Wrongful arrest of ships in Ivory Coast : do not delay in initiating court proceedings for lifting of an arrest.
by JC IMPOUTOU - June 2005
In September 2004, the vessel " V....." was arrested off Abidjan. The arrest was made by one local surveying company. The source of the claim was a pre-purchase survey carried out three months before at the request and on behalf of a Nigerian shipping company. The amount of two invoices presented by the surveying company was contested by the principal who required a rebate. Instead of seeking an agreement with the principal, the surveying company made an application to court to have authority to arrest the ship. They curiously suggested to the Court that they had two unpaid invoices concerning supplies to the m/v "V....".

On 07.09.04, they served an arrest order on the ship issued by the President of the Tribunal of First Instance of Abidjan. The Abidjan port legal department refused to register this arrest order on the basis that the ship was out of the Harbour Master's controlled area. The claimant’s bailiff was however able to obtain the assistance of the police to go out to the vessel at sea. He confiscated the ship's certificates as well as the Master's passport.

The following day, our assistance was requested by owner’s P&I Club to seek lifting of the arrest. From our past experience, we knew that the claimant’s bailiff was a "crook". We immediately recommended the owners to institute a court action. Owners naively believed that it would have been enough to provide the arresting party with evidence that their principal did not purchase the ship and that other people's property had been seized. The ship's registry certificate was produced. The Nigerian company was asked and agreed to confirm by fax that they had not bought the ship further to the pre-purchase survey report but that they were indeed the only debtor of the concerned claim.

After several days of unfruitful talks, owners finally agreed to petition the court for lifting of the arrest on 17.09.04. Due to the court vacation, the emergency hearing was scheduled for 27.09.04. At the end of this hearing, the court could not take a decision. The matter was adjourned until 10.08.04. That day, the court ordered immediate lifting of the arrest and added a daily penalty of Euro 3,000 for delay in serving the release.

The claimants approached the ship’s agents with a view to returning the ship's certificates and the Master's passport. The agents refused to take these documents and suggested that the claimants/arresting party return these documents to the ship themselves. That was done only on 13.10.04.

Owners instructed us to explore the possibility of claiming payment of the daily penalty for 3 days of delay. Investigations through the local jurisprudence revealed that although the court stated that the daily penalty applied as from the date at which the decision was ruled, this penalty applies only as from the date at which the court decision ordering lifting of the arrest is legally notified to claimants. In this matter, the claimants themselves lifted the arrest before being notified with an authentic copy of the court decision by owners. Since the drafting process of court decisions takes several days, owners could not reasonably obtain an authentic copy of the court decision for some two or three days.

Owners also had the intention of presenting a counter-claim for wrongful arrest. We assessed chances of success of this counter-claim and found them very slim. Indeed, the local courts admit an arrest as wrongful only when it has been made without a court authorisation. In the present matter, the arresting party was covered by the court order of arrest even if erroneous arguments had been submitted to court in support of their application for an arrest order. It was the court's burden to ensure/investigate that the arguments raised in support of the demand for arrest were serious or in line with documents submitted for its attention/examination.

In conclusion, it was clearly in owners' interest to take immediate court action to seek lifting of the arrest, as soon as it transpired from the supporting documents provided to the Court by the claimant that these were highly questionable and had misled the Court into authorising a wrongful arrest.

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