ARGENTINA Law and Practice Contributed by: María Belén Espiñeira, International Transport & Logistics Legal Consultants – MB Espiñeira & Abogados
turing proceeding that is similar to the one set forth under Title 11 of the US Bankruptcy Code. Once a debtor files a judicial restructuring pro - ceeding ( Concurso preventivo de acreedores ), all existing actions to enforce claims against it – except those claims arising from a pledge or mortgage – shall be stayed and transferred to be continued by the bankruptcy court and no similar actions may be brought. However, any existing contentious proceeding against debt - ors, where their liability has not been yet deter- mined, shall continue its regular course before the same court where the claim was originally brought, up to the final judgment. Privileged creditors secured by pledges or mort - gages shall be allowed to continue enforcement actions, but the court may order a stay of such proceedings for a period no longer than 90 days. Moreover, the court shall not authorise precau - tionary measures or judicial sale unless the claimant proved the credit was verified in the judicial restructuring proceeding. Among privi - leged creditors, those whose claims are secured by maritime liens set forth by the Argentine Nav - igation Law may request the formation of the special process of maritime privileged creditors. Moreover, a vessel mortgagee may request the judicial sale of the vessel, over which maritime privileged creditors will concur following the ranking of priority set forth by the Argentine Navigation Law. If, after the judicial sale of the vessel, any part of the purchase price remains, it will be transferred to the relevant bankruptcy court. Despite the aforesaid, the debtor and other interested creditors may request the bankruptcy court to lift all precautionary measures pending over those assets considered essential for the continuance of their commercial activities, such as a vessel might be for her owners. Under these
circumstances, the judicial sale of a vessel prop - erty of owners that are under a judicial restruc - turing proceeding shall be subject to the judicial bankruptcy proceedings. 4.12 Damages in the Event of Wrongful Arrest of a Vessel The Argentine Navigation Law does not contain any express provision about wrongful arrests; however, the most recognised doctrine has con - sidered that, in the case of an intentional wrong - ful arrest, the arrestor shall be liable unlimitedly for all the damages and losses resulting from the illegitimate immobilisation of the vessel. In this respect, the burden of proof to demonstrate the arrestor’s liability would be difficult to meet, as the intention of the arrestor, the wrongful arrest and the causation link between the arrest and the damages will need to be demonstrated. The Argentine Navigation Law only provides that the liability of the arrestor who – without acting maliciously – obtains the arrest of a vessel and does not ultimately initiate actions of claim is limited to the damages caused by the immobi - lisation of the vessel, until the moment at which the ship-owner substitutes said arrest with another security, and to the expenses related thereto (Section 540, Argentine Navigation Law). 5. Passenger Claims 5.1 Laws and Conventions Applicable to the Resolution of Passenger Claims Argentina approved its accession to the Athens Convention relating to the Carriage of Passen - gers and their Luggage by Sea and its Protocol (1974) by means of Law 22,178. Furthermore, the Argentine Navigation Law rules apply to those cases that do not fall within the scope of application of the aforementioned Convention
48
CHAMBERS.COM
Powered by FlippingBook