Ship arrests are frequently carried out in Morocco by way of an ‘’in rem’’ action whereby the ship is impeded from leaving the port or the berth by way of a court order and held under the custody of the harbour master until receipt of a lifting arrest order from the same court.
It is important to distinguish the ship arrest from detention which is a sanction imposed administratively (port authority) or judicially (Public prosecutor or the investigating judge) as a result of a violation of a public or regulatory law.
The ship arrest is ordered by the president of the competent court following an application filed by the creditor in line with the article 148 of the Civil Procedure Code (Summary proceeding in the absence of the debtor that last +/- 3 hours) in such a way as to not alert the adverse party who can order the vessel’s sailing before the arrest order is enforced.
Although the arrest order could be obtained before the vessel’s arrival or berthing, same is in practice enforced by the harbor Master only once the vessel comes alongside even notified to him before the vessel’s arrival/berthing.
In Morocco, the ship arrest is governed by the articles 110 of the Moroccan commercial maritime code dated 31 Marsh 1919 and the international convention relating to the Arrest of Sea-Going Ships (Brussels, May 10, 1952).
Based on the article 1 of the convention of Brussels 1952 the ship a creditor may apply for an arrest order on the ground of a ‘’Maritime Claims" arising out of one or more of the following:
(a) Damage caused by any ship either in collision or otherwise;
(b) Loss of life or personal injury caused by any ship or occurring in connexion with the operation of any ship;
(d) Agreement relating to the use or hire of any ship whether by charter party or otherwise;
(e) Agreement relating to the carriage of goods in any ship whether by charter party or otherwise;
(f) Loss of or damage to goods including baggage carried in any ship;
(g) General average;
(k) Goods or materials wherever supplied to a ship for her operation or maintenance;
(1) Construction, repair or equipment of any ship or dock charges and dues;
(m) Wages of Masters, Officers, or crew;
(n) Master's disbursements, including disbursements made by shippers, charterers or agent on behalf of a ship or her owner;
(o ) Disputes as to the title to or ownership of any ship;
(p) Disputes between co-owners of any ship as to the ownership, possession, employment, or earnings of that ship;
(q) The mortgage or hypothecation of any ship.
Based on the article 3 of the same convention a ship may be arrested irrespectively of her flag or the debtor. In fact the claimant may arrest either the particular vessel in respect of which the maritime claim arose or any other vessel which is owned by the person who was at the time when the said claim arose the owner of the particular vessel provided that all shares are owned by the same person or persons.
In the event the vessel is chartered by demise, the claimant may arrest either the vessel in respect of which the maritime claim arose or any other vessel in the ownership of the charterers by demise.
Based on the article 110 of the Moroccan commercial maritime code, the president of the competent court may subordinate the arrest order by the initiation of an action in the merits by the applicant within 30 days running from the date on which the arrest has been ordered. Furthermore, the president of the court may also subordinate the arrest order by the deposit of a sufficient security by the applicant which purpose is to limit abusive arrests.
Unfortunately the presidents of the competent courts have never subordinated the deliverance of the arrest orders by the deposit of sufficient security by the applicants while the arrest orders have rarely included a deadline to initiate a proceedings in the merits.
The lifting arrest is ordered by the president of the same court on demand of the debtor upon a security covering the arrest order amount is provided bearing in mind that only a cash deposit or a Bank Guarantee issued by a Moroccan Bank are accepted as security in Morocco while the letter of undertaking issued by the P&I Clubs is rarely accepted provided that it is replaced by a Bank Guarantee within a short agreed deadline.
In the event the security is provided in an amicable basis (LOU to be replaced by a BG) the lifting arrest could be applied either by the arrestor or the debtor subject that the demand of this later is supported by a release letter issued from the arrestor. (Summary proceeding filed in virtue of the article 148 of the civil procedure code in the absence of the arrestor that last +/- 3 hours).
In the event of conflict on the wording of the bank guarantee between the parties, the debtor may apply for the lifting arrest in line with the article 149 of the civil procedure code whereby the arrestor is convoked to summary proceedings that may last 2 or 3 weeks during which the court may consider whether the wording of the Bank guarantee is protective or not before the lifting arrest is granted to the debtor.
In the event the debtor would prefer to arrange for a cash deposit at court, this later may apply first for an order from the president of the court authorizing the cash deposit before to apply for the lifting arrest (Two summary proceeding filed in virtue of the article 148 of the civil procedure code in the absence of the arrestor that last +/- 4 hours).
Once the lifting arrest is ordered by the president of the competent court, the debtor may apply for its notification to the harbor Master for immediate enforcement purpose unless the applicant’s lawyer omit to request in his demand for the vessel to be released at any moment and even outside the working hours.