3A ABIDJAN
legal.department@3afrance-expertise.com
www.3afrance-expertise.com
Avenue 2, Rue 9, 2eme etage, 1ere porte D
05 BP 1586 Abidjan 05 – Treichville.
Tel. +225 2124 0572
Fax. +225 2124 8962
1. Please give an overview of ship arrest practice in your country:
The port of Abidjan is the main focus of maritime transportation. The port of San Pedro is mainly specialized in the export of wood even if it tends to diversify its activities (especially by the establishment of a container terminal assigned to MSC).
Therefore, 99% of the arrests of ships’ procedures are initiated at Abidjan so that the orders of arrests are delivered by the President of the Court of First Instance of this city.
Usually, it is quite easy to arrest a vessel at Abidjan; however, the President of the Court requires that all documents submitted to him must be translated into French, which is the official language in Ivory Coast. The translation requirement could sometimes be a disadvantage because it takes time and has to be realised by a listed translator of the Court of Appeal.
Moreover, the Courts being closed on Saturdays and Sundays, the authorizations to arrest a ship must be obtained no later than on Fridays. However, the arrest order is implemented via the services of the port Harbour Master who needs the arrest orders to be formally approved by the Legal Department of the port Harbour which closes at 18:00 LT on Fridays.
Furthermore, the local regulation requires that the arrest order states several detailed information (regarding for instance the domiciliation of the creditor, the legal form of both the debtor and creditor); without those detailed information, an arrest order could easily be cancelled upon request. The said requirement has two (2) important consequences:
1- the creditor must provide complete information on himself, on the vessel and on the debtor;
2- 99% of the releases of ships are the result from the cancellation of arrest orders. In this case however, the Court’s decision to issue the arrest order is not cancelled and the claimants can still ask the Court to issue a new arrest order and therefore oblige the Shipowners to negotiate.
To conclude, detaining a vessel is quite easy when the creditors’ claim file is complete and transmitted rapidly to the Court.
2. Which International Convention applies to arrest of ships in your country?
Ivory Coast did not ratify the Brussels International Convention dated 10th May 1952 but accepted to apply it after having accessed independence.
3. Is there any other way to arrest a ship in your jurisdiction?
The answer is yes, but depends on the purpose of the procedure of arrest:
3.1 The provisional arrest of a ship
• The article 8 §2 of The Brussels Convention concerns the arrests of ships flying a State flag which is not a contracting party of the International Convention. The creditor has therefore the choice to base his demand either on one of the maritime debts of the convention or on one of the debt foreseen by the local Laws.
• The article 8 §4 of The Brussels Convention provides that local Laws applies when the arrested ship flies Ivory Coast Flag and when the creditor’s usual residence or principal place of business is in Ivory Coast.
3.2 The arrest of a ship with the view to sale it
In such procedure the creditor bases on Ivory Coast Laws. The creditor would be able to arrest the vessel after the notification of a commandment of an enforceable title noticing a liquid and due debt.
4. Are these alternatives e.g. saisie conservatoire or freezing order?
These alternatives are “saisie conservatoire” which means “arrest” and not freezing orders.
However, the Government and/or the Port Authority are able to retain a vessel basing on the Ivory Coast Public Law.
5. For which types of claims can you arrest a ship?
5.1 The provisional arrest of a ship
In such procedure, when the Brussels Convention applies, the arrest must be justified by a maritime claim as defined by the article 1 § 1 of the said Convention. Usually, the Courts issue easily an arrest order when the claim appears justified.
When the Ivory Coast Law applies, especially the Uniform Act of Ohada, the claim is not necessary a maritime claim and the claim must only appear justified in its principle.
5.2 The arrest of a ship with the view to sale it
In such a procedure, the claim must be based on a liquid and due debt.
6. Can you arrest a ship irrespectively of her flag?
The answer is yes because, as per the Article 8 § 2 of the Brussels Convention “A ship flying the flag of a non-Contracting State may be arrested in the jurisdiction of any Contracting State in respect of any of the maritime claims enumerated in Article 1 or of any other claim for which the law of the Contracting State permits arrest”.
7. Can you arrest a ship irrespectively of the debtor?
• In principle, a vessel owned by a State cannot be arrested. However, this principle is limited to the vessels which have a governmental activity at the time of the birth of the debt.
Consequently, the vessels owned by a State can be arrested when such vessels have a commercial activity at the time of the birth of the debt.
