SHIP ARREST:HOW TO EXECUTE A COURT ORDER TO ARREST A SHIP IN CAMEROON
The implementation of the order to arrest involves, at a high level, the judicial officer, at the request of the creditor and the competent maritime authority whose role becomes more active.
1- The mixed intervention of the judicial officer
At the request of the creditor, the precautionary arrest is carried out in the hands of the captain of the ship by a bailiff who draws up a report. In the CEMAC merchant code, a copy of the report, the content of which is specified in Article 152 (2), must be notified to the port commander, the competent maritime authority, the consul of the flag State or, failing that, to the consignee of the vessel (art. 152 Para. 1).
To play its role perfectly, the report drawn up by the bailiff must set out all the elements provided for in paragraphs 2 and 3 of article 152. Usually, it is recalled in the same report, for the garnishee debtor and any other interested person that, by article 190 of the Cameroonian Penal Code, “is punishable by imprisonment of one to five years and a fine of 50,000 to 1.
Furthermore, if the vessel arrested flies the flag of a Member State, the seizure report is recorded in the register kept by the competent maritime authority on which the vessel is registered.
This registration is required within seven days from the date of the report. This period is increased by twenty days if the place of seizure and the place where the registration register is kept is not located in the same CEMAC State. The registration of the provisional seizure of the vessel would not, however, have the effect of preventing it from being mortgaged or sold. It would therefore only be informative, thus allowing the prospective purchaser to be aware of the legal status of the vessel. No other formality is imposed and the report does not need to be notified to persons other than those indicated in article 152 paragraph 1 of the CEMAC merchant code.
However, the notification of the minutes of the precautionary seizure according to the rules of the art augurs for a very stormy continuation of the procedure because of the important role that the competent maritime authority is called upon to play.
2- Intervention of the competent maritime authority
The implementation of the precautionary seizure is above all the work of the maritime authority which is required, after having received notification of the judicial authorization decision, to issue the prohibition to sail and to ensure, with the harbor master’s office, that no departure of the vessel seized has been programmed. Similarly, the opinion of the maritime authority must first be requested by the judge in chambers, not only when he is called upon to authorize the departure of the ship for one or more voyages following a request from the debtor who has provided a sufficient deposit, but also before setting the time limit within which the vessel must return to the port of seizure if authorization to make voyages is granted.
In any case, the maritime authority is the custodian of the vessel seized and assumes an obligation of means by the provisions of article 154 of the Code. However, in the case between Mr. Matsamakis Nicolas and the company Maersk Cameroon SA, although having been the subject of a precautionary seizure following order no. 1543 of the President of the Court of first instance Douala of November 30, 2012, the vessel M/V Maersk Newport left the port of Douala without any decision or other measure ordering release having been rendered, but simply based on a fax instruction from Mr. Cameroonian Minister of Transport improperly exercising his prerogatives as a competent maritime authority. Gold,
This instruction was given in defiance of the provisions of Article 146 of the CEMAC merchant code under which the judge in chambers is the only person empowered to authorize the departure of the vessel for one or more specific voyages.
In doing so, the maritime authority exceeded its powers which, in this case, were to be limited to an advisory opinion. This attitude is all the more blameworthy since the travel authorization or temporary ship release order can only be obtained based on a sufficient guarantee provided by the debtor, which was not the case in this case. Similarly, if the interested parties fail to agree on the size and form of the guarantee, its nature and amount, which cannot exceed the value of the vessel seized, must be determined, not by the maritime authority, but by the presiding magistrate.
Article by CHUO ANGABUA JUNIOR
‘’The content of this article is intended to provide a general guide to the subject matter. We insist specialist advice be sought depending on your specific circumstance’’
TO TALK WITH A SPECIALIST
