How release a vessel after her arrest or detention by Spanish Authorities

How “best” release a vessel after her arrest or detention by Spanish Authorities

Two are the scenarios hereby analized in which a vessel can be prevented from sailing from a Spanish port:

a) Her detention by a Spanish Port Authority after a PSC Inspection or a pollution case.

b) Her arrest by a Commercial Court, pursuant to the International Convention on the Arrest of Ships 1999.

In this article we would like to provide you with a practical guideline with the steps needed to release the vessel a.s.a.p. Obviously the situation and requirements would change depending on the authority enforcing the measure.

a) Detention by Spanish Port Authority / Harbour Master:

A guarantee is requested to cover the payment of the fine which might be imposed at the end of the Administrative Sanctioning proceedings as well as to cover the civil liabilities that could raise as a consequence of the infringements committed (e.g. cleaning expenses after a spillage).

Two are the requirements to get vessel’s release:

– The mentioned guarantee, in cash or bank guarantee (BG), to be produced in the Treasury Department. For the time being, note that P&I LOUs are not accepted. Quickest way is the cash deposit that can be replaced at a later stage by a BG. BG has to be issued by a Spanish bank (or foreign bank authorised in Spain) with a particular wording. As per our experience the BG takes at least 2/3 days to be properly issued.

– Designation of an address in Spain by all the eventual liable parties, to be used by the Spanish Authorities in the proceedings for serving the notices of any statement/resolution.

This requirement is easily fulfilled in cases of infringements related to the correct use of the Port and its facilities, safety of life at sea and marine traffic rules, where the allegedly liable parties are “only” the Operator/”Armador” and the Captain. The designation of a domicile in Spain can be fulfilled by the latter by appearing before the Harbour Master/“Capitán Marítimo” and making the designation on his and Operator’s behalf.

The problem arises out of pollution cases.

In such cases, liable parties are not only the Operator and Master but also the P&I and the Registered Owner. The Captain is only entitled to designate the address on his/Operator’s behalf.

Taking into account that in most cases the Registered Owner/P&I are foreign, such designation must be made by an officer of the company, with capacity of acting on its behalf, before a Public Notary, whose signature must be legalized with the “Apostille” of The Hague Convention (or by the Spanish Embassy/Consulate). After all these steps are completed, the original document must be submitted to the Spanish Port Authorities.

Our recommendation is to confer a PoA to the lawyer that will protect their interests in the sanctioning proceedings and, once the original PoA, duly legalized and translated, is on his hands, the lawyer will designate his own address for service purposes. With this, it is possible to kill two birds with one stone: i) designate the address (compulsory before vessel’s departure), ii) appoint a representative in the proceedings to protect his interests (optional).

b) Arrest by a Commercial Court:

According to art. 4 of the Geneva Convention 1999 the arrested vessel should be released when sufficient security has been provided in a satisfactory form. In practice it means two possibilities:

– Reaching an out of court agreement with the claimant with regards to the kind of security, its wording and its amount. Club’s LOUs are often accepted. If this is the case, as soon as the agreement is concluded, claimant must submit an application in Court asking for vessel’s release.

– The alternative is the cash deposit in Court’s bank account or BG to be produced in Court. As suggested before, cash deposit is the quickest way and a BG can replace it at a later stage. The amount of the security will be the principal amount claimed, plus interests and legal costs (maximum 30% of the amount claimed). Once the security is in place, Captain should appear before the Court and ask for the immediate release order.

Muñoz & Montañes’ lawyers have wide experience in assisting Owners/P&I Clubs in this kind of situations. Please feel free to contact us.

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