By Mr. / Usama Soliman 
Advocate before Supreme Court
International jurisdiction of the Egyptian Courts: According the Egyptian Civil and Commercial code, the Egyptian Courts will have jurisdiction over Urgent and Conservatory procedures to be executed in Egypt irrespective of the nationality of the plaintiff or the defendant and even in case the Egyptian Courts are not competent to decide upon the subjective claim.
The applicable law
Ship arrest in Egypt might be applied for under two different legal regimes:
1- The 1952 Brussels’s Convention on unification of certain rules on arrests of sea-going vessels which has been ratified in Egypt.
2- The Egyptian Maritime Commercial Law No.8/1990, Articles(59-66).
The party pursuing the arrest needs only to establish that his claim is a “Maritime Claim” as enumerated under article 1 of the said Convention, which are similar to the ones provided for under article 60 of the Egyptian Maritime Commercial Law No8/1990.
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E-mail: usoliman@solimanadvocates.com
Procedures and documents
An application must be made before the competent court requesting the arrest of the vessel, showing evidence that the debt is already due and that such debt is a “maritime debt” as outlined above, and that the debt has not yet been paid. In addition to the
above evidence, the following documents shall be required:-
a. A notarized and legalized Power of Attorney (“POA”), to be duly legalized by the nearest Egyptian Consulate.
b. All the relevant documents proving the debt together with an Arabic translation of each document by a sworn translator.
c. In case the arrest is intended not on the indebted vessel, but rather on a sister vessel, supporting evidence must be presented before the court proving that the vessel to be arrested is a sister vessel.
d. Payment of the relevant court dues. The application for arrest as supported by the relevant documents
will be then submitted before the judge, who will award or refuse granting the arrest and either way without giving any reasons for
his decision.
In normal cases, an order of arrest will be awarded or refused within maximum 3 days, and in case granted, it becomes immediately enforceable on the vessel, through court bailiff who would issue minutes of arrest and notifies the Master that his
vessel is under conservatory arrest.
Normally, in Egyptian ports, a court bailiff would also serve a notice of arrest upon the Port Authority, to the Port Police , and upon the Marine Inspection Department, thereby advising them of the arrest order granted by the court and such authorities will ensure that the vessel remains under arrest.Counter Security
Under Egyptian Law, there is no Counter security required from the plaintiff seeking for the arrest, whether the plaintiff is an Egyptian subject or a foreigner.
Arrest of a sister ship
The plaintiff may arrest a sister ship provided that the sister vessel was owned by the same indebted owner at the time when the debt arose.
The plaintiff, however, is often requested by the Egyptian Courts
to prove that both ships are owned by the same entity to obtain an
order for arrest.
If the ship was under a demise charter, the plaintiff may arrest the
same ship operated by the chatterer or any other ship owned by
the same chatterer. However, evidence to that effect must be
presented before the court at the time of the application for arrest.
Release Procedures
The lifting of an arrest placed on a vessel in one of the Egyptian
Ports may be effected, in case on e of the following measures is
undertaken :
First: Presentation of an adequate security in court’s treasury
The arrestee may present an application for lifting the
conservatory arrest placed on the vessel before the competent
judge (the president of the First Instance Court) provided
presentation of an unconditional bank letter of guarantee with no
time restrictions. The guarantee is to be issued by an Egyptian
first class bank covering the value against which the vessel is
arrested. The Judge would issue his decision after going through
the application and the letter of guarantee. In the case the letter of
guarantee fulfills the necessary requirements, the judge would
issue his decision to deposit the guarantee in the court’s treasury,
pending a decision to be made on the subject of the claim whether
amicably or judicially, and to lift the arrest placed on the vessel. Upon issuance of such a decision to lift the arrest, the arrestor
would obtain the executor form of the relevant judgment ordering
the lifting of the arrest and delivers it to the court bailiffs to
undertake the necessary formalities for the lifting of the arrest.
The court bailiff would proceed to the Marine Inspection
Department, and issue minutes of lifting the arrest. The latter
department is to notify the remaining competent authorities of the
lifting of the arrest and that there is no objection against the
sailing of the vessel.
