Armando Henriques, Ana Cristina Pimentel & Associados Sociedade de Advogados, RL

Av. Miguel Bombarda, 50 – 2º
1050-166 Lisboa
e-mail ah.acp@netcabo.pt
Tel (351)  21 781 99 90
Fax   (351)   21 793 06 15

10. Do your Courts require counter-security in order to arrest a ship?

Although it is established on article 390 nr. 2 of the Portuguese Code of Civil Procedure that the judge may request the arrestor to put up an adequate security, considering the particular circumstances of the case under analysis, to our knowledge never did a Maritime Court Judge request for such counter-security to be given by the arrestor as a requisite for the arrest to be granted.

11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?

There is no difference in respect of arresting a ship for a maritime credit or maritime lien; the same rules apply on both situations. However, when the arrest is requested on the basis of national law only, the arrestor will have to produce evidence before the Court on the probability of the existence of his credit as well as on the financial situation of the arrestee to justify the urgency of the proceedings and that the arrest of the ship will be the only measure that will allow the arrestor to be able to receive payment considering the overall situation of the arrestee and his assets.

12. Does your country recognize maritime liens? Under which International Convention, if any?

Yes. Portugal is a party to the 1926 Brussels Convention for the unification of certain rules relating to maritime liens and mortgages. After the liens listed on article 2 of the Convention and the registered mortgages, follows the liens listed on article 578 of the Portuguese Commercial Code.

13. What lapse of time is required in order to arrest a ship since the moment the files arrives to your law firm?

Once the file is analysed by the Lawyers, it will be necessary to prepare and draft the arrest application stating clearly all the relevant facts of the case, the reasons for the arrest to be granted and the amount claimed all dully supported by the relevant documentary evidence (contracts, invoices, exchange of correspondence, etc.), translated into Portuguese; at least the most relevant documents should be translated. A list of witnesses to be heard should also be included on the arrest application. From the moment the arrest application is submitted to Court, the judge will have a period of 24 hours to analyse the file and give the first detention order preventing the vessel from sailing. (Courts are opened to the public from 9.00 to 16.00 hours, with lunch time from 12.30 to 13.30 hours, although documents may be filed electronically at any time). This Court order is immediately sent by fax by the Court to the Harbour Master office of the port where the vessel is staying. Normally, as far as the Maritime Court is concerned, the first detention order is given within a few hours after the application is submitted to Court. The hearing of the witnesses appointed will take place a few days later depending on the judge’s agenda and whether the judge considers such inquiry necessary.
The arrest of ships calling the ports of Madeira and Azores Islands may take longer as the matter is brought before the Civil Courts and not before a specialized  Maritime Court as it happens for the rest of the country.

14. Do you need to provide a POA, or any other documents of the claim to the Court?

When presenting the arrest application it will be necessary to attach a power of attorney. At least a copy of the power of attorney should be attached to the arrest application, providing the original is attached as soon as received. If the papers are files to the Court electronically, the originals are kept by the Lawyers.
All the supporting documents evidencing the facts of the case and the amount of the claim should also be attached to the arrest application for the judge to be able to analyse the merits of the arrest application and consider whether there are sufficient evidence to justify the need for the arrest procedure as guarantee for the payment of the amount claimed in debt.

15. What original documents are required, what documents can be filed electronically, what documents require notarization and/or apostille, and when are they needed?

All documents may be filed electronically, in such case, the originals are kept by the Lawyers. The original power of attorney should always be kept by the Lawyers; the supporting documents may be kept only in copies. The power of attorney should be legalized with apostille or at least documents evidencing the identity and powers of the person signing the power of attorney should be presented to the Lawyer and considered as sufficient. The originals of the supporting documents may eventually be requested to be confronted with the copies on the file in case of any doubt or controversy regarding the validity or evidence value of the documents filed.

16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?

Portuguese Courts will accept jurisdiction over the substantive claim on the situations listed on article 7 nr 1 of the 1952 Brussels arrest Convention.

17. Which period to time will be granted by the Courts in order for the claimants to take legal action on the merits?

The normal time limit for the claimant to take legal action on the merits is ten days counting from the date the arrestor is notified by the Court that the arrest application has been served on the arrestee. Such period of time may be longer at the request of the applicant on the basis of article 7 nr 2 of the 1952 Brussels Arrest Convention provided the arrestor justifies the need for such a longer delay, namely when the proceedings will have to be engaged on a different jurisdiction.

18. Do the Courts in your Country acknowledge wrongful arrest?

Yes. Article 390 of the Code of Civil Procedure determines that if the arrest is considered unjustified or will become void because of the arrestor, the arrestor is responsible for the damages caused to the arrestee if the arrestor did not act as a normal and prudent man should have done. Civil liability rules will apply to this situation and to the evaluation of the damages caused.

19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?

No. Only the debtor / arrestee and his registered assets are liable for the payment of the debts claimed against such debtor, an individual person or a company. The Court will not look into the links between different companies and their shareholders or allow the arrest of assets belonging to other entities other then the debtor/arrestee.

20. Is it possible to have a ship sold pendent elite; is so how long does it take?

It will be possible to request for the anticipated sale of the ship, providing one can justify the need for such measure because of, for instance, the depreciation of the value of the ship and the consequences thereof for the owner and claimants. The circumstances of each particular case are analysed by the Court and this measure is normally only allowed when the ship is abandoned by the owner/arrestee, remains arrested for a long period of time and her situation is uncertain. The sale procedure will take several months considering the need to obtain the judge’s order, the service on the owner of the ship and the sale procedure that will follow there of.