Henry, Samuelson & Co.
McMiriam Tower (top floor), 76 Rue Bruix,
Derriere College de la Salle, Akwa
P.O. Box 15805 AkwaDouala-Cameroon
Tel: (237) 3343-87-63
Fax: (237) 3343-87-91
Cell phone number: (237) 99 93 34 47
The law governing ship arrest as an executory measure in Cameroon is the CEMAC Merchant Shipping Community code of 03/08/2001 (the code). The code was inspired chiefly by the International Convention of 1999 on the Arrest of Ships and the Brussels Convention of 1952 on the Unification of Certain Rules on the Arrest of Ships.
This code is a regional legislation applicable to the CEMAC (Communauté Economique et Monétaire de l’Afrique Centrale) sub-region comprising Cameroon, Central African Republic (CAR), Congo, Gabon, Equatorial Guinea and Tchad, with executive secretariat in Bangui, capital of CAR.
The OHADA Uniform Act on the simplified recovery procedure and means of enforcement of 10/04/1998 (the Uniform Act) also applicable in all the CEMAC member states above governs the procedure for the forceful sale of ships.
N.B: The applicable law is actually the CEMAC Merchant Shipping Community Code which only makes reference to the OHADA Uniform Act.
There are three sea ports (Douala, Kribi, Limbe) and one river port (Garoua) in Cameroon.
The competent courts in matters of ship arrest as an executory measure here is the “Tribunal de Grande Instance” (in Douala-Bonanjo, Kribi and Garoua) and the High Court (in Buea). In spite of Cameroon’s relatively short coastline, there are one or two fishing ports such as Tiko and Idenau. A water vessel to be arrested/sold in these ports should fall within the jurisdictional competence of the High Court of Fako Division holden at Buea according to the theory of forum.
Ship arrest as an executory measure is the restraining of a ship by anybody holding an executory title in view of having the ship sold. Such executory titles would include:
– Court decision;
o Decree absolute;
o Court orders/rulings which do not obey the nisi-absolute rule;
– Foreign judgements (final) and arbitral sentences (final) with an exequatur obtained in the CEMAC member state wherein the ship is to be arrested;
– A consent judgment (minutes of conciliation signed by the parties and the judge);
– Notarial acts with the executory formulae;
– Decisions to which the municipal law of each CEMAC member state attaches the effect of a court decision.
The arrest proper
With any of these executory titles a bailiff serves a formal notice to pay within 30 days on the debtor failing which the (same) bailiff practices the arrest and now the creditor has 20 days to file his conditions and articles of arrest/sale (cahiers de charge) at the competent high court registry though his solicitor.
Upon such arrest a report is made and a keeper designated under the same conditions as in ship arrest as a conservatory measure. Such report must contain the following details:
– Name, profession and residence of the creditor upon whose instruction the bailiff is acting; here the code assumes (not all too correctly though) the creditor would always be a physical person, as one only talks of “profession” with reference to a physical persons.
– Court decision authorizing the arrest;
– Amount of claim justifying the arrest;
– Date of the formal notice to pay (which preceded the arrest);
– Forum election done by the creditor in the competent jurisdiction, and in the place where the ship is berthed;
– Name and address of owner of the ship;
– Name, category, tonnage and nationality of the ship.
The report must equally have a statement and description of the launch, rigging and gear of the ship as well as its supplies and store rooms.
If the ship is flying the flag of a CEMAC member state, the arrest report is registered in the register kept by the competent maritime authority and in which the ship is immatriculated. This registration is required within seven days of the date of the arrest. But this deadline is increased to twenty days if the place of arrest and the place where the register of immatriculation is kept are not situated in the same CEMAC member state.
The creditor shall within three days notify a copy of the report to the ship owner and at the same time summon him to the high court of the place of arrest for their statements and remarks (if any) to be heard. If the owner is not resident in the jurisdiction of the court the notification and summons are served on the captain of the ship or the representative of the owner or the captain, in that order.
The deadline of three days is increased by 30 days if the person to be served is without the CEMAC territory. On the contrary if the person to be served is a foreigner resident without the CEMAC territory and is not represented, the summons and notification shall be served according to the procedure of common law i.e. deadline of distance would become applicable (90 days).
The report of arrest is recorded in the register of maritime mortgages kept by the competent administrative authority. This recordal is required within 7 days with effect from the date of the arrest report, which deadline is increased by 20 days if the place of arrest and the place where the register is kept is not situated at the same port.
The conservator of maritime mortgages issues a status of the recordal of the mortgage charge to the creditor. Within 7 days of the delivery of this status of mortgage charge, the arrest is notified to other (registered) creditors recorded in the domicile elected in the records. This deadline is increased by 20 days if the elected domicile is not situated in the jurisdiction of the competent court that issued the order to arrest.
The notification to other (registered) creditors indicate the date they have to enter appearance in court; this date must be without 30 days with effect from the date of notification in the case where the elected domicile is not situated in the jurisdiction of the court.
