In an unprecedented action, the owners of a vessel attempted to undermine arrest measures by bringing a constitutional remedy before the Concepción Court of Appeal.(1)
Under Chilean law, anyone can file a prompt and summary proceeding regarding the protection of constitutional guarantees (known as Recurso de Protección) where an arbitrary or illegal act or omission of the public authorities or an individual has or may imminently damage, limit, modify or threaten their rights and guarantees as recognised by the Constitution, a treaty or a law, provided that no other legal remedy exists. Depending on the nature of the alleged act or omission, this remedy must be filed within 30 days from:
- the execution or occurrence of the alleged act or omission; or
- when the affected party learns of such act or omission.
In the present case, a port agent and a bunker supplier arrested a vessel due to unpaid fees arising from agency services and disbursements and the supply of bunkers, respectively. The arrest orders were granted by first-instance courts in Valdivia and Talcahuano. The owners provided no guarantees to lift the arrests and lodged no incidental motions objecting to them in accordance with the applicable procedural regulations.
The owners subsequently challenged the arrest orders by filing a constitutional remedy of protection, arguing that their issuance violated several fundamental rights of the owners and crew, including their right to property, as the arrest prevented the owners from performing their duties and would lead to the vessel's deterioration. In addition, according to the owners, the arrest endangered the crew and their rights to freedom of movement, life and physical and mental integrity.
The arresting parties challenged the remedy on various grounds. According to them, there had been no illegal or arbitrary acts since the arrest had been granted by the competent courts. In this case, the owners had failed to challenge the arrest properly and on time and an arrest order neither prohibits a diligent owner from maintaining their vessel nor extends to the crew, as it is restricted to the vessel (the vessel in the present case had already deteriorated at the time of the arrest). In addition, one of the petitioners argued the lack of legal standing as a defendant given that the act that granted the arrest did not emanate from such party but from a judicial resolution issued by a Chilean court.
The Concepción Court of Appeal rejected the remedy of protection, holding that it requires the accreditation of pre-existing undisputed rights and the verification of the existence of an arbitrary or illegal act or omission (ie, irrational or affecting such rights in a haphazard fashion). The alleged arbitrary and illegal act charged to the arrest petitioners was the arrest imposed over the vessel by the competent courts. As regard the defence based on lack of standing as defendant, it was held that the acts under stake are arrest orders decreed by courts in use of their legitimate powers and there was no direct intervention of the arrest petitioners. Therefore, the aforementioned defence was accepted. Last but not least, the court ruled that the remedy had been filed in an untimely manner.
The Supreme Court upheld the Concepción Court of Appeal's decision.
The above decision restricts the use of constitutional remedies of protection in the context of vessel arrest proceedings and imposes a high standard for succeed. The decision helps to protect the institution and procedure relating to vessel arrests and implies more certainty in terms of the outcome of such proceedings.
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