Precautionary and conservative measures before the Maritime Courts of Panama Originally published on
Originally published on: Legal Industry Reviews
In order to guarantee a maritime claim, Law 8 of 1982, on Maritime Procedure, contemplates the possibility of requesting precautionary and conservative measures before the Maritime Courts of Panama.
The two main measures in this regard are the seizure of ships, regardless of their flag, or of assets belonging to the defendant (including cargo, fuel and others), and the conservative or general protection measure, generally known as “injunction”.
The hijacking of ships in Panamanian territorial waters will have the purpose of:
Avoid that the process is illusory in its effects and that the defendant transfers, disposes of, worsens, encumbers or dissipates assets.
Ascribe, to the competence of the Panamanian Maritime Courts, the knowledge of the causes that arise outside the national territory, as a consequence of facts or acts related to navigation when the defendant is outside its jurisdiction, and in causes that arise within the national territory when the plaintiff chooses to seize a property of the defendant in order to notify him of the demand.
Materially seize assets susceptible to sequestration to make effective privileged maritime credits, maritime encumbrances or any credit that, according to the Law applicable to the cause, allows directing the claim directly against them.
The request for seizure to assign jurisdiction to the Maritime Courts of Panama, and that to make privileged maritime credits effective, must be accompanied by a surety of US$1,000.00 as a guarantee of damages and losses, and the consignment to the order of the bailiff of US$2,500.00 such as conservation and custody expenses of the assets subject to the seizure. For seizures which purpose is to prevent the defendant from dissipating assets, the security to be consigned will be set prudently by the judge and will be between 20% and 30% of the amount of the claim. The plaintiff must accompany his request with circumstantial or prima facie evidence, which proves the legitimacy of his right.
Once the seizure has been decreed by the Maritime Court, the bailiff proceeds to board the ship and communicate it to its captain, indicating that it (or its fuel or cargo) are under the orders of the maritime jurisdiction of Panama.
On the other hand, in the event that the ship is not in Panamanian territorial waters and it is under the Panamanian flag, the Maritime Procedure Law allows the person who assists a justified reason to fear that during the time prior to judicial recognition of their right, will suffer an immediate or irreparable danger, ask the judge for the most appropriate conservative or protective measures to provisionally ensure the effects of the decision on the merits. The petitioner can request to the maritime courts of Panama a prohibition of alienating, encumbering or transferring the ship by means of an annotation in its registry at the Directorate of Merchant Marine and Ship Registry of the Panama Maritime Authority. In these cases, the damages bond will not be less than US$10,000.00 nor more than US$50,000.00.
These precautionary and conservative measures available in law, allow the plaintiff in a maritime process, to guarantee his claim, thus avoiding the dissipation of assets and allowing him to settle his dispute effectively before the Panamanian jurisdiction.