Under Panamanian Law, change of ownership of a vessel can be prevented by arresting the vessel. For this to be accomplished, the vessel must be within the jurisdiction of Panama. However, if the vessel is not in Panama, we are allowed to file an action in rem against the vessel, request its arrest and immediately require the Maritime Court to order an entry on the vessels’ record at the Public Registry as evidence that a claim against the vessel has been effected. This entry, which would appear in every certification issued by the Registry regarding the vessel, will not prevent its sale, but it would allow the plaintiff to make valid his rights against any buyer of the vessel. An alternative is to request in Court an order to prohibit the sale or mortgage of the vessel. To this end the plaintiff should file preliminary evidence to support the claim and a guaranty bond to be fixed by the Court, for not less than US$10,000.00.
An action in rem filed in Panama just to get the above note, would be in abeyance up to the moment the vessel arrives and is arrested in Panama. In case the vessel's owners motion for the release of the note, arguing that a previously filed claim exists abroad, the Court may reject the actio in rem and could require as previous conditions that the defendant prove the following:
The arrest of the vessel could also be ordered by a foreign Court and we may request its enforcement in Panama. For this purpose, a 6 to 8 month procedure seeking the approval of the Supreme Court would be necessary.
The first aspect to determine in order to arrest a vessel in Panama, is whether the client has or not an action in rem. This will enable us to choose the right proceedings for the claim. In accordance to the Panamanian law, unless there be an agreement to the contrary, the lex loci where the cargo was loaded should be applied to determine the effects of a transportation contract, including the bill of lading. This law will also decide the time barring of the action and whether there is an action in rem.
The limitation of responsibility of the vessel would be regulated by the law of the vessel’s flag. In case the Panamanian law becomes applicable, this is very similar to the International Convention on Limitation of Liability for Maritime Claims, London, 1976.
In order to draft a claim against a vessel, and file for its arrest, the following information is required:
The complaint should be filed together with the arrest petition and preliminary fax evidence to support the claim.
The following bonds should be deposited in Court at the time the arrest petition is being filed:
It is important to mention that the power of attorney, the certification of existence and representation provided by the plaintiff must be legalized by Apostille., If this is not available, it must then be legalized by the closest Panamanian Consulate.