obtain security would be regulated by the provisions for conservatory measures of the Span - ish Code of Civil Procedure and would include the attachment of assets (other than a vessel) or rights, injunctions, etc. 5.9 Releasing an Arrested Vessel The first and quickest option to release an arrested vessel is by placing security before the court. The type of security – eg, Letter of Undertaking (LOU) of a pro - tection and indemnity insurance (P&I) club – can be agreed with the arresting party, and this agreement should be respected by the court. If an agreement on the security is not possible, in order to release the ves - sel, security must be placed before the court in any of the means admitted by Spanish Procedural Law. This would include a cash deposit or an unconditional – and unlimited in duration – bank guarantee issued by
a first-class Spanish bank. A P&I club LOU will not be admitted by the Spanish courts if the arresting party has not agreed to do so. The second way to obtain the vessel’s release involves disputing the arrest order on the basis that it is a wrongful arrest – ie, that it does not comply with the requirements of the Arrest Convention. This second possibility takes longer than the first (several weeks or even months), because the court will schedule a hearing prior to deciding on the issue. The third possibility would involve the arresting party not complying with their obligation to commence and file the proceedings on the merits before the compe - tent court/arbitrator within the period of time granted by the Spanish court. This period is usually 20 to 90 days and will depend on where the competent court is located. If Spain has jurisdiction, the period will be only 20 days. The period starts from the date the arrest order was notified to the owners (usually via the Master or ship agents and served by the court via the Harbour Master). 5.10 Procedure for the Judicial Sale of Arrested Ships Under Spanish law, the arrest does not give the claim - ant the legal right to seek direct enforcement against the vessel. The procedure for judicial sale of the arrested ship is subject to the commencement of recognition (when the judgment or award has been issued by a foreign – non-European – jurisdiction or international arbitra - tion) and enforcement proceedings of the final judg - ment or award on the merits of the claim. The enforcement proceedings of a (national or recog - nised foreign) judgment or award against any asset located in the Spanish territory are regulated by the Spanish Code of Civil Procedure, and the subsequent judicial sale of the vessel is regulated by Articles 480 to 486 of the SSA, which mandate the observance of the Lien Convention provisions and, subsidiarily, the Spanish Procedural Rules. Pursuant to Article 636.3 of the Spanish Code of Civil Procedure, the court will order the sale of the vessel
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