Panama: Maritime Injunctions

Injunctions Requests before the Panama Maritime Court

In Panama, shipping is one of the most important economic engines of the country. The Canal, the State of the Art Container Ports of Balboa, Cristobal, Evergreen and Manzanillo, the expanding multimodal activities and the ship registry are all factors that are shaping the country into an important maritime nation. 

Panama has one of the most important merchant fleets in the world with thousands of ships registered in Panama and flying the Panamanian flag in all corners of the world. When legal situations arise concerning a Panamanian registered vessel or its owners, operators, etc , Panama Maritime Law ( both substantive and procedural ) will certainly be under consideration at some point. Many are the occassions were lawyers and clients find themselves trying to find possible measures to pressure and pursue debtors.

In this article, we briefly refer to the injunctive reliefs available in Panama.

The Panama Maritime Procedural Law considers the following injunctions (or “precautionary measures” as denominated by Panama legislation):

 

Injunctions for In Rem Claims

There are many instances where a vessel or a ship owning company may incur in debts or liabilities which may result in painful hazards for creditors to recover, with the additional pressure for the latter party that most marine related credits and liens in Panama maintain a time bar of one (1) year. Such may be the case when a supplier has been left hanging with a credit, against a vessel whose route avoids choice of law jurisdictions or where no reliable court may be found to enforce the lien.

The Panama Maritime Procedural Law No. 8 of 1982 contemplates the possibility to file injuctions against those Panamanian flagged vessels not transiting Panamanian waters in Articles 168(4) and 170, third paragraph.

The injunction, when admitted by the Panama Maritime Court, will essentially consist in the recording at the Panama Public Registry of an annotation at the vessel´s property title informing that there is a pending claim and order of arrest before the Panama Maritime Court.

This injunction remedy is contemplated for maritime liens exclusively and its prerequisite is that a claim against a Panama registered vessel must be presented before the court. The effect of the annotation is limited to give notice of the legal action; it does not imply legal arrest, which may only be executed if the vessel is within the jurisdiction of the Maritime Court.

If and when the vessel is physically arrested in Panama an annotation by order of the court will be available whereby the vessel is put out of commerce for the time the vessel remains arrested or until it is judicially sold.

These injunctions essentially serve various purposes, especially when the vessel cannot be physically arrested:

1 - Maintain alive (and stop the statute of limitations) a claim against a vessel before the termination of the one year time bar. Consequently, this permits pursuit of payment satisfaction beyond the statute of limitations

2 - Serve to give notice to other present or future creditors that the vessel has pending claims. By notice of the mere existence of the injunction, potential buyers or financing institutions may preclude themselves from doing business with the vessel or shipowner due to the pending litis notification.

 

Injunctions available for In Personam Claims

“In personam” claims are those maritime originated claims were the creditor may not pursue his claim against the vessel directly, but against the owners, charterers, operators, etc. , including any maritime commerce claim which may not necessarily involve a ship. 

Article 203 of Panama’s Maritime Procedural Law, may allow injunctive relief to “in personam” plaintiffs. Article 203, as per its drafting (based on its immediate predecesor Art. 558 of the Civil Procedure Code) is very broad in its interpretation and applications.

Article 203, in purpose and definition, may be compared to those established for the “Mareva” injunctions under English Law. 

Fundamentally, Article 203 provides the possibility that a plaintiff may request a precautionary measure (protective, preservative, stoppage) to guarantee and secure the outcome of a judgment until the end of the litigation. These measures may translate for example, in an injunction to stop movement of assets. 

 

The necessary prerequisites to obtain such relief (or precautionary) measure from the Maritime Court are:

1. The previous or concomitant initiation of a claim before the Panama Maritime Court.
2. Prima facie proof of the possible dissipation of assets.
3. Possible existence of property located or registered the Republic of Panama.
4. To comply with a security bond for damages, to be between 10 to 50 thousand US dollars.

In principle, this injunctive relief once approved by the court may serve the same purposes that the one available for the in rem claims. 

Both injunctions have the characteristic that when requested the court must consider and decide the claimant´s request ex parte.
It is also worth mentioning that for in personam claims litigation, the plaintiff must continue pursuing the summoning of the defendant, particularly if the domicile of the defendant is not established in Panama and regardless that the injunction has been effected.

It is important to consider that because of its drafting origins and existing interpretation and application in civil courts (via Art 558 of Civil Procedure Code), Art 203 is subject to more uses in litigation (similar to the Mareva injunction) other than the specific targeted assets of a defendant and it may include requests to impose orders to do, orders to not do, to suspend and others.

 

Maritime Practice

Maritime Litigation	Ship arrest and injunctive relief, Defense of personal injury claims, Bunker claims, Carriage of goods claims, Charterparty disputes, Marine Insurance and reinsurance claims, Collision, salvage and related marine casualties, General average and cargo transshipment, Shipbuilding, ship repair, ship sale and MOA disputes.
Commercial Maritime Transactions	Drafting of an litigation relating to charter parties, berthing agreements, stevedoring contracts, contracts of carriage, service contracts for ocean transportation and terminal leases, ship repair contracts, sale and purchase agreements  and joint venture agreements.

The Ship Registry fees vary according to the size of the vessel, from US$200.00 for a vessel of up to 500 G.T. to US$3,000.00 for vessels more that 10,000 G.T. An application for the registration of yachts, pleasure crafts or non-profit vessels exclusively for private us in only required to pay an initial registration fee of Five Hundred United States Dollars (US$500.00) and an annual tax of One Thousand United States Dollars (US$1,000.00).
Our professional fees are on average U$1,400.00 for Ship or Yacht Registration and an annual fee of US$550.00 for Provision of Registered Agent and Registered Office.

