This was an appeal brought by Sweden Commercial Corp (SCC) against a ruling of the Court of first instance, which held in SCC's favour against the defendants, Societe de Promotion de Peche, Atlant Associated Corp, and Bellville Holding Ltd, for the amount of EUR 907,484.10. Subsequently, the Court ruled that, as its judgment did not affect the property of the fishing vessels Widad 1, Widad 2, and Widad 3, it was appropriate to lift their arrest. SCC filed an appeal against the latter ruling, which was opposed by Open Joint Stock Company Arkhangelsk Trawl Fleet (ATF).

SCC argued that the Court below erred in releasing the vessels from arrest. SCC claimed that it had supplied fuel to the vessels, and had advanced a loan to Belville Holding Ltd, the operator of the vessels, for repairs and disbursements for wages payments for their crews. ATF contended that it was actually the registered owner of the vessels in the Russian ship registry. Societe de Promotion de Peche had obtained possession of the vessels and had fraudulently attempted to reflag them in Mauritania. ATF claimed that SCC knew that ATF was the true owner of the vessels, but had nonetheless sued Societe de Promotion de Peche as the 'shipowner'.

Held: Appeal dismissed. The judgment of the Court below is confirmed.

The legal regime of maritime liens and ship arrests, traditionally regulated by international Conventions, is undergoing renewal. The MLM Convention 1926 has been replaced by the MLM 1993, which entered into force on 5 September 2004. The Arrest Convention 1999 (which entered into force on 14 September 2011), has replaced the Arrest Convention 1952. Although the exact date of the commencement of the wages and fuel supply claims is not known, it should be understood that the MLM Convention 1926 was no longer applicable, but that the MLM Convention 1993 applied instead. Regarding the regulation of ship arrests, the dates to be taken into consideration are the application for arrest on 21 June 2006, and the issuing of the ship arrest orders on 28 June 2006. As of that date, the Arrest Convention 1999 had not yet entered into force, nor had the Arrest Convention 1952 lost its validity. It is therefore the latter Convention that was still applicable.

When the person encumbered by the precautionary measure has not been sued in the main proceedings, the precautionary ship arrest measures adopted must be rendered null and void. This pronouncement can and must be made, even ex officio, not by the Court that heard the precautionary measure because of the place where the vessel was at the time of arrest (in this case, the Huelva Commercial Court), but by whichever Court hears the proceedings that the plaintiff itself claims to be the main proceedings with respect to the precautionary measure adopted, in this case, the Court of First Instance of Las Palmas. Consequently, the appeal filed by SCC must be dismissed.

In any case, SCC is not the holder of any claim that deserves the status of a maritime lien or that, at least, maintains that privileged status at the time of SCC's application for ship arrest. Although the arrest of ships can be adopted by the sole allegation of the existence of maritime claims related to art 1.1 of the Arrest Convention 1952, it cannot be ignored that, as is clearly provided in art 9, the Arrest Convention 1952 does not confer on the plaintiff any right of action, which, apart from the provisions of the Convention, would not arise under the law applied by the Court which was seized of the case, nor does it create any maritime liens which do not exist under such law or under the MLM Convention, if the latter is applicable. It is therefore not enough, when the shipowner is not the plaintiff's debtor, for the plaintiff to argue that it has a maritime claim that is included in the list in art 1.1 of the Arrest Convention 1952 to maintain a ship arrest, and finally enforce it following the judgment issued in the main process provided for in art 7.2 of the Arrest Convention 1952. The lawsuit is not even directed against ATF, and although it is directed against Societe de Promotion de Peche, it is also made alleging that the latter company is the main debtor of the debts claimed.

The catalogue of maritime liens is much smaller than that of maritime claims. It was already so when the MLM Convention 1926 was in force, and it has been reduced much more in the current MLM Convention 1993. Article 4.1 strictly considers the following claims as maritime liens:

a) claims for wages and other sums due to the master, officers and other members of the vessel's complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel;
(c) claims for reward for the salvage of the vessel;
(d) claims for port, canal, and other waterway dues and pilotage dues;
(e) claims based on tort arising out of physical loss or damage caused by the operation of the vessel other than loss of or damage to cargo, containers and passengers' effects carried on the vessel.

No other maritime lien is established by the Convention (and even the claims in art 4.1.b and 4.1.e are excluded from the lien by art 4.2 of the Convention in certain cases of damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to international Conventions or national law providing for strict liability and compulsory insurance or other means of securing the claims; or the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste).

Article 10.1 of the MLM Convention 1993 establishes that '[t]he assignment of or subrogation to a claim secured by a maritime lien entails the simultaneous assignment of or subrogation to such a maritime lien'. There was no transfer of the guaranteed claim here (which could only have been done by the holders of the privileged maritime claim, not the persons obliged to pay it) but pure and simple payment of the wages claims to the master with an amount that was given to him by a representative of a company which is not a party to this litigation (and whose relationship with the ship's crew is not recorded), payment that extinguished the wages claims, and with them, the privileged status that those claims could carry. In short, no wage claim is claimed in this lawsuit, but the payment of a loan (it being irrelevant that the borrower was obliged to use the borrowed capital to pay the crew), a claim which the MLM Convention 1993 does not recognise as a maritime lien. As for the claim for fuel supplies, the MLM Convention 1993 does not regard them as privileged. Based on the foregoing, it must be concluded that none of the claims in this lawsuit is secured with maritime lien status under the applicable MLM Convention 1993. For this reason, the vessels arrested and owned by third parties with respect to the obligatory relationships on which the claim is based could never be subject to judicial sale or forced sale in execution of such claims.

Article 6 of the MLM Convention 1993 provides that a State Party may, under its law, grant other maritime liens on a vessel to secure claims, other than those referred to in art 4, against the owner, demise charterer, manager or operator of the vessel, provided that the liens meet certain conditions and in any case that they rank after after the maritime liens set out in art 4 and also after registered mortgages, 'hypotheques' or charges which comply with the provisions of art 1. Under Spanish law, art 580 of the Commercial Code establishes a series of maritime liens. They include the wages owed to the master and crew 'on their last voyage', and claims for providing fuel to the ship on 'the last voyage', subject to some registration requirements. As already stated, wages claims are not claimed here, and the claims for fuel supply have not been proven by SCC. It must therefore be concluded that SCC's claims do not enjoy a real privilege over the property under domestic law either.