Ship Arrest in Egypt, by Nabil Farag
Freeport Buildind, El – Nahda & Mamfees St.,
First Floor, Unites No 7, 8, 9, El – Shark.,
P.O.Box: 1036. Port Said, Egypt
Tel: +20663320263
Fax: +2 0663 355061.
E-mail: nbllaw@interlink.com.eg
Website: http://www.nbllaw.com/
1-Overview.
In order to proceed an arrest order against an owing vessel in Egypt, in accordance with the Egyptian Maritime Trade Law No 8/1990, Article No 60, It’s required to preparing some steps such as filling an arrest application (an arrest petition) to the competent court by their jurisdiction, This petition must explain the matter. A brief of the relation between the claimant and defendant, and the nature of that debit which is one of debts indicated in the Egyptian Maritime Trade Law No 8/1990, Article No 60.
Required documents which relate this debit to the arrest application as above indicated in clause no (1) must be presented and attached with a certified translation into Arabic for all documents, for example (In case of the arrest application was relating to outstanding invoices for insurance installments issued by a marine insurance policy, We have to present all outstanding invoices, Insurance Policy and other documents such as mutual correspondents, Faxes, E-mails other agreements which prove this debt).
A legalized power of attorney must be granted by the client (the claimant) who fills the arrest application. This power of attorney must be signed by the client then certified by the apostil then legalized by the Ministry of Foreign Affairs and by the Egyptian consulate in the client’s country. This power of attorney must be translated into Arabic by the Ministry of Justice in Egypt which takes from three to five days to be finished.
2-Applicable Laws.
The applicable laws are the followings. The Egyptian Maritime Trade Law No 8/1990, is the first applicable law for the arrest procedures, In addition to the Egyptian Commercial law and the Egyptian substantiation law.
The 1952 Brussels’ Convention of the ship arrest is applied too on the ship arrest in Egypt.
Otherwise, There are some other applicable laws can applied on the ship arrest in Egypt such as the Egyptian administrative law which allow to the governmental authorities and public establishments to arrest a ship when it has been owe for them as example for a port dues or any other governmental debits, Then the administrative authority or the public establishment have the right to arrest the vessel directly by their order and without getting an arrest order form the court.
3-Claims subject to ship arrest.
The legal recognizing liens in Egypt according to the Egyptian Maritime Trade Law No 8/1990, According to Article No 60, as the following:
A – Port and water courses duties.
B – Expenses outlaid for removal, pick up, or lifting the ship wrecks and merchandise.
C- Damages caused by the ship by cause of collision, pollution or other similar marine incidents.
D – Casualties in lives or bodily injuries caused by the ship, as a result of using and exploiting it.
E – Contracts and deeds for using or renting the ship.
F- Insurance on the ship.
G – Contracts for transport of goods by virtue of a rental contract or bill of lading.
H – The destruction of goods and luggage as transported by the ship, or their damage.
I – salvage and rescue works.
J – Joint losses.
K – Tugging the ship.
L – Piloting works.
M – Supply of materials or articles necessary for using the ship or its maintenance, whatever the source such supplies are being obtained.
N – Building, repairing or furnishing the ship, and expenses of the ship’s presence in dockyards.
O – Salaries and wages of captains, officers, the crew and the maritime and shipping agencies.
P – Amounts expended by the captains, forwarders, renters, or maritime and shipping agencies for account of the ship or its owner.
Q – Disputes over the ship’s ownership.
R – Disputes over the common ownership of the ship, or over holding or exploiting and using it, or the rights of ship – owners in common to the amounts resulting from using and exploiting the ship.
S – Marine mortgage.
The arrest procedures are applicable irrespectively of the flag of ship whatsoever, also irrespectively of the debtors. These procedures also are applicable for the bareboat and time-chartered vessels as explained. The procedures also are applicable on the sister ship and ship in associated owner-ship.
4 -Sister ship/associated arrest.
The sister ship to the owing vessel is allowed to be arrested in Egypt in accordance with the Egyptian Maritime Trade Law No 8/1990, Article No 61, which allows the claimant to arrest the sister ship through the same procedural requirements as above mentioned. The referred Article No 61 was stated that:
“Whoever holds to any of the debts specified in the previous article may levy an attachment on the ship with which the debt is connected or any other ship to be owned by the debtor if the latter ship was in his possession at the time of instituting the debt”
“However, no attachment may be levied on another ship than the one to which the debt is related if the debt is one of those prescribed in items Q, R and S of the previous article”.
These referred items as indicated in the article No 60 are the followings:
Q – Disputes over the ship’s ownership.
R – Disputes over the common ownership of the ship, or over holding or exploiting and using it, or the rights of ship-owners in common to the amounts resulting from using and exploiting the ship.
S – Marine mortgage.
5- Arrest procedures.
