SPAIN Law and Practice Contributed by: Verónica Meana, José Antonio Domínguez, Enrique Ortiz and Mikel Garteiz-goxeaskoa, Aiyon Abogados
the charterer cannot bind the vessel by ordering bunkers. 4.5 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 public notary, it will need to be legalised. Under the SSA, a mere allegation of the mari - time claim would suffice for the arrest applica - tion. However, it is advisable to submit prima facie evidence of the claim with the arrest peti - tion. Any document submitted 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 elec - tronically by the procurator, via the e-official sys - tem of the Spanish Ministry of Justice, to the court. Accordingly, the documents will be pre - sented as copies. The SSA requires that the arrest petitioner pro - vide counter-security, prior to the court enforcing the arrest, which will amount to a minimum of 15% of the maritime claim. This counter-security is provided to guarantee possible damages in the case of wrongful arrest. In most cases, the counter-security requested by Spanish courts is limited to 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 guarantee (eg, passenger vessels or when the vessel to be arrested is subject to a regular line). The Spanish government is proposing to amend
the SSA so that there is no minimum security amount required, leaving the determination of the amount at the complete discretion of the judge. 4.6 Arresting Bunkers and Freight The 1999 Arrest Convention is not applicable to bunker or freight arrest. It is only applicable to ship arrest. The regulation of arrest of bunkers or freight falls within the provisions regarding conservatory measures of the Spanish Code of Civil Proce - dure. These provisions not only require that the claimant provide counter-security but also that they present a prima facie case of claim (fumus boni iuris) and proof of the periculum in mora, or danger 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. 4.7 Sister-Ship Arrest Any other ship owned by the debtor, also known as a sister-ship, can be arrested under Spanish Law in line with Article 3(2) of the 1999 Arrest Convention, as referred to in 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 the company was the owner or demise charterer of the offending ship when the claim arose. 4.8 Other Ways of Obtaining Attachment Orders Other ways to obtain security would be regu - lated by the provisions for conservatory meas - ures in the Spanish Code of Civil Procedure and would include the attachment of assets (other than a vessel) or rights, injunctions, etc.
535 CHAMBERS.COM
Powered by FlippingBook