Shiparrested.com Network » Africa

Contact Person 1: Mr A. Hosney (A.hosney@hosneylaw.com)
Contact Person 2: Ms Hadir Raafat.
Contact Person 3: Ms A. Aarag.
AOH: Mr Farag.

Other Offices: Alexandria, Suez, Cairo.

Admiralty law, Shipping & maritime law, Litifation, Claims.

Ports the firm operates in: Alexandria, Port Said, Port Said East, Suez, Damietta, Cairo, Arish, Safaga, Hurghada.

Ship Arrest in Tunisia, by Maître Brahim Latrech

editor — Wed, 10 Nov 2010 10:36:35 +0000

BRAHIM LATRECH LAW FIRM
latrechbrahim@yahoo.fr
http://www.cabinetavocat-bl.com/
Tel.: 00 21 624 292 700
Fax: 00 21 671 891 827

1. Please give an overview of ship arrest practice in your country.

In Tunisia the Code of Maritime Commerce (Code de Commerce Maritime) and the provisions of the Code of Civil procedure remain the major source of ship arrest.

2. Which International Convention applies to arrest of ships in your country?

No international convention applies in Tunisia .Tunisia has not ratified any of the International Conventions related to Ship Arrests.

3. Is there any other way to arrest a ship in your jurisdiction?

There are some others ways to arrest ship in Tunisian ports
- Arrest in accordance with court or arbitration award
- Arrest of ship under a criminal matter
- Arrest of ship under a safety matter, pollution, clandestine immigration.

4. Are these alternatives e.g. saisie conservatoire or freezing order?

These measures are similar to saisie conservatoire or freezing order.

5. For which types of claims can you arrest a ship?

Maritime claims mentioned in article 71 of the Tunisian Code of Maritime Commerce (Code de Commerce Maritime)
(a) The legal costs payable to the State and the expense incurred in the common interest of creditors, to preserve the vessel or to procure the sale and distribution of the prize.
(b) Tonnage or harbour dues or expenses incurred by the administration to move the ship.
(c) Creditors arising from the employment contract of the captain and crew
(d) Remuneration for rescue and assistance
(e) Compensation for collision, bodily injury to passengers or crew, cargo or baggage loss.
(f) Claims arising from contracts awarded by the captain for operations to preserve the vessel.

6. Can you arrest a ship irrespectively of her flag?

In Tunisia the mere presence of any vessel at Tunisian waters gives the court jurisdiction in rem over the vessel and in personam over the owners, operators and charterers. Tunisia does not recognize governmental immunity for state owned commercial trading vessels.

7. Can you arrest a ship irrespectively of the debtor?

In Tunisia, the claims subject to Tunisian Law permit the arrest of a vessel, regardless of whether the underlying debt is incurred by owner, disponent owner, operator or charterer. Under Tunisian Law anyone with authority binds the vessel in rem, if the supplier is not timely notified otherwise The ship can be arrested even if the owner of the ship is not the debtor of the maritime claim. The owner of the ship, in order to have his ship released from arrest, has to give a guarantee for the payment of the claim of the author of the arrest. This means that the owner of the ship will have to guarantee the payment of the claim, even if a third person (charterer, issuer of the Bill of Lading) is the debtor toward the arresting party.

8. What is the position as regards sister ships and ships in associated ownership?

Sister-ship arrests may be effected in Tunisia in limited cases . Exp the same owner ship

9. what is the position as regards Bareboat and Time-Chartered vessels?

A vessel that is in the ownership of the charterer can be arrested for a maritime claim against a time charterer.

10. Do your Courts require counter-security in order to arrest a ship?

Tunisian law practice does not impose on the claimant the deposit of a counter-security to cover costs, charges, damages, fees or other expenses deriving from a potential wrongful arrest But under the provisions of Article 104 of the Code of Maritime Commerce (Code de Commerce Maritime) , the seizure may be subject to the condition that a bond or guarantee is validated from Applicant

11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?

There is no substantial difference between arresting a ship for a maritime claim and a maritime lien.

12. Does you country recognise maritime liens? Under which International Convention, if any?

Tunisia recognizes maritime liens under the dispositions of the Code of Maritime Commerce (Code de Commerce Maritime) , not under any Convention.

13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm?

Usually two working day is enough for our law office to arrest a ship.

14. Do you need to provide a POA, or any other documents of the claim to the Court?

No power of Attorney is requested.

