Maritime law. Attachment, conditions for establishment. Inadmissibility of the cross-appeal seeking to supplement the enacting terms of the judgment of the first court

Appeal against the measure of the judicial liquidator rejecting the request for reinstatement of the statement of claim and for denial of the statement of claim as late. Delay in lodging the appeal.

Abstract

The appellate court in the application for a provisional attachment order does not have the power to rule on the legal relationship between the parties, and it is not for that court to verify the reality of the payments, the admissible means of proof in the matter or the right to request late payment penalties. In order to establish a security measure in the form of seizure of ships, it is not necessary to prove before the court a claim that is certain, of a fixed amount and due, since the security measure is intended to preserve the creditor's rights until an enforceable title is obtained to establish such a claim. If the creditor had a claim that was certain, of a fixed amount and due, it would no longer be necessary to apply the precautionary measure and he could proceed directly to enforcement.

Even if the action concerns the attachment of three items of property, since the first court understood to refer to only two of them, it is clear that it omitted from its analysis the fulfilment of the conditions for the attachment of the third item of property. That is because the court did not make a request for sequestration in respect of a general set of assets, but, following the submission of the application for a writ of summons, analysed the specific conditions of that request by reference to the specific assets.

The fact that the omission arose from the introductory part of the judgment itself is not such as to render this ground of appeal admissible, in the absence of a request to supplement the enacting terms.