What can I do can do if the ships UBO (ultimate beneficial owner) rejects to pay my salary or nay debts related with dismissal? Can I sue and litigate in Spain even if the vessel is flying non Spanish flag and I am non resident? How long does this take?
These are frequent question in our firm from many crew members in the nautical business and very few people know that there is a possibility of enacting the preventing arrest of a boat in a very short period of time.
The first source of regulations in this matter is the Maritime Labour Convention, 2006, ILO an international instrument that sets out seafarers’ rights to decent conditions of work and helps to create conditions of fair competition for shipowners and has as principal aim to protect social and labour rights of seafarers who carries out their work on third States flagged ship.
The arrest of ships is regulated in Spain firstly by the International Convention on the Arrest of ships, 1999, made in Geneva on March 12, 1999, an agreement to which Spain acceded through the Instrument of Accession of Spain dated May 31 from 2002. The Spanish Law 14/2014, of July 24, on Maritime Navigation (Ley de Navegación Marítima) ratifies this point in article 470, when it orders:
- The precautionary measure of preventive seizure of ships, both national and foreign, shall be regulated by the International Convention on the Precautionary Seizure of Ships, made in Geneva on March 12, 1999, by the provisions of this law and, additionally, by what is established in Law 1/2000, of January 7, on Civil Procedure. Said measure will necessarily entail the immobilization of the ship in the port where it is located.
According to said legal dispositions any seafarer might claim for unpaid salaries, wages and debts as maritime credits against the shipowner in Spain by means of a Precautionary Measure procedure if the vessel is lying in Spain. The arrest procedure is quite easy and quick: a claim must be launched by Lawyer (“Abogado”) and judicial servant (“Procurador”) before the Mercantile Court together with the seafarers contract and/or invoice and any evidences of payment requests, explaining all the circumstances and the location of the vessel, no matter which flag she flies. The claimant must place as guarantee at Court a caution deposit of normally 15% of the amount claimed. The Mercantile Court normally adopts an immediate arrest if the formalities are respected without entering in the case itself just by showing evidence of the requests of an unpaid salary, bill or invoice – no matter the amount – that is directly related with works or services done at/for the vessel, the so called maritime credit. Normally in about one or two weeks the Court issues mandatory execution to the Port Authorities, Marinas and the Guardia Civil and the boat is seized and therefore not allowed to sail out nor to be used at all other than urgent repairs.
The defendant might remove the arrest by appearing at Court assisted by appearing at Court also assisted by Lawyer (“Abogado”) and judicial servant (“Procurador”) and making a deposit of the petition plus a certain amount of approx. 25% to 30% for interests and judicial expenses.
I can tell you that our experience is that once the owner sees his boat is non operative the negotiations for the payment are more effective. If an agreement is reached the Solicitors of both parties sign an extrajudicial agreement and ask for cancelling the seizure.
Once the arrest is adopted Court resolution within the term of twenty days conferred by the Court, the principal claim on the merits of the matter must be filed before the same Court and if it is not submitted then the debtor can apply at Court for cancel of the arrest, but this takes also time. In the principal claim however it is important to know that the Spanish Court might reject jurisdiction and competence if there exists a jurisdiction submission clause to foreign Court in the Seafarer’s Agency contract.
It is always advisable firstly to request officially the shipowner with a notarial request or pre-action letter for the payment of the outstanding monies and warning of legal actions. And also, is very important to know exactly where the boat is lying.
So now in times of crisis be aware that your salaries can and will be paid.
Just ask your Lawyer.
Carlos Espinosa
Solicitor & Tax Adviser
+34 627 41 32 01
carlos.espinosa@iurisnautic.com