The application for ship arrest as an executory measure is filed before the President of the competent High Court according to the procedure in the Uniform Act for attachment of real property. If there are more than one ships (anchored in different jurisdictions) to be arrested, the application is filed in only one of the competent jurisdictions.
According to the Uniform Act, the arrest/sale procedure has eight steps to be followed strictly.
1) Formal Notice to pay served by bailiff on the debtor. Thereafter the creditor has 50 days to file his application for arrest/sale if payment is not delivered.
2) Preparation and filing of the articles and conditions of arrest/sale (cahiers de charge) at the competent high court registry.
The documents/details to be included in the articles and conditions of arrest/sale, under pain of nullity, are as follows:
– Title of the act “articles and conditions of arrest/sale”;
– The executory title justifying the arrest, the formal notice to pay/proof of service thereof;
– Indication as to the jurisdiction elected by the creditor or the Notary Public conventionally chosen by the debtor and creditor before whom the adjudication would take place;
– Indication as to the place where the sale would take place;
– The name, profession, nationality, date of birth and residence of the creditor;
– The name, title and address of the solicitor of the creditor;
– Designation of the ship under arrest as described in the formal notice to pay or a report of description of the ship by a bailiff;
– The conditions of sale and notably the rights and duties of the seller(s) and adjudicator(s)/buyer(s);
– Details as to the cost of the arrest/sale procedure and any other useful details;
– The upset price fixed by the creditor which shall not be lower than ¼ of the market value of the ship.
To the articles and conditions of arrest/sale must also be annexed all the real charges encumbering the ship (if any).
3) Formal notice to the debtor and other (registered) creditors, requiring them to go to the court registry and get copies of the articles and conditions of arrest/sale.
This formal notice shall contain the following details, under pain of nullity.
– The date and hour of the hearing in which the court would statuate on statements and remarks made by the debtor and other (registered) creditors (if any). This hearing date must be after 30 days of the last formal notice.
– The day and hour for the adjudication. This day must be within the 30th and 60th day after the hearing date (above).
– These statements and remarks mentioned above must be received at the court registry, under pain that it would lapse, up to 5 days before the hearing date (above).
4) The hearing
The right to fair hearing must be observed at the hearing. In case of dispute as to the upset price the contesting party has the right to apply to the court to appoint an expert to assess the value of the ship (at his cost). This hearing in principle should know no adjournments. However an adjournment would be entertained under very grave circumstances: modification of the upset price for instance.
5) Formalities before sale/adjudication
Between 15 and 30 days before adjudication, an extract of the articles and conditions of arrest/sale (signed by the solicitor of the creditor) must be published in an official newspaper and by posting at the door of the residence of the debtor, the competent jurisdiction or the notary public conventionally agreed upon as well as in official places of the municipality where the ship is berthed.
This publication must contain the following details:
– The name, profession, residence of the parties and their solicitors;
– Designation of the ship under arrest;
– The upset price;
– Indication as to the day, place and hour of adjudication;
– The competent jurisdiction or the notary public to do the sale;
– A bailiff’s report justifying the legal publication and also publication in public places as indicated above.
6) Sale proper
The conditions of sale of the ship is fixed by the competent court according to the procedure of common law applicable to the forceful sale of realties.
The notice of sale is posted on the most apparent/visible part of the ship, on the main door of the court before which the sale would take place, in public place or in the wharf of the port where the ship is berthed, at the chamber of commerce, at the customs office and at the headquarters of the maritime district of the place.
The sale is by auction. The sale is done either in a public place or at the wharf of the port where the ship is berthed, or at the chamber of commerce or at the customs office or at the department of maritime affairs.
7) Higher bid
Article 287 of the Uniform Act has provided for higher bid in the case of sale of a ship within 10 days of the sale provided the difference is a minimum of 10% of the principal sale price. Beyond the 10th day the right to higher bid would lapse. You cannot withdraw a higher bid once offered otherwise you would be liable in damages. Higher bid is offered at the registry of the court which organized the sale.
8) Adjudication proper
As from the moment of adjudication, a copy of the judgment or report of the Notary Public, as the case may be, is issued to the adjudicator after payment of the cost of procedure, the price of adjudication and after accomplishment of the conditions of the articles and conditions of arrest/sale which must be executed within 20 days of adjudication.
Article 298 of the Uniform Act has anticipated certain incidents which may (or may not) occur in the course of the procedure of ship arrest/sale.
First, there may be a request to divert from execution, some of the attached property. That is, a third party may suddenly appear and tell the court that the ship does not belong to the debtor. This permits such third parties who have claim of ownership over the ship, and who think they are not bound by the debt, to apply to the court to release their ship.
Second, some adventurer might make an irresponsible bid that cannot be made good. This is where the adjudicator does not honour his obligations under the auction and a new auction has to be organized.
Third, any interested party might make an application for nullity of the arrest (for one reason or another) which must be filed at least 5 days before the date of hearing.
Once there are no incidents, payment of the sale price plus ancillary costs or deposit of the sale price only at the court registry would be made and this ends the procedure.
At this juncture there would be distribution of sale price if there are many creditors.