La hipoteca naval en derecho español y peruano

The maritime mortgage is a mechanism to promote the construction and sale of ships, through the constitution of a guarantee that directly subjects the same to the fulfilment of the guaranteed obligation. The article deals with the regulation of the naval mortgage in Spanish and Peruvian law, respectively. They have important points in common, as both States are parties to the 1993 Maritime Liens and Naval Mortgage Convention (hereinafter, the 1993 Convention). The limited success of the 1993 Convention in creating an international framework for the recognition and enforcement of naval mortgages (only 19 States) is not a limitation that affects ships, but in general mortgages on movable property. The operators distrust the mortgage when it falls on movable property, due to the difficulty due to its displacement of ensuring with said asset the fulfilment of the main obligation. The lack of a widely disseminated international standard does not ensure that the naval mortgage, for example, the one established in Spain, is recognized or enforced in the foreign country in which the ship has moved and pre-emptively seized, if this is possible. In addition, the law applicable to the naval mortgage is that of its State of registry, but if it is recognized abroad, the execution procedure will be governed, as a rule, by the legislation of the State where the execution takes place. This is precisely what is foreseen between the States parties in accordance with art. 2 1993 Convention. The United Nations Convention on the International Effects of Judicial Sales of Ships, also known as the Beijing Convention on the Judicial Sale of Ships, of which Spain is a signatory State, is not yet in force, which will provide legal certainty to the execution of mortgaged ships between the States parties.