Ship arrest

International conventions

Which international convention regarding the arrest of ships is in force in your jurisdiction?

By Legislative Resolution No. 30566, issued on 23 May 2017, Peru approved the International Convention on the Arrest of Ships 1999 (Geneva). Also, Decision No. 487 in 2000 issued by the Andean Community, incorporated in one document the provisions of both the International Convention on Maritime Liens and Naval Mortgages of 1993 and the International Convention on the Arrests of Ships of 1999. It also added a few sections, namely its own legislation on the matter.

Claims

In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?

Yes, a bareboat chartered vessel can be arrested for a claim against the bareboat charterer, and a time-chartered vessel cannot be arrested for a claim against a time-charterer. Although the arrest should be valid, Peruvian courts have not yet decided on the matter.

Under Peruvian law, a vessel may be arrested if the requesting party has a maritime credit that entitles him or her to do so. In this sense, the International Convention on the Arrest of Ships 1999 and section 1 of Decision No. 487 from the Andean Community classifies the Maritime Credit as follows:

  • loss or damage caused by the operation of the vessel;
  • death or personal injury occurring on land or on water, in direct connection with the operation of the vessel;
  • assistance or salvage operations or any salvage agreement, including, if applicable, special compensation relating to salvage operations or assistance with respect to a vessel which by itself or its cargo threatens to damage the environment;
  • damage or threat of damage caused by the ship to the environment, coastline or related interests;
  • costs and expenses relating to the launching, removal, recovery, destruction or rendering harmless of a sunken ship, wrecked, abandoned, including anything that is or has been on board a ship, and costs and expenditures related to the preservation of an abandoned ship and maintenance of its crew;
  • any contract relating to the use or hire of the ship in a charter party or otherwise;
  • a contract for the carriage of goods or passengers on board the ship in a charter party or otherwise;
  • loss or damage to the goods (including luggage) carried on board the ship;
  • general average;
  • trailer;
  • pilotage;
  • goods, parts, supplies, bunkers, equipment (including containers) supplied or services rendered to the vessel for its operation, management, preservation or maintenance;
  • construction, repair, conversion or equipping of the vessel;
  • the rights and duties of ports, canals, docks, harbours and other waterways;
  • salaries and others due to the master, officers and crew, including repatriation costs as well as those of social security payable on his or her behalf;
  • disbursements made on behalf of the ship or its owners;
  • insurance premiums, P&I contributions, payable by the owner of the bareboat chartered vessel, or on his or her behalf in connection with the vessel;
  • commissions, brokerages or agency fees payable by the shipowner or bareboat charterer, or on their own, in connection with the vessel;
  • any dispute concerning the ownership or possession of the ship;
  • any dispute between co-owners of the vessel regarding its use or the proceeds of its exploitation;
  • a registered mortgage or encumbrance of the same nature on the ship; and
  • any dispute arising from a contract of sale of the ship.

 

Associated ships (sister ships) may also be arrested in certain cases.

Maritime liens

Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?

Yes, a bareboat chartered vessel can be arrested for a claim against the bareboat charterer, and a time-chartered vessel cannot be arrested for a claim against a time-charterer. Although the arrest should be valid, Peruvian courts have not yet decided on the matter.

Under Peruvian law, a vessel may be arrested if the requesting party has a maritime credit that entitles him or her to do so. 

Wrongful arrest

What is the test for wrongful arrest?

A precautionary arrest demands a main lawsuit, which must be filed within 10 days of the arrest decision being issued. The latter suit will discuss whether the debt really exists and its value. If it is adjudged that the debt did not exist, then there was a wrongful arrest. Therefore, as a consequence of a decision considering the main lawsuit groundless, the party that requested the arrest may be held liable for wrongful arrest and ordered to pay all losses sustained by the defendants, including lawyers’ fees and court expenses.

Bunker suppliers

Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?

Yes, those claims are qualified as a maritime credit, thus the vessel can be arrested.

Security

Will the arresting party have to provide security and in what form and amount?

Yes, the court will require a counter-guarantee in order to compensate eventual losses sustained by a vessel’s interests in the case of a wrongful arrest. However, the form and the amount of the counter-guarantee will be decided at the judge’s discretion.

How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently? In what form must the security be provided? Can the amount of security exceed the value of the ship?

The amount of security will be determined by the judge taking into consideration the supporting evidence submitted and the amount requested by the claimant.

In principle, the arrested vessel may be released on the offering of a bank guarantee in the amount for which the arrest is applied by claimants. This procedure can take one week. The most practical way to release a vessel from arrest is to pay the total claimed amount in the form of a cash deposit. This procedure to release the vessel can take between two and five days.

The amount of security cannot exceed the value of the ship.

Formalities

What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?

A power of attorney nominating the relevant lawyer must be provided to the court. This document must be authenticated and apostilled by the Peruvian consulate and duly translated into Spanish (sworn translation). Peru is signatory to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). If the power of attorney comes from a non-party to the above-mentioned Convention, legalisation by the Peruvian consul will suffice and his or her signature will have to be validated by the Minister of Foreign Affairs of Peru.

Also, make the arrest, all supporting documents should be submitted before the court in their original form or certified copy by a public notary and, if they are written in any language other than Spanish, they must be duly translated into Spanish (sworn translation).

However, if there is insufficient time available before filing the arrest application to comply with all the required formalities, it is possible to begin (not to execute) the arrest procedure, while the arresting party completes the formalities or the relevant documents as soon as possible.

The relevant documents cannot be filed electronically.

Finally, the arresting party will require approximately 15 days’ notice to prepare an arrest application.

Ship maintenance

Who is responsible for the maintenance of the vessel while under arrest?

Shipowners and owners are liable in solidum for the custody and placing relevant measures to secure the vessel.

Proceedings on the merits

Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere?

Yes, it is possible to pursue proceedings on the merits elsewhere. Peru is a party to the Andean Pact, and as such ought to abide by the Decisions or Resolutions issued by the relevant authority (the Andean Community Commission), which allows the above.

Injunctions and other forms of attachment

Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?

Yes. The Peruvian Civil Procedural Code establishes other forms of precautionary measures to be taken and injunctions sought to obtain security, either by attachment of values or seizure of assets.

Delivery up and preservation orders

Are orders for delivery up or preservation of evidence or property available?

Yes. The Peruvian Civil Procedural Code provides for the possibility of precautionary measures to be taken and injunctions to allow, inter alia, the urgent production of evidence, disclosure of documents and preservation of evidence or assets.

Bunker arrest and attachment

Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?

Yes, it is possible but not a usual practice in Peru. This arrest is subject to the same legal regime as the arrest of vessels.

Law stated date

Correct on

Give the date on which the information above is accurate.

April 2020.