Spanish Commercial Code - Book III - Maritime Navigation and Trade - Title VIII - Procedures in the Maritime Trade

SPANISH COMMERCIAL CODE

Title VIII

PROCEDURE IN THE MARITIME TRADE

§ 1. General rules

Section 1203. Knowledge of any dispute arising out of acts or contracts that result in maritime trade or navigation, including marine insurance of any kind, shall be submitted to arbitration.

Nothing in the preceding paragraph shall not apply if:

1. ° When or interested parties express their willingness to submit to the ordinary courts, either in the same act or contract giving rise to the dispute, or by agreement in writing, prior
the initiation of the trial;

2. ° When it comes to pursuing penal responsibilities that may arise from the same facts. In this case, civil action may be brought before the court hearing the respective criminal or before the arbitral tribunal referred to in the first paragraph;

3. ° In the case of the judgments referred to in paragraph 4. ° of Title IX of the Navigation Act, or those who, in this book have pointed out a special procedure to be followed before an ordinary court;

4. ° In the case of the Treasury or disputes responsibilities are met with port authorities or agencies at the state or customs, or duties controlled by such entities, and

5. ° When the amount of trial does not exceed 5,000 units of account and the plaintiff chooses to
prosecutions before the courts.

Section 1204. When provisions of this Book empowered by court where events occur, or where they arrived and the ship is held, this shall not prevent the establishment of the arbitral tribunal in that place or another if the parties so agree in writing and under their signatures.

However, at the request of the defendant, may move the action in the manner and in the cases mentioned in the second paragraph of Article 1033, before the ordinary judge or arbitrator, as the procedure in accordance with the provisions of previous article.

Section 1205. The appointment of the arbitrator or arbitrators, their qualities and the procedure to be used shall be governed by what the parties agree in writing under their signatures and, alternatively, by the provisions of the Organic Code of Tribunals Referees and Judges the Code of Civil Procedure on arbitration.

Section 1206. Without prejudice to the preceding article, the arbitral tribunal or post to the appropriate jurisdiction in matters referred to in Article 1203 shall have the following powers:

1. ° may admit, at the request of a party, in addition to the forms of evidence outlined in the Code of Civil Procedure, any other kind of evidence;

2. ° may, at any stage of trial proceedings, ex officio of evidence it deems appropriate, with citation of the parties;

3. ° You can call the parties to recognize their presence documents or instruments, to justify their objections and can resolve the matter without incurring any prejudgment about the controversial subject matter, and

4. ° will have the power to assess the evidence according to the rules of sound criticism, the ruling must be entered in the foundations of that assessment.

Section 1207. When applying measures referred, are preparatory precautionary or evidentiary or special deductions, before being constituted by the arbitral tribunal, the applicant may occur before the competent court in civil matters which are being on duty or in the courts that assign particular competition rules of this Book. The foregoing is without prejudice to the prosecution of litigation before the arbitral tribunal to be designated or previously designated to hear the dispute, if the parties have not opted for the ordinary courts.

§ 2. The fact-finding

Section 1208. When an interested party, before filing a lawsuit, want to do an inspection on the state of the ship or goods or other events that are likely to disappear, will occur at the turn of the civil court where they should be inspected, which, without further proceedings, appoint a notary or other minister of faith for finding the earliest possible.

Designee, prior to its mandate, it shall by any means his appointment and the date, time and place that intends to make the verification, or to counterparts who made the call. Diligence will be conducted with or without the assistance of the parties.

When recognition refers to events whose interpretation requires special knowledge of any science or art, the court at the request of the applicant, may appoint a minister of faith insurance official liquidator or other expert, or have faith that the minister appointed will advise the expert, who also appoint outright.

The court may, in any case, personally perform the procedure.

Responsible for inspection of record shall have wrought, leaving her record of having notified the parties of the circumstances mentioned in paragraph two of this article and also record brief observations of these, if they so request. The original instrument will be delivered to the court that made the designation, which will give interested parties who request copies.

