Guide to ship arrest in Tunisia

Guide to ship arrest in Tunisia

Ship arrest in Tunisia is an excellent way to obtain security for a claim and potentially prepare for a judicial sale of the ship, should that become necessary. A ship arrest in Tunisia can be the fastest, cheapest and most effective measure in obtaining voluntary payment of an outstanding claim against the ship or the owner (as the case may be), provided that the measure of arrest – in a legal and commercial sense – is used correctly. We are specialist in ship arrests in all Tunisian ports. Please feel free to review our Guide to ship arrest in Tunisia.

Ship arrest in Tunisia is an excellent way to obtain security for a claim and potentially prepare for a judicial sale of the ship, should that become necessary. Ships are highly valuable and mobile assets, often operating substantial distances from the offices of the ship owners. Accordingly, separate legal procedures for dealing with the unique issues raised by ship operations have been developed over many centuries by maritime nations. The legal remedies have proved so useful that many are still in use today.

Not only can you sue the ship but you can also have it arrested and held under arrest until your claim is settled. If the claim cannot be settled by agreement, then you can direct the Court to sell the ship, with the proceeds being used to settle claims lodged against it.

The ability to claim against the ship rather than the owner provides many significant advantages to a claimant, particularly if the owner of the ship is a foreign based person or corporation and if the ship is the only asset belonging to the owner. Even if the owner is locally based, the cost and inconvenience of having a major income earning asset arrested is such that disputes are usually resolved very quickly.

A ship arrest in Tunisia may be a suitable remedy for a variety of creditors, such as owners that need to repossess the ship under the charter party, bunker suppliers that have not been paid, a bank that has terminated the loan facility and wishes to draw on its mortgage or crew members that have outstanding wages. Ship arrest in Tunisia is a relatively easy, inexpensive and quick solution.

Many different and complicated legal questions may arise when arresting or attempting to arrest a ship in Tunisia. Please do not hesitate to contact us to ask for the main ship arrest requirements under Tunisian law.

What are the options available to a party seeking to obtain security for a maritime claim against a vessel owner and the applicable procedure in Tunisia ?

The best option available to a party seeking to obtain security for a maritime claim against a shipowner is, certainly the arrest of the vessel. Ship arrest is a crucial weapon in the armoury of disputants seeking to protect their commercial interests in maritime disputes. Certainly, vessel arrest is an excellent way to obtain security for a claim and potentially prepare for a judicial sale of the vessel, should that become necessary. We can help you to protect your commercial interests and to proceed to ship arrest in Tunisia.

Which international convention regarding the arrest of ships is in force in Tunisia ?

Tunisia is neither a party to the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships signed in Brussels on 10 May 1952, nor to the International Convention on the Arrest of Ships signed in Geneva on 12 March 1999. However, Tunisia attended the Diplomatic Conference on Arrest of Ships of 19 July 1999.

In respect of what claims can a vessel be arrested ? In what circumstances may associated ships be arrested ?

The arrest of vessels in Tunisia is governed by the Provisions 100 to 106 of the Maritime Trade Code. Generally, to arrest a vessel in the Tunisian jurisdiction, the claim must have a maritime character or be related to the vessel to be arrested.

Under Tunisian maritime law and according to article 100 of the Maritime Trade Code, a ship may be arrested pursuant to an ex parte request for an order of conservatory arrest for any claim, as long as the claim appears to be well founded in theory.

Under article 100 of the Maritime Trade Code, a vessel can be arrested in respect of a maritime claim, as follows:
[…] maritime claims, pretentions with a right or a claim having one of the following causes:
  • Damage caused by any ship either in collision or otherwise;
  • Loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship;
  • Assistance and salvage;
  • Agreement relating to the use or hire of any ship whether by a charter party or otherwise;
  • Agreement relating to the carriage of goods in any ship whether by a charter party or otherwise;
  • Loss of or damage to goods, including baggage carried in any ship;
  • General average;
  • Towage;
  • Pilotage;
  • Goods or materials wherever supplied to a ship for her operation or maintenance;
  • Construction, repair or equipment of any ship or dock charges and dues;
  • wages of masters, officers or crew;
  • Master’s disbursements, including disbursements made by shippers, charterers or agents on behalf of a ship or her owner;
  • Disputes as to the ownership or co-ownership of any ship;
  • Disputes as to the exploitation or earnings of that ship;
  • The mortgage or hypothecation of any ship and, generally, any claim that has its source in one of the causes that allow the application of limitation of responsibility of the owners or ship-owners.