15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed?

According to Tunisian Law, the arrest of a vessel is made through an order on request. For this purpose, all documents proving the debt and the expenses are required (please note here that all the documents to be presented to the judge must be translated into Arabic language). Documents filed electronically are accepted.

16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?

Tunisian Courts will accept jurisdiction over the substantive claim once a vessel has been arrested within Tunisian territorial waters.

17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?

We must introduce a case validation within a period of one month if the arrest is lifted once this period surpassed.

18. Do the Courts of your country acknowledge wrongful arrest?

In an only case if the claimant knew it had no maritime lien or right of arrest and nonetheless proceeded with the arrestand with the intention to cause damage to the defendant. The burden of proof in relation to these matters rests on the Defendant who claims damages for wrongful arrest.

19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?

The Tunisian courts are not generally inclined to lift the veil of corporate personality.

20. Is it possible to have a ship sold pendent elite; if so how long does it take?

In Tunisia, Seizure execution immobilize the ship, by result, the procedure of sale of the ship arrested is made through a public auction and it generally takes three to six months.

Ship arrest in Morocco, by Hakim Lahlou, Lahlou-Zioui & Associés

editor — Tue, 26 Oct 2010 14:18:20 +0000

Lahlou – Zioui & Associés
Web: http://www.lahlou-zioui.com/
Email:lahlou.zioui@gmail.com
Tel: + 212 (0) 522 26 00 08
Fax: + 212 (0) 522 26 69 28

Overview

1. Please give an overview of ship arrest practice in your country.

Legally speaking, Morocco is certainly one of the most attractive forums for vessel arrests:
- the procedure is simple, fast and flexible: no power of attorney required, application is heard under summary and non adversary procedure, no original documents required,
- an alleged maritime claim is sufficient,
- a vessel can be arrested whoever is the debtor (even if Owner is not the debtor),
- no counter security is required
- no preliminary claim on the merits required and no obligation to start legal procedure on the merits
- no impact on jurisdiction

In order to get the arrest lifted, Opponents should either :
- put up security in the form of bank guarantee or cash deposit before the court; practically speaking, it is also common to accept P&I club LOU under the condition to replace same by a bank guarantee within 8 or 15 days, or
- seek a judicial release bearing in mind that this suppose a proceeding to be filed under an adversary and summary procedure which takes at least a couple of days: release order would be granted if Owners prove that there is no legal basis for the arrest (if for instance there is no maritime claim or that the vessel is not concerned by the claim)

Applicable Laws

2. Which International Convention applies to arrest of ships in your country?

1952 Brussels convention (for the unification of certain rules relating to the arrest of sea going ships) is applicable in Morocco. It was ratified on 11.07.1990 and came into force on 11.07.1991.

3. Is there any other way to arrest a ship in your jurisdiction?

Moroccan vessels and notably fishing boats can be arrested by Moroccan creditors in application of the national law instead of Brussels Convention.
In the meantime, vessel detention can be carried out by port state control authorities or by Royal Navy in case of violation of administrative or criminal law; however this has nothing to do with an arrest under Brussels convention.

4. Are these alternatives e.g. saisie conservatoire or freezing order?

Under Moroccan law, arrest is a conservatory seizure aiming to secure a claim. It is called “saisie conservatoire”.
“Saisie execution” requires an enforceable title and can lead to the judicial sale of the arrested vessel.

Claims subject to ship arrest

5. For which types of claims can you arrest a ship?

Vessels can be arrested as security for any maritime claim among those listed under article 1.1 of Brussels Convention.
On top of this, Moroccan courts accept, through an extensive interpretation of article 1.1, to grant an arrest order even in relation with claims arising out of provision of services (such as claims of ship classification companies …).
In any case, it is sufficient to prove an alleged maritime claim; thus, it is not necessary to prove at the arrest stage that the arrestor has a valid claim which is bound to succeed on the substantives merits. So, a prima facie evidence of a claim is enough.
In the meantime, if both parties (applicant and owner of the vessel) are Moroccans, Moroccan law would be applicable. In that case that there is no restriction an per the nature of claims in relation of which arrest can be granted.

6. Can you arrest a ship irrespectively of her flag?

Yes. A ship can be arrested whatever the flag she is flying.

