Ships arrest in Algeria, by Dr. D. Ben Abderrahmane
Ben Abderrahmane & Partners
16, Chemin Parmentier
Hydra 16035 Algiers Algeria
Tel.: + 213 21 69 44 53 / + 33 1 42 89 22 47
Fax. + 213 21 69 44 42 / + 33 1 42 89 18 04
email: ba@benlawyers.com
1 Please give an overview of ship arrest practice in your country
Algeria has a long tradition in maritime law, including maritime arrests. Algerian law is generally not restrictive in allowing conservatory and provisional measures. Algeria, and most specifically the ports of Algiers, Oran, Annaba as well as the oil and gas terminal of Arzew and Skikkda has a favourable reputation for being a convenient place to arrest ships.
2. Which International Convention applies to arrest of ships in your country?
Algeria is since August 1964 member of the Brussels Arrest convention of 1952. Some general principles of the convention have been incorporated in the Algerian Maritime Code (hereafter called CMA).
3. Is there any other way to arrest a ship in your jurisdiction?
In practice for the Algerian jurisprudence the CMA and the provisions of the Code of Civil procedure (hereafter called CPC) remain the major source of law.
4. For which types of claims can you arrest a ship?
Algerian law provides an open list, which may include claims of maritime nature like insurance premiums. A request to obtain authorisation to arrest a se-going vessel has to be presented before the President of the court which has jurisdiction for the port of call. It is a unilateral request, and the President immediately grants or rejects authorisation. In theory, according to the CPC, the request can be submitted at any time, even out of court hours and during the weekend (in Algeria Thursday and Friday). In practice, the request can be submitted only from Saturday to Wednesday.
5. Can you arrest a ship irrespectively of her flag?
In theory there are two regimes:
(i) A sea-going ship, flying the flag of a contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in littera a to q of Article 1.1 of the Brussels convention of 1952.
(ii) A sea-going ship, flying the flag of a non contracting State can be arrested in an Algerian port as a security for a maritime claim, as specified in Article 151 CMA. Pursuant to this provision maritime claim means any claims arising out of a contract or an event in connection with the operation or the management of the ship, any loss or damage caused by the ship due to its exploitation.
In practice, Algerian courts tend to apply the provision of Article 151 CMA without differentiation.
6. Can you arrest a ship irrespectively of the debtor?
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.
7. What is the position as regards sister ships and ships in associated ownership?
Pursuant to Article 154 CMA, it is possible to arrest another ship, which is owned by the person who, at the time when the maritime claim arose, was the owner of the particular ship in respect of which the maritime claim arose.
However, to the difference of the jurisprudence of several European States, Algerian courts do not authorise the arrest of a ship owned by another company than the debtor of the claim. This even if the claimant has sufficiently established that the separate corporate personality is only a fiction that does not correspond to reality.
8. 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.
9. Do your Courts require counter-security in order to arrest a ship?
Algerian 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.
10. Do you need to provide a POA, or any other documents of the claim to the Court?
No power of Attorney is requested from the attorney representing the claimant.
The documents needed to arrest a ship are those evidencing the claim (such as contracts, bills of lading, letters requesting payments, protest or interim report of a surveyor, etc. Since the President will control very accurately the existence of a maritime claim, it is highly recommended to have as much documentary as possible to prove the alleged maritime claim.
11. What original documents are required, what documents can be filed electronically, what documents require notarisation and/or apostille, and when are they needed?
Even if the president is conversant in English, he will mandatorily request the translation of theses documents in Arabic. If the translation is made outside Algeria the signature of the translator has to be authenticated by a public authority of his country and by the Algerian embassy territorially competent.
12. Which period of time will be granted by the Courts in order for the claimants to take legal action on the merits?
Pursuant to Article 350 CPC, the claimant must institutea legal proceeding on the merits before the competent court, within 15 days from the day the Ordinance authorising the is issued, otherwise the arrest will be held null and void.
In this respect the Forum Arresti concept is applicable in Algeria. Article 8 CPC stipulates that the court of the place of arrest is competent to authorise arrests and other subsequent proceedings. Therefore, an Algerian court may hold itself automatically competent to try the case on its merits by the sole fact that the ship was arrested within its jurisdiction.
13. Do the Courts of your country acknowledge wrongful arrest?
The arrestor bears the risk of arresting the ship. If he loses the contradictory summary proceedings or the case on the merits, his arrest may be considered wrongful and he could have to indemnify all costs and damages caused to the ship, as a result of such wrongful arrest.
However in practice, Algerian Judges are reluctant to countenance a claim for compensatory damages for wrongful arrest unless the bad faith or malice of the arrestor is established.