Arrest of associated ships in Tunisia | Sister-ship arrests in Tunisia

Regarding the arrest of associated ships or sister-ship arrest, pursuant to article 103 of the Maritime Trade Code, in the case of a charter vessel whose nautical management has been replaced and where the charterer alone is responsible for a maritime claim relating to that ship, the claimant may arrest such ship or any other belonging to the charterer. No other ship belonging to the shipowner can be arrested under such a claim.

These provisions shall also apply to all cases where a person other than the owner holds a maritime claim.

What are the procedures to arrest a ship in Tunisia ?

There isn’t any requested guaranty to be filed by the creditor. Otherwise, the arresting party does not have to provide security. The debtor can obtain the release of the arrest if it can provide a satisfactory guarantee to the arresting party.

The competent authority to order the arrest is the President of the Court (First instance) of the ship’s port of call.

The procedure starts with submitting an arrest request to the President of the Court in whose jurisdiction the ship is located or is expected to arrive shortly.

This request can be filed any time of day, even during out-of-office hours or in the weekend. If it can be made clear to the judge that time is of the essence, the arrest can therefore be obtained immediately.

The request should contain the full style of the claimant and debtor, the grounds of the arrest and the amount of claim. The arrest order will be then be forwarded to a bailiff for enforcement.

In practice, an arrest means that the port authorities are informed and will not allow the ship to leave the port.

When granting the arrest, the court determines a time limit within which the creditor must file his claim in main proceedings (action on the merits) before the Court.

The documents needed to arrest a ship are those evidencing the claim (such as contracts, invoices, purchase orders/delivery duly signed by the Master, letters, etc.). Most Presidents of the Tribunals will request a translation of these French documents. However, if supporting documents are in the English language an official translation is requested.

Who is responsible for the maintenance of the vessel while under arrest ?

The bailiff in charge of the arrest of a ship will designate a person respon­sible for the surveillance of the vessel while under arrest. However, the shipowner and the OMMP are also responsible for the maintenance of the arrested vessel (article 21 of the Tunisian Maritime Trade Code).

Must the arresting party pursue the claim on its merits in the courts of your country or is it possible to arrest simply to obtain security and then pursue proceedings on the merits elsewhere ?

Pursuant to article 104 of the Tunisian Maritime Trade Code, the arresting party must pursue the claim on its merits in the Tunisian courts that have juris­diction to decide within 30 days of the arrest order. Otherwise, the arrest will be considered null and void.

What is the test for wrongful arrest ?

Wrongful arrest would lie in the abuse of the right to arrest a vessel; absence of legitimacy, malice or the inappropriateness of the measure may constitute an abuse. In the event of such an abuse, the judge may award damages to the arrestee.

How is the amount of security the court will order the arrested party to provide calculated and can this amount be reviewed subsequently ? In what form must the security be provided ?

In the event that the shipowner or charterer suffers a loss due to the arrest of the ship, such parties may apply for an emergency proceeding to request the release of the ship from arrest. Under the terms of article 105 of the Maritime Trade Code, at the request of the shipowner on a subsidiary basis, the judge may authorise the release of the ship subject to the issu­ance of a guarantee or security.

Pursuant to article 105 of the Tunisian Maritime Trade Code, the judge will decide as to the nature, extent and conditions of the guarantee if the par­ties do not agree. The guarantee or security will be deposited at the Fund for Deposits and Consignments. However, at the request of one of the par­ties it may also be deposited in the hands of a third party appointed for that purpose (in practice, often a bank). The judge who consents to such a request will state in his or her decision the conditions of such deposit. In the event that the third party refuses to accept such deposit, the sum will be deposited, without any new decision in this respect, at the Fund for Deposits and Consignments. Where the value of the guarantee cannot be determined immediately, the judge will invite the parties to appear before him with any evidence at a given date.

In relation to maritime claims, what form of security is acceptable; for example, bank guarantee, P&I letter of undertaking.

It is up to the parties to determine the preferred/acceptable form of security. In practice, a bank guarantee, or a P&I letter of undertaking, are both acceptable.

However, if the parties disagree the form of security, the shipowner can provide only a bond or sufficient security (generally a bank guarantee) to ask the Court for the release of the vessel (Article 105 of the Tunisian Maritime Trade Code).