Ship arrest in Portugal

Alexandra von Böhm-Amolly of AMYA’s Lisbon office looks at the procedure for ship arrest in Portugal.

FROM a geographical point of view, the Portuguese continental and archipelagic territories are the maritime gateway of Europe, lying on the axis of the Mediterranean and the North and South Atlantic ocean seaway routes. These geographical conditions once allowed the Portuguese to conquer the seas and discover unknown territories and maritime routes, becoming the greatest maritime power in the world. They still grant a decisive importance to Portugal’s maritime jurisdiction.

Thousands of vessels cross the Portuguese maritime belt, and more than 12,000 ships call at Portuguese ports, each year, moving around sixty million tonnes of cargo and bringing around half a million cruise passengers to visit the country every year.

Among other important international conventions on admiralty law and on the law of the sea, Portugal ratified the Brussels International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships, 1952, in May 1957, and has been a party to the convention ever since. This means that a ship may easily and quickly be arrested within the territorial waters of Portugal through a provisional seizure ordered by the Lisbon Maritime Court. This court has jurisdiction over the whole national territory. The claimant must invoke the actual existence of credit incurred for one or more of the following items, which are listed under Article 1, No 1 of the Convention:

  1. Damage caused by any ship either in collision or otherwise;
  2. Loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship;
  3. Salvage;
  4. Agreement relating to the use or hire of any ship whether by charter party or otherwise;
  5. Agreement relating to the carriage of goods in any ship whether by charter party or otherwise;
  6. Loss of or damage to goods, including baggage carried in any ship;
  7. General average;
  8. Bottomry;
  9. Towage;
  10. Pilotage;
  11. Goods or materials wherever supplied to a ship for its operation or maintenance;
  12. Construction, repair or equipment of any ship or dock charges and dues;
  13. Wages of master, officers, or crew;
  14. Master’s disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or its owners;
  15. Disputes as to the title or ownership of any ship;
  16. Disputes between co-owners of any ship as to the ownership, possession, employment or earnings of that ship and
  17. The mortgage of any ship.

The Brussels convention will always be applicable to the arrest of a ship in Portugal as long as the application is grounded on the existence of one of the maritime credits listed under Article 1. The only exception is for a resident claimant wanting to arrest a vessel flying the Portuguese flag. Apart from a few cases, namely liens arising under items l), o), p) or q) above, other vessels under the same ownership may also be arrested instead of the vessel that incurred the claim.

The claimant’s attorney must submit a petition for the arrest to the Lisbon Maritime Court detailing the facts, possibly enclosing documents or requesting the court to order other means of evidence such as witness hearings. The petition should be organised and prepared according to local civil procedure rules, since all matters of procedure shall be governed by Portuguese law. An ordinary power of attorney should also be presented, either attached to the petition or in the shortest possible term after the petition has been submitted. The claimant has no need to prove, or even to mention, the risk of losing the means of guarantee. Therefore, in such an application, the claimant is expected only to invoke and eventually to provide evidence of a maritime credit such as one of those listed under Article 1 of the 1952 Brussels Convention.

Once the application has been accepted, the Lisbon Maritime Court issues an immediate order to the maritime authorities for retention of the vessel and for a watch to be maintained on it. In the meantime, and according to the claimant’s request, witnesses will be called for the hearings as soon as possible. The final decision ordering the arrest of the vessel, or its release, is issued immediately thereafter.

The court will not necessarily request counter-security from the claimant, on condition that the petition regarding the application for arrest appears to be well grounded. This cautionary judgment is valid for a thirty-day period and can be enforced throughout this time.

The main action regarding the merits of the case has to be brought to the relevant court within thirty days of the decision on the arrest being notified to the claimant’s attorney. Should this proceeding be submitted to any other national or foreign court, evidence of the submission must be presented to the Lisbon Maritime Court within thirty-five days of the notification of arrest.

Immediately after the vessel’s arrest has been ordered by the court, the captain will be informed of the court’s decision. The shipowner will also be notified in order that it can present any opposition to the provisional judgment or even lodge an appeal in order to overrule such decision, providing that there could be any relevant legal or factual causes.

Should the claimant finally obtain a favourable decision on merits, an attachment execution can be submitted to the maritime court, immediately converting the arrest into a seizure.