7. Can you arrest a ship irrespectively of the debtor?

Yes. The ship in relation of which the maritime claim arose can be arrested whoever is the debtor; thus, vessel can be arrested even if :
- she is under charterparty whilst the debt is related to Owners or previous charterers
- she is operated by Owners whilst the debt is related to previous charterers
In any case, security has to be put up on behalf of Master of the vessel as representative of Owners and/or Charterers

8. What is the position as regards sister ships and ships in associated ownership?

Claimants are entitled to arrest either the vessel in relation of which the maritime claim arose (whoever is the debtor) or any other vessel in the same ownership that the said vessel.
Thus, it is possible to arrest sister ship vessels (i.e owned by the same person who was the owner of the ship in connection with which the claim arises at the time the claim arose).
As per associated vessels, please see Q. 19 “lift of the corporate veil”.

9. What is the position as regards Bareboat and Time-Chartered vessels?

The vessel in respect of which the maritime claim arose can be arrested even though she was under bareboat charterparty or time-charterered.
In the meantime, as per article 3.4 of Brussels convention, in case the debtor is the charterer, claimant can arrest either the vessel in respect of which the maritime claim arose or any other vessel owned by charterer but not other vessels owned by registered owners.

Arrest Procedure

10. Do your Courts require counter-security in order to arrest a ship?

Even though Moroccan law provides such a possibility, practically speaking, counter security s is never required.

11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?

No. From a procedural point of view, there is no difference.

12. Does your country recognise maritime liens? Under which International Convention, if any?

Maritime liens are recognized by Moroccan law that provides a list of the privileged debts.
Morocco has not ratified any international convention on maritime liens.

13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm?

Upon receipt of instructions and relevant documents, arrest order can be carried out within 24 hours (during week days and court opening time).

14. Do you need to provide a POA, or any other documents of the claim to the Court?

No power of attorney is required under Moroccan procedure law.
Arrest application should just be supported by relevant documents proving the alleged maritime claim and the relation with the vessel the arrest of which is sought.

15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed?

At this arrest stage, no original documents are required.
However, court is sometime reluctant to take into consideration documents printed from internet (such as equasis website .. ); thus, it is preferable to disclose copy of original documents in whichever form of transmission they are obtained.
In the meantime, when documents are drafted in English, some judges familiar with English language, accept to consider same. However, judges may require at least an informal translation. However, if a proceeding for judicial release is filed by Opponents, Arrestors could be obliged to disclose translation into Arabic of relevant supporting documents.
As per the procedure on the merits, court or Opponents are entitled to demand original documents or certified copies.

16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?

Moroccan court would accept jurisdiction only in the cases listed in article 7 of Brussels convention or if parties agree to provide competence to Moroccan court.

Miscellaneous

17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?

There is no legal obligation for arrestor to start legal action on the merits within a specific time (in so far as time bar limits are respected).
For the sake of completeness, it should be specified that a couple of years ago Casablanca court was used to impose to arrestors the obligation to start a legal action on the merits within 30 days from the date of the arrest order. However, court stooped to do so on the grounds that as per article 7.4 of Brussels Convention such an obligation can be imposed only in case the court in which the arrest was made has jurisdiction to decide the case on the merits.

18. Do the Courts of your country acknowledge wrongful arrest?

A claim seeking remedies for wrongful arrest supposes that the arrest was made knowingly that it was unlawful.
Thus, Moroccan courts are very reluctant to accept to grant remedies for wrongful arrest unless malice of arrestor is evidenced.

19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?

As principle, sole the vessel in relation of which maritime claim arose or any other vessel in the same ownership can be arrested.
However, given single ship company practice, Moroccan courts accept to pierce corporate veil considering vessels owned by distinctive company as being under the same ownership if applicant can prove that both vessels pertains in fact to the same economical entity (same addresses, same management, same shareholders …).

20. Is it possible to have a ship sold pendente lite; if so how long does it take?

Conservatory arrest can be converted into an executory arrest in so far as arrestor gets an enforceable title (e.g a definitive court condemnation on the merits).
This procedure including judicial sale is rather long and complicated. It would take not less than a couple of months.

LAHLOU – ZIOUI & Associés

editor — Fri, 23 Apr 2010 08:25:43 +0000

*** Exclusive member for Morocco ***

7, Rue Bendahan
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Tel: +212522260008
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Website: http://www.lahlou-zioui.com
Email: lahlou.zioui@gmail.com

Contact Person 1: Hakim LAHLOU
Contact Person 2: Mohamed LAHLOU
Contact Person 3: Ali ZIOUI

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