 

Provisional Registration of Vessel:

Professional fee	US$  850.00	US$ 1,400.00
Registered Agent fee	US$  550.00
Registry Fees
ï‚·  Administrative fee	US$  100.00
ï‚·  Registration Fee	US$  200.00
ï‚·  Service Tax	US$  200.00
ï‚·  Inspection Tax	US$  500.00
ï‚·  Manning Certificate	US$  100.00
Radio License	US$    50.00
1 Flag	US$    50.00
Annual Tax	US$    10.40	US$ 1,210.40
TOTAL		US$2,610.40

To register a Deed of Mortgage, the original of the deed plus one copy is to be provided for registration.  The fee for registration of a deed is as follows:

Registration of Deed of Mortgages:          

Profesional Fee	US$ 950.00	US$ 950.00
Registry Fees
ï‚·  Administrative fee	US$  100.00
ï‚·  Recording fee	US$  750.00
ï‚·  Certificate of Title	US$  300.00	US$ 1,150.00x
TOTAL		US$ 2,100.00

Upon receipt of the certified copies of all other documents i.e. a certified true copy of a tonnage certificate issued to a survey company authorized by Immarbe, a Notarized Bill of Sale, Original Deletion Certificate, Safe manning certificate/radio license and the payment of an additional administration fee to the registry of US$100.00, a permanent registration certificate will be issued.

Interruption of Time Bars in Panama

Maritime related time bars are regulated in Panama by article 1651 of the Commercial Code which establishes that the general statute of limitations for maritime transactions is of one year. This time limitation is applicable to all sorts of claims, be it in personam or in rem claims, with the following exceptions:

• It has been recognized in the Carirubana vs Assicurazioni Generali, that damages and salvage claims arising out of collision will enjoy a two years time bar limitation further to Article 1470 of the Code of Commerce.
• Following the voluntary sale of a vessel, credits prior to the sale maintain a six months time bar pursuant to article 1088 of the same Commercial Code.

If a Panama registered vessel or its owners have not been subjected to complying with a debt before a foreign jurisdiction within the year of occurrence of the transaction, it may be of a strong consideration that interruption of the time bar may be requested before either of the two existing Panama maritime courts. 

Under article 1649-A of the same Code, time bars may be interrupted only in the event of:

1. Written recognition by debtor;
2. Renovation of the transaction instrument or
3. Filing of the claim in court

In the first 2 situations, the one year general time bar starts to run upon the date of recognition of the debt or the date where title of debt is recorded, as also affirmed by the Supreme Court of Panama in the decision of M/N Conquista.

Under the third alternative, via judicial claim, it is necessary to follow Law 8 of 1982 better known as “Panama’s Law of Maritime Procedure” and article 690 of Panama’s Judicial Code in regards to time bar interruptions. 

n order to make the interruption effective, it is essential that a claim is filed with enough anticipation to the one year expiration date. Article 1650 of Panama Commercial Code establishes that the general one year time bar period starts to run as from the date the debt is payable and subject to judicial collection; in Remsa SA vs Wilford & Mackay, the Supreme Court recognized that in cargo claims the period starts to run from the time of delivery of the goods. Generally, it will be the date of the receipt, if it is a common debt or pursuant to contractual provisions, in a more complex transaction.

Following the presentation of the claim, it is necessary to give the proper notices to the defendant. It is common and possible that neither the vessel nor the owner may be available within the jurisdiction of Panama at the time of presentation of claim. For this reason, it will be necessary for the claimant to prepare and publish a public notice, duly certified by the court, of the claim for 3 consecutive days on a well-known local newspaper. Upon compliance of this procedural requirement, claimants’ counsel can continue seeking progress in summoning the defendant before Panamanian jurisdiction or providing assistance for the interruption of the time bar before a second jurisdiction.

The possibility of interrupting a time bar is a practical tool available to creditors that significantly will help to extend the life of a claim and the consequent possibility of seeking payment in Panama or abroad, as it can also assist to support the efforts of lawyers and claimants in other jurisdictions where the vessel or its owners may be located.

 

Commercial and Pleasure

• Pleasure Yacht

The Panama Ship Registry maintains flexible requirements and fees for those yachts registered in Panama.

The principal advantage offered to pleasure yachts is that the registry has established a flat registration fee, regardless of size or tonnage of the yacht. 

For Panamanian owned yachts, meaning by this that the yacht is property of a Panama company or a private interest foundation the registration fee is of US$1,000.00. to be paid every two years, time upon which navigation documents will also be renovated.

Documentation required is simple: bill of sale, admeasurement certificate, cancellation of previous registry (if not a new building) and power of attorney.

Proceedings are expedited and can be carried out in two different stages:

• Provisional navigation documents may be obtained by providing copies (faxed) of the documents required.
• Permanent navigation documents may be obtained immediately upon presentation of original copies of documents required. Proceedings normally take from 3 to 4 days.
• Commercial Yachts

The said classification may be obtained base on standard passenger safety and MARPOL standards for certifications. 

A classification company duly authorised by the Panama Ship Registry must issue all certifications. 

Panama commercial yacht registration is available megayacht vessels. Registration fees are paid based on the vessel gross and net towage.

Panama yachts license for captain and crew may also be obtained. 

 

Dr. Juan José Espino.

jjes@padela.com

 

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