The costs of the proceeding shall be borne from the person who requested without prejudice to the particular resolution of the final decision.

§ 3. Trial court

Section 1209. When the parties agree, the evidentiary proceedings that have requested in a proceeding or action referred and which relate to matters covered by this book may be out of court, but with the assistance of counsel for the parties.

If during the production of these tests misunderstandings may arise between the parties, suspend the act reserving the decision of the disagreement to the court hearing process or need to know if it's pre-trial. The foregoing does not preclude the continuation of court with other evidentiary proceedings.

The evidentiary proceedings that may have been interrupted by opposition from either party, may be continued in court if requested.

The court may of its own motion the ratification of the evidence produced out of court.

§ 4. Procedure for the creation and distribution Fund disclaimer

Section One. The constitution of the fund

Section 1210. Any of the persons mentioned in paragraph 1 of Title IV and paragraph 3 of Title V of this Book, deemed entitled to limit liability, or the insurer if any, may occur before any court indicated in the following article and request that proceedings are taken in order to form the background, verifying and settling claims, and to effect distribution in accordance with the rules of priority provided by law.

Section 1211. Court will have jurisdiction in all matters referred to in the previous article and as may be incidental or consequential damages of the same:

1. ° When the disclaimer refers to a ship registered in Chile, the civil court that corresponds to the port of registry of the ship;

2. ° If it is a foreign ship, the Chilean civil court jurisdiction of the port where the accident occurred, or the first Chilean port of call after the accident or, failing that, the court with jurisdiction in the first place the ship is detained there or where it first has been granted a security for the ship, and

3. ° When not yet been initiated proceedings in any court referred to above, and is alleged in another case the limitation of liability as an exception, the same court before which claims shall have jurisdiction on the limitation of the process, if ordinary. In the case of an arbitral tribunal, shall be sent copies of records relevant to the court that has jurisdiction in accordance with the above numbers, for this court to start the procedure for the creation and distribution of fund limitation of liability.

In these cases except for limitation of liability for constitution of the fund may only be made to answer the complaint.

Section 1212. With the exception of number 3. Of the preceding article, the limitation of liability for constitution of the fund can exercise until the deadline to raise defenses at trial executive, or within quotation referred to the Article 233 of the Code of Civil Procedure in the process of enforcement of judgments.

Section 1213. The request for opening of proceedings shall:

1. ° The event which comes from the damage that will affect the limitation;

2. ° The maximum amount of the fund or funds to be provided, in accordance with the relevant provisions of Title IV, paragraph 1 and paragraph 3 of Part V of this Book, and

3. ° The way they constitute the fund, whether in cash or by guarantee. The court shall assess the adequacy of it.

Section 1214. The application for the opening of the procedure is accompanied by a list of known creditors of the petitioner, along with their addresses, the nature of the loans and their amounts definitive or provisional. Also be accompanied by the documents supporting the calculation of the maximum amount of the fund which has pointed to the proponent.

Section 1215. The court, after examining whether the proponent's calculations on the amount of the fund, comply with the relevant provisions of paragraph 1 of Title IV or paragraph 3 of Title V of this Book, as appropriate, issued an order which declared started the procedure. Simultaneously, decide the arrangements provided for the establishment of the fund and ordered compliance with their approval. In the same resolution shall specify the amount the applicant shall make available to the court to cover the costs of the proceedings and appoint a trustee and an alternate to lead and execute all actions and operations that are charged under this paragraph. These appointments must be persons who integrate the list of trustees referred to the Bankruptcy Act, and without requiring the appointment or subsequent ratification by the meeting of creditors.

Section 1216. When the constitution of the fund will give money, the court will be deposited in a bank with knowledge of the trustee and stakeholders. Adjustments and interest to be obtained will increase the fund for the benefit of creditors. If the fund has been set up by a guarantee, the amount will accrue interest at the site of current seat of the court, which shall be recorded in the document establishing the warranty.