We must explain in this respect that the Courts in Egypt do not
reckon with the P&I Clubs’ letters of undertaking as acceptable
security to lift the arrest.
Second: lifting the arrest without presentation of a bank letter
of guarantee before court’s treasury
In case the arrest placed on the vessel is an undoubtedly wrongful
arrest whether due to procedural or subjective reasons (as in case
the debt has already been paid), the arrestee may file an Urgent
Case before the Judge of Execution, thereby seeking that the
arrest placed on the vessel to be considered as null and void. The
judgment rendered by the judge in such a case is promptly
executable by the power of law, without bail and without awaiting
that a final judgment be issued by the court of appeal (in case the
arrestor files an appeal against the said judgment). In normal
circumstances, time frame for hearing such cases would be within
30 – 45 days.
Arrestor’s right to complain against the lifting of the arrest in
view of the insufficiency of the guarantee deposited
In case the arrestor considers that the guarantee deposited by the
arrestee pursuant to a court order against the lifting the arrest
placed on the vessel is inadequate security whether in view of its
quantum or its terms in case it contains unacceptable conditions,
he may file an obstruction against enforcement of the court order
allowing the lifting of the arrest. Accordingly, the court order
allowing the lifting of the arrest shall not be enforced pending a
deciding upon the obstruction action filed. However, in order that such effect to take place, the obstruction action should be filed
before the court of execution before actually executing the order
for lifting the arrest. Upon filing the obstruction action, a hearing
would be scheduled as soon as possible before the Jude of
Execution. Upon conclusion of the pleadings, the judge may issue
its judgment either suspending execution of the order for lifting
the arrest (i.e. the arrest remains enforced on the vessel) or
rejecting the obstruction action and proceeding with the execution
of the order for lifting the arrest and in such a case, the vessel
shall be able to sail.
Responsibility for wrongful arrest
As a general rule, a claimant has the right to resort to courts to
pursue his actions. However, in case it is revealed that the arrest
placed on the vessel is ill-founded as in cases the debt has already
been paid, the court may order the arrestor to pay damages which
cover the actual damage sustained by the vessel’s owners, her
chatterers, operators or managers as well as the loss of profits,
provided that both types of damage are fully supported with
document.
Responsibility for fraudulent arrest
In case it is revealed that the arrest has been placed on the vessel
by virtue of fraudulent or fabricated documents, the arrestee may
pursue criminal proceedings against the arrestor even in cases
where the arrestee, towards avoiding delaying the vessel, pays the
value of the claim since such payment will not hinder his right to
pursue criminal proceedings against the arrestor. In such cases,
the arrestee must prove that the documents used in the arrest are
fraudulent, fabricated or null.Costs of arrest
As the official language before the courts is the Arabic language,
the supporting documents proving the debt must be translated into
Arabic. As concerns the costs for filing the arrest before the court,
these do not exceed USD100.- plus expenses ranging from
USD300.- to USD500.- depending on the port where arrest is
placed against the vessel.
Lawyers Fees will depend on numerous factors including time
spent and complexity of the case. Accordingly fees differ and are
best calculated on case by case basis.
A/The court fee: to issue a writ around us $ 30 and no bailiff s fee
for serving the writ on board .
- No expenses for maintaining the ship under arrest
B/ Normally, the court will not make any order or request security
for the port charges or the crew wages. Such charges will
accumulate against the vessel and the owner will be liable for the
same during the time period of the arrest and the main action
proceedings.
The port authority and the crew may then, in priority to other
creditors under Articles 29 (b) and (c) of the Egyptian Maritime
Code,
C/ Lawyers Fees will depend on numerous factors for example
time spent, complexity of the case documents to perused and so
on. Estimates can usually be given to lawyers for specific cases.
P.S: This article provides only a general overview and must not be relied
upon as constituting advice in any specific case. Advice should always be
sought before taking any steps in actual proceedings.
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This article provides for a general overview only and must not be relied upon as constituting
advice in any specific case. Advice should always be sought before taking steps in
proceedings- For Further information pls. Contact Mr. U. Soliman
