In an effort to update and harmonize vessel’s arrest regulations with international standards, in 2000 Colombia adopted Decision 487 on ‘Maritime Liens and Preventive Arrest of Vessels’ issued by the ‘Andean Community of Nations’. However, after almost 10 years Decision 487 has proven very difficult to apply in Colombia, to the point that even today judges and legal practitioners do not agree on how to legally arrest a vessel. As a result, nowadays the arrest of a ship represents a costly an uncertain scenario for ship-owners and (ironically) for cargo interests.
Under Decision 487 a vessel can be arrested by a Colombian judge in order to grant security to the holder of a “maritime lien”. It should be noted that according to this Decision fairly any claim on vague grounds could be considered as a “maritime lien” and could lead to an arrest. Consequently, over the last years this tool has been fiercely applied by lawyers trying to arrest vessels at any cost, causing off course, costly and lengthy litigations. Most of these disputes contended the fact of whether a vessel’s arrest followed the right proceeding or not, bearing in mind the current legal uncertainty caused by legal loopholes and contradictory high court decisions (as explained below).
The reason behind the difficulty to apply Decision 487 lies in the fact that it does not provide for a specific proceeding to be followed, establishing that local procedural laws should be applied. Under Colombian law the only available legal proceedings to create encumbrances (such as the arrest of a vessel) are “executory” and “ordinary” actions. It is not surprising that lawyers representing cargo interests prefer to arrest vessels through executory proceedings, considering that this type of action may take between 2 and 3 years, while an ordinary proceeding could take up to 6 years (not including extraordinary appeals).
Over the last years A&A Multiprime have been successfully representing ship-owner interests in vessel arrest proceedings alleging its invalidity based, among other issues, on the lack of a valid title and the illegality of an executory action. At the present time A&A Multiprime is representing ship-owners and P&I clubs at recovery actions, claiming damages caused to ships due to invalid arrests.
In contrast recently a high court decision, contradicting all the previous case law, ruled that an executory action could actually proceed when arresting a vessel. To complicate matters even further, some lawyers argue that there’s no need to follow a specific local proceeding considering that international conventions such as Decision 487 prevail over local regulations. Thus, according to these lawyers the request for arresting a vessel could be simply done “informally” before a judge, and the only requisite would be to evidence a valid maritime lien (although, to our knowledge, this strategy has not been tested yet).
As a result, the current situation is that cargo interest’s lawyers are arresting vessels using both executory and ordinary proceedings, and, as explained in the previous paragraph, they might even try not to use any pre-established proceeding at all. Therefore, bearing in mind the uncertain behavior (to say the least) of some Colombian courts and the extreme flexibility of their jurisprudence, ship-owners cannot rest completely assured of how or why their vessels could try to be arrested in Colombia. Nonetheless, our experience shows that most of the times these “creative” procedural approaches at arresting vessels, end up in the claimant having to pay for damages to the ship-owner.
With any luck, in the near future the Colombian congress or the Supreme Court of Justice will clarify the existing legal uncertainty. In the mean time, in parallel to the legal strategy it is also important that practical measures are taken by ship-owners calling to Colombian ports. When a vessel suffers an accident resulting in damage to cargo previous to berthing in Colombia, when possible, they should not advise or give notice to consignees before its arrival at port. On the contrary owners must contact its P&I Club to inform the situation so that we as correspondents can be prepared and ensure that arrival is safe by checking that no arrest was filed before any Colombian authority.