(1) Filling an arrest application (an arrest petition) to the competent court by their jurisdiction, for example: if the vessel berthed in Port Said port or passing Suez Canal by Port Said port, so the jurisdiction will be held to Port Said court, basically to the Chief of First Instance Court. And if the vessel berthed in Suez Port or passing Suez Canal by Suez port, so the jurisdiction will be held to Suez court, basically to the Chief of First Instance Court and thus, this petition must explain the matter. A brief of the relation between the claimant and defendant, and the nature of that debit which is one of debts indicated in the Egyptian Maritime Trade Law No 8/1990, Article No 60.
(2) The required documents which relate this debit to the arrest application as above indicated in clause no (1) are attached with a certified translation into Arabic for all documents (Our law firm usually advises clients to send the documents by e-mail first to start the translation process urgently in order to save time for preparing the arrest application in proper time), for example (In case of the arrest application was relating to outstanding invoices for insurance installments issued by a marine insurance policy, We have to present all outstanding invoices, Insurance Policy and other documents such as mutual correspondents, Faxes, E-mails other agreements which prove this debt).
(3) A legalized power of attorney must be granted by the client (the claimant) who fills the arrest application. This power of attorney must be signed by the client then certified by the apostil then legalized by the Ministry of Foreign Affairs and by the Egyptian consulate in the client’s country. This power of attorney must be translated into Arabic by the Ministry of Justice in Egypt which takes from three to five days to be finished.
The counter security is not required under the new Egyptian Maritime Trade Law No 8/1990.
There is no difference between the maritime claim and the maritime lien in respect to arresting a ship which is subjected to same procedures. The maritime liens are recognizing by the Egyptian Maritime Trade Law No 8/1990.
The time required to arrest a ship since the moment the file arrives to our law firm is 24 hours.
The Egyptian court accepts jurisdiction over the substantive claim once the vessel has been arrested, Also all claims against the arrested vessel will be accepted in respect to the jurisdiction. The Egyptian courts are usually take a time approximately one to two years to issue it’s judgment in the legal action of the merits.
6-Claims for wrongful arrest.
The claims for wrongful arrest are allowed and organized by the Egyptian Civil Law No 131/1948 article No 163, which indicated as follows: “Every fault was caused damages to the others shall required the indemnity”
So, The wrongful arrest is protected by the Egyptian Civil Law, and if someone arrests a vessel by wrong or by false documents, The arrestor will be claimed by the ship-owners, Charters or operators to pay them all damages incurred as a result to the wrongful arrest, These damages will be determined by the court which has all rights and free to assume the value of damages including fines, Harbor dues and all other expenses caused by this wrongful arrest.
7- Privileged rights on the ship.
The privileged rights on the ship for marine debt was indicated in article No 29 and 30 of the Egyptian Maritime Trade Law No 8/1990, as the followings:
Article No 29: The following constitute exclusive privileged rights on ships:
1-Judicial expenses incurred for selling a ship and distributing its price.
2-Taxes and duties payable to the state or Public Law Person, as well as Load, Harbor, Pilotage, and Tug dues, and also guard and maintenance and other marine service costs and charges.
3-Debts consequent upon work contracts of the ship captain and sailor, and others bound under contact to work on the ship.
4-Compensations payable for rescue work and the ship’s share in joint losses.
5-Compensations payable for collision or pollution and other navigational incidents, and also for damages to harbors and dock instillations and navigational routes, as well as for physical injuries caused to passengers, the captain and sailors, and for destruction or damage of goods and luggage.
6- Debts consequent upon contracts as concluded by the ship’s captain as well as the operations carried out thereby outside the port of the ship’s registration, within the limits of his legal powers for actual needs necessitated for maintenance of the ship or pursuing its journey, whether the captain is himself the owner of the ship, or is not owner, and whether the debt is payable to him or the supply contractor , the loaners, the persons who perform repair work on the ship or other contractors, as well as the debts established on the ship furnisher ensuing from works performed by the ship’s agent pursuant to the provisions of article 140 of the present law.
Article No 30: Privileged rights shall not be subject to any formal procedure or any conditions connected with the provision of evidences.
So, The priority of these rights will be defined as indicated in abovementioned article No 29, by their ranks and grades, Also there will be no formal procedures the privileged rights may subject to.
8-Arresting bunkers.
As prior indicated in item No 1 ” Procedural requirements” and item No 3 “Recognizing liens” the bunkers claims are considered to be a marine debt as indicated in article No 60 of the Egyptian Maritime Trade Law No 8/1990, item (M) which stated that: M – Supply of materials or articles necessary for using the ship or its maintenance, whatever the source such supplies are being obtained.
So, All bunkers companies which supply vessels with Gas Oil, Fuel Oil or any other lubricants upon master request or owners request …etc. All of them have the right to arrest the supplied vessel or a sister ship which follows the same owners. The required procedures are the same as aforementioned which concentrated in the followings/
(1) Filling an arrest application (An arrest petition).
(2) Including the required documents relating this debt to the arrest application. As example (In case of the arrest application was relating to outstanding invoices for bunker supply, We have to present all invoices, Delivery receipts of bunkers and other documents such as mutual correspondents, Faxes, E-mails another agreements which prove this debit).
(3) The legalized power of attorney granted by the client (The claimant).
