SHIP ARREST: PROCEDURE FOR PROVISIONAL RELEASE IN CAMEROON;
Often called “provisional release”, the travel authorization is provided for in article 146 of the Merchant Navy Code as well as in article 5 of the Brussels Convention of 10 May 1952. These two texts provide, not only, that the judge can authorize the departure of the ship for one or more specific voyages, but also that an exemplary sanction should be imposed on the dishonest debtor
Authorization to leave must be requested from the judge in chambers, who has exclusive jurisdiction in the matter. It can only be granted after consulting the maritime authority. This procedure had curiously not been respected in the case of the vessel Newport belonging to the company Maersk which was subject to a precautionary seizure in Cameroonian port waters (Douala – Cameroon), and which had sailed following a fax from the Minister of Transport and on the instructions of the Commander of the Autonomous Port of Douala who had previously been appointed guardian of the vessel seized. Unfortunately, the latter could not justify a decision by the judge in chambers, the fax from the Maritime Authority ordering the departure of the seized vessel having occurred in violation of the provisions of Article 146 of the CEMAC merchant Code.
Under the influence of the Brussels Convention of 1952, the travel authorization replaces the release of the seizure which cannot be obtained when the seizure is pronounced on the basis of the maritime claims of letters (o) and (p) of Article 3 of the said convention.
Whatever the applicable regime, the applicant can only obtain the travel authorization if he provides a sufficient guarantee. Furthermore, the texts specify that no request for authorization submitted for this purpose may be interpreted as an acknowledgment of liability, nor as a waiver of any defense or any right to limit liability.
AVAILABLE SANCTION IN THE EVENT OF NON-RETURN OF THE SEIZED VESSEL
The judge in chambers, who grants the authorization to carry out voyages after an advisory opinion from the competent maritime authority, is required to set the time limit within which the ship must return to the port of seizure. He may subsequently modify this period to take account of the circumstances and, if necessary, authorize the vessel to make new voyages.
At the end of the period set by the judge and in the absence of any request for extension of the voyage from the ship-owner, if the vessel seized has not reached the port of seizure, the sum deposited as the guarantee is acquired, by operation of law to creditors, except the play of the insurance in the event of a claim covered by the policy. In the Salam 4 case, which has been the subject of much passion and commentary, the Salam company, seizing creditor, provided with a certificate of non-enrolment issued on August 17, 2007, by the chief clerk of the Douala-Bonanjo court of first instance ruling in matters of summary proceedings from hour to hour, summoned for restitution of the guarantee before the latter which ordered “the immediate and unconditional restitution” of the sum of 122,927,660 FCFA transferred by the ship-owner to the registry account of the said court, “the examination of the documents produced establishing the lapsing of the seizure”.
For case law, both national and comparative, the judge has no power of appreciation: once the default of the seizing creditor has been established, the implementation of the lapse is automatic. summoned for restitution of the guarantee before the latter which ordered “the immediate and unconditional restitution” of the sum of 122,927,660 FCFA transferred by the shipowner to the registry account of the said court, “the examination of the documents produced establishing the lapse of the seizure”.
For case law, both national and comparative, the judge has no power of appreciation: once the default of the seizing creditor has been established, the implementation of the lapse is automatic. summoned for restitution of the guarantee before the latter which ordered “the immediate and unconditional restitution” of the sum of 122,927,660 FCFA transferred by the ship-owner to the registry account of the said court, “the examination of the documents produced establishing the lapse of the seizure”.
For case law, both national and comparative, the judge has no power of appreciation: once the default of the seizing creditor has been established, the implementation of the lapse is automatic.
However, an interesting question arises: what would happen if the seized vessel returned after payment of the sum to the seizing creditor? The texts in force do not provide any satisfactory response to this concern. It is nevertheless agreed that the rule can be based on two foundations: to simplify the task of the creditor or to sanction the attitude of the debtor according to a justification provided by Emmanuel du Pontavice for whom the sanction “acts like a criminal cause”. Comparative case law has had to rule on several points relating to the guarantee. For example, it condemned a bank for having paid too quickly following an error made on the legal nature of the guarantee given: guarantee on first demand or guarantee subject to a judgment.
Article by CHUO ANGABUA JUNIOR
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