Section 1217. Constituted a fund or accepted the warranty on its constitution, the court will say so, and from the date of this resolution, suspend all or a precautionary measure individual performance against the applicant, in respect of claims to which it can oppose the limitation of liability .

You may not implore any rights to the fund, which is exclusively for the payment of claims in respect of which they can oppose the limitation of liability.

Section 1218. When invoking limitation of liability to a creditor to oppose him compensation for injury caused by an event triggering the commencement of proceedings, the provisions of this Paragraph shall apply to any resulting balance. In any case, claims the applicant may be entitled to compensation.

Section 1219. From the date of enactment of the resolution referred to in Article 1217, will be suspended over the interest they earn credits against the applicant.

Section Two. Verification and challenge and opposition to constitution of the fund

Section 1220. Issuance of the resolution referred to in Article 1217, the trustee shall, by registered letter of the constitution of the fund to all creditors whose names and addresses were identified by the applicant in the list referred to in article 1214.

The above information to creditors shall contain:

1. ° Copy of the resolution provided for in Article 1217;

2. ° The name and address of someone who has required the establishment of the fund and to what degree;

3. ° The name of the ship and its place of registration;

4. O A brief account of the event in which the damage occurred;

5. ° The amount of the loan recipient of the communication as the applicant, and

6. ° The indication that the period established has the following article to check your credit.

Section 1221. As are the cards shipped with the aforementioned information, the receiver extracting the same information and publish it along with the list referred to in Article 1214, once in the Official Gazette and a newspaper in the place that works the court before which the procedure has been opened, indicating that the creditors have thirty consecutive days from the date of the last publications to verify their claims and accompanying documents to prove it.

Section 1222. Within the same period indicated in the previous article, that these effects will be fatal, any creditor may object to the limitation on the grounds that do not meet the legal requirements to exercise this benefit. Within the same period, the creditors may object to the amount of the fund.

Oppositions or objections shall be determined under the summary procedure, with the exception of Articles 681 and 684 of the Code of Civil Procedure.

Section 1223. In all the procedures in this paragraph, the trustee will act as a party and will seek a progressive course to cars, using all the means provided for in the laws for that purpose.

Section 1224. The trustee will be the list of creditors entitled to participate in the distribution of the fund, the judge will propose the payment of claims. Distribution will comply with rules on preferences or privileges provided in this book.

The fund balance will be distributed in proportion to the amount of credit pertaining to the limitation and not receiving preference or privilege.

Section 1225. When there are claims with appeal or declaration can not be resolved, the liquidator will make it deems prudent reserves proportional, while distributing the remainder of the fund according to the above rules.

Section 1226. In matters not provided for in this Book, the verification and appeal of claims and deals are governed by the pertinent rules of the Bankruptcy Act. Similarly, the trustees will apply the grounds for removal set which establishes the law.

Section 1227. As soon as you become exhausted the partitioning process, the receiver shall render a final account to the court which appointed him and he shall declare the limitation proceedings.

If you still remaineth remaining, it will be restored to a person who has composed the background. In addition, if after three months of issuing the resolution indicated in the preceding paragraph, any remaining creditors that have not appeared to withdraw funds, the remainder will be given to who was the background, can these creditors reluctant, claiming their contributions to within a period of one year since it was issued the above resolution.

The rules of this Article shall not apply to the remainder to occur when the fund established refers to the limitation of liability provisions of Title IX of the Navigation Act, which charged no fees, will be used to purchase items and equipment to prevent or mitigate pollution of the water, proceeding by the Directorate General of Maritime Territory and Merchant Marine, in the manner determined by the regulations enacted to that effect.

Section 1228. Any question that does not have a special procedure shall be handled in a separate file, as an incident between who makes and which seeks to limit liability.

Other creditors interested in the background, may act as third parties.

Section 1229. The appeals that may be required under the procedure referred to in this paragraph shall be granted the sole purpose of execution.

Against the decision on appeal will not proceed to appeal.