However, Ivory Coast vessels can in no case be arrested in Ivory Coast.
• Under Ivory Coast Law, the seizure of property is limited to the property owned by the debtor. Consequently, when Ivory Coast Law applies for the arrest of ships, the ship must be the property of the debtor except when the creditor has a maritime lien.
8. What is the position as regards sister ships and ships in associated ownership?
There are only a few decisions with regards to this question in Ivory Coast.
The article 3 §2 of the Brussels Convention provides that “Ships shall be deemed to be in the same ownership when all the shares therein are owned by the same person or persons”.
Sometimes, the Judges had accepted to ignore the autonomy of each property and the legal personality of societies when evidence showed that there were a link between societies and therefore an organised fraud in order to be insolvent.
9. What is the position as regards Bareboat and Time-Chartered vessels?
The article 3 §4 of the Brussels Convention provides that “When in the case of a charter by demise of a ship the charterer and not the registered owner is liable in respect of a maritime claim relating to that ship, the claimant may arrest such ship or any other ship in the ownership of the charterer by demise, subject to the provisions of this Convention, but no other ship in the ownership of the registered owner shall be liable to arrest in respect of such maritime claims. The provisions of this paragraph shall apply to any case in which a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship”.
The international Convention points out the cause of the debt, i.e. a maritime claim relating to the ship.
When the Ivory Coast Laws apply, a creditor may arrest a ship which is not the property of the debtor when the creditor has a maritime lien and/or a mortgage.
10. Do your Courts require counter-security in order to arrest a ship?
As per the article 4 of the Code of Civil Procedure, the defendant (or the debtor) may ask to obtain a guarantee to cover the payment of the costs, interests and damages for which may be condemned the plaintiff (or the creditor). The demand for guarantee is conditioned to the existence of an adversarial debate.
The procedure of arrest is not subject to any adversarial debate. Consequently, the defendant (or the debtor) cannot ask for a counter guarantee.
11. Is there any difference in respect to arresting a ship for a maritime claim and a maritime lien?
A maritime Lien exists only because a maritime claim exists. It is therefore impossible to arrest a ship basing only on the existence of a maritime Lien.
A maritime Lien gives a right of mortgage on a property even if property changes hands and a priority right to be paid before other creditors.
12. Does your country recognise maritime liens? Under which International Convention, if any?
Ivory Coast recognizes Maritime Liens and applies the International Convention on Maritime mortgages and liens dated 10th April 1926.
13. What lapse of time is required in order to arrest a ship since the moment the file arrives to your law firm?
If the file is complete and the documents translated in French by a listed translator of a Court of Appeal, the arrest could be obtained within the same day.
14. Do you need to provide a POA, or any other documents of the claim to the Court?
A special power of attorney would be required to recover the amount of money from the debtor who has been condemned by the Court.
15. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed?
The Court does not require originals except when a defendant alleges that a document is a forgery.
Consequently, all documents can be filled electronically; there is not any requirement of notarisation or apostille of the documents although it is better to legalise a special power of attorney.
16. Will your Courts accept jurisdiction over the substantive claim once a vessel has been arrested?
In principle, once the vessel is arrested in Ivory Coast, the Courts accept jurisdiction.
17. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?
The local Regulation, and not the Courts, imposes to the claimants to take legal action on the merits within one (1) month after the issuance of an arrest order. It the claimant does not respect this regulation the arrest becomes null and void.
Actually, the Port Harbour Master would refuse to enable a vessel to sail without having received a withdrawal (or release order) by the Court.
18. Do the Courts of your country acknowledge wrongful arrest?
Ivory Coast recognizes wrongful arrest if evidence show that an arrest is abusive, especially when the debtor provides proofs showing that the debt has been paid.
19. Do the Courts of your country acknowledge the piercing and lifting of the corporate veil?
As explained at point 8, it is possible to obtain such condemnation when the plaintiff (or creditor) shows strong evidence. Courts’ decisions are rare, but existent.
20. Is it possible to have a ship sold pendente lite; if so how long does it take?
It is not possible to sell a ship pendente lite.
A ship can be sold at the end of the procedure of arrest with the view to sell it; the creditor is supposed to have obtained an enforcement title from the Court. The procedure for sailing the vessel takes approximately two (2) months after the notification of a commandment to pay before execution.
