Ship arrestInternational conventions
Which international convention regarding the arrest of ships is in force in your jurisdiction?
Neither the International Convention Relating to the Arrest of Sea-Going Ships 1952 nor the International Convention on the Arrest of Ships 1999 are in force in Colombia. However, there is a regional instrument in the Andean Community, namely, Decision 487/00, which is inspired by (and very similar to) the 1999 Convention.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?
Under Decision 487/00 a vessel could be arrested whenever there is a ‘maritime credit’ (ie, a ‘maritime claim’ as expressed by article 1 of the 1999 Convention) and the situations that can give rise to a maritime credit are basically the same as those expressed in article 1 of the 1999 Convention.
Article 42 of Decision 487/00 (in the same manner as article 3.2 of the 1999 Convention) states that an arrest could proceed against any other vessel or vessels that, at the moment the arrest is effected, belong to the person that is personally obliged in virtue of a maritime credit and that, at the moment in which the credit arose, he or she was either the owner of the vessel with respect to which the maritime credit arose, or demise-charterer, time-charterer or voyage-charterer of that ship (but the provision clarifies that it does not apply to credits relating to the ownership or possession of a vessel).Maritime liens
Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?
Article 21 of Decision 487/00 makes specific reference to ‘maritime privileges’. Accordingly, Decision 487/00 states that these privileges place a special burden on the ship without the need for public registration, and making clear that they will follow the vessel even in the case of change of ownership, registry or flag (but not in case of forced execution of the ship).
Certain credits are considered to be guaranteed by a ‘maritime privilege’ by article 22 of Decision 487/00. Among these credits are:
- crew wages, including repatriation costs and social security payments;
- compensation payable owing to death or bodily injury wherever occurring in direct relation with the exploitation of the vessel;
- salvage reward;
- credits for port, channel or other navigational waters duties and pilots; and
- credits related to tort claims arising out of the exploitation of the ship (different from damage or loss suffered by cargo, containers or luggage on board).
Certain exceptions to these privileges are provided in article 23 of Decision 487/00.Wrongful arrest
What is the test for wrongful arrest?
There is no specific test in this regard in Colombia. However, as per article 51 of Decision 487/00, the tribunals of the country in which the arrest has been effected would be competent to determine the liability of the creditor for damage or loss caused with the arrest, whenever it has been (ie, illegal or unjustified), or in cases in which the security requested and provided has been excessive. In order to determine said liability the decision points to the application of the respective local law, so that the assessment is to be made in application of general parameters of civil and commercial liability.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?
According to article 41 of Decision 487/00, in our view the arrest could not proceed in this situation in Colombia since the credit will not be one of the registered owner or the demise-charterer.Security
Will the arresting party have to provide security and in what form and amount?
As per article 50 of Decision 487/00, the local tribunal could order the party requesting the arrest (or once effected, in order to be maintained) to provide security of the type, amount and conditions that the tribunal deems necessary in order to secure payment for damage or loss that could result, in particular (but not exclusively) from the fact that the arrest is either illegal or unjustified, or whenever the security requested or submitted is excessive.
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?
To get the arrest order removed, article 44 of Decision 487/00 states that the arrested party needs to provide sufficient security in a satisfactory manner. In any case, the same article clarifies that the person providing security could request at any moment its reduction, modification or cancellation.
Article 47 of Decision 487/00 further explains that, if no agreement is reached between the parties regarding the sufficiency and form of the security, the tribunal will determine its nature and quantity, but it will not exceed the value of the ship involved.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?
To arrest a vessel a power of attorney is usually required. Additionally, a certificate of incorporation of the company that is pursuing the arrest is also required, as well as any other documents supporting the existence of the maritime credit that could be available. Those documents should be fully translated into Spanish by a certified translator. In this respect, note that Colombia is party to the Apostille Convention.Ship maintenance
Who is responsible for the maintenance of the vessel while under arrest?
Usually the crew will be allowed to remain on board the vessel while the arrest is in place. Article 44 of Decision 487/00 sets out that the tribunal could allow the person in possession of the ship to remain exploiting it once security has been provided, or to resolve in any other manner the situation of the operation of the ship while the arrest is in place.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?
Article 52 of Decision 487/00 makes clear that the tribunals of the country in which the arrest is effected will be competent to decide the claim on its merits unless the parties agree (or have agreed) to submit such claim to the tribunals of a different country or to arbitral proceedings. Thus it is possible that the proceedings on the merits are carried out in a different jurisdiction.Injunctions and other forms of attachment
Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?
The traditional method of obtaining security for maritime claims, as in many other jurisdictions, is through a ship arrest. However, in cases of maritime accidents (eg, collisions, groundings, etc) the respective harbour master will initiate an investigation procedure in which, as per article 72 of Decree 2324/84, security could be requested by the harbour master on the part of the ship or ships involved in order to be authorised to set sail. This security is supposed to be requested for different purposes, namely to secure damages, fines and the expenses of the investigation so initiated.Delivery up and preservation orders
Are orders for delivery up or preservation of evidence or property available?
As per article 32 of Law 1563 of 2012, a precautionary measure could be requested in any type of judicial procedures in order to secure evidence that could be relevant during proceedings.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?
There is no specific provision in Decision 487/00 dealing with arrest of bunkers or similar.