Section 1230. The procedure under this paragraph shall apply to the creation and distribution of the limitation fund, where you can exercise the right to limit liability for damage resulting from oil spills and other harmful substances, referred to in paragraph 2. No. Title IX of the Navigation Act, except for the competent court to hear such matters.

§ 5. Of the proceedings on hold or retention of ships and their uprising

Section 1231. The holder of a claim that enjoyment of a privilege on a ship, the provisions of this Code or the laws that complement may occur before the turn of the civil court where it is or civil court that has jurisdiction of the day under the rules of this Book, to request a ban on the departure of the former, from the port or place where you are, in order to guarantee the exercise of the lien or to secure compliance with a court decision that may involve special the ship concerned.

The court addressed shall accede to that request, without further ado, if accompanied by a history that constitute presumption of the right claimed. If such records are inadequate or even possess no manifest petitioner, the court may require that constitutes security for any damages caused if it later proves that their request was unfounded.

Section 1232. For purposes of this paragraph, the prohibition of sailing terms, retention, attachment and immobilization are considered synonymous. It is not understood in these terms the seizure of a ship procedures enacted in haste.

Section 1233. The retention or attachment to in this paragraph may also be ordered on the port or place where the ship is expected to arrive.

If the court before which requests the root has jurisdiction of the action to be exercised, the roots may be made or retention is practiced in any other port where the ship arrives.

Section 1234. A ship may be subject to special precautionary measure referred to in this paragraph, the following cases:

a) When the ship is the material object on which the privilege is exercised, or

b) When the creditor holds a privileged over another ship belonging to the same owner, or is subject to the same management, or is operated by the same person.

Section 1235. The attachment or retention of a ship will be fulfilled by notifying the maritime authority of the place where they occur, or trade or notification to the Director General of Maritime Territory and Merchant Marine, if the vessel is not within the jurisdiction of ordered by the court action. Not required prior notice to the person against whom action is sought.

In urgent cases, the court may hold communicate by telegram, telex or other reliable means.

When the case of a management reference, the roots must also notify the person against whom the request within ten days from the resolution that granted it. This period may be extended by the court, for good reason.

The lack of notification within the said period or the last of its extensions, the produce automatic expiration decreed roots, which will be communicated automatically to the relevant maritime authority.

Section 1236. When the matter is referred precautionary management, the applicant shall state the proposed action and summarily conclude its foundations. If the action relates to the ownership or possession of the ship but the recovery of any pecuniary benefit, the actor must indicate the amount and form of security it considers sufficient to ensure the outcome of the action. If the request is made simultaneously with the complaint or in the course of litigation, the plaintiff indicated it its claim on the bond amount and form of constitution.

As soon as she provided the guarantee requested, the court will lift the roots without further proceedings. Proceed in the same way if the parties agree on these respects. The court may also qualify the adequacy of the security offered by the defendant, or incidental to handling this matter. In any case, the amount of the guarantee may not exceed the established value of the vessel.

The guarantee granted subrogated to the ship as the respective sole purpose of the privilege.

Section 1237. The person who has lodged the security or who it affects, in molten form may request at any time, to modify it, reduce or elk.

Efforts to raise an attachment does not impair the petitioner's right to claim or oppose further exemptions or defenses that make him competent. Shall not be considered as a waiver of the right to limit liability under Articles 889 and following.

Section 1238. The request for retention or opposition to a root, and the objection to the amount or form of a security, shall be treated as incident and without the interposition suspend the effects of the contested decision.

The request for modification, reduction or lifting of a security of a root replacement, will also be processed as an incident.

Section 1239. As this paragraph does not, or if no agreement of the parties, shall apply to special measures at issue here, the rules on precautionary measures referred and titles IV and V of Book II of the Code of Civil Procedure.

Section 1240. The provisions of this paragraph shall not preclude the exercise of other precautionary measures that may apply common law to a creditor to ensure the outcome of your action, or where no case of a credit enjoyment of privilege on a ship.