Ship arrest

International conventions

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

The International Convention Relating to the Arrest of Sea-Going Ships 1952 (Brussels Convention) applies in Angola.

Claims

In respect of what claims can a vessel be arrested? In what circumstances may associated ships be arrested? Can a bareboat (demise) chartered vessel be arrested for a claim against the bareboat charterer? Can a time-chartered vessel be arrested for a claim against a time-charterer?

Under the Brussels Convention, any person alleging to have a maritime claim is entitled to seek the arrest of a vessel. A ‘maritime claim’ is deemed to be a claim that arises out of one or more of the situations foreseen in article 1.1 of the 1952 Convention.

A claimant may seek the arrest of either the vessel in respect of which the maritime claim arose, or any other associated vessel as long as both vessels are owned by the same person(s). Associated ships may not be arrested in situations foreseen in article 1.1, (o), (p) or (q) of the Brussels Convention.

Pursuant to paragraph (4) of article 3 of the Brussels Convention, in the case of a claim against a bareboat charterer, the claimant may seek the arrest of the bareboat (demise) chartered vessel or any other vessel in the ownership of the bareboat charterer, as the charterer and not the registered owner is liable in respect of such maritime claim relating to that vessel. However, no other vessel of the ownership of the registered owner may be arrested in respect of such maritime claim. The above-mentioned legal regime also applies to any case where a person other than the registered owner of a ship is liable in respect of a maritime claim relating to that ship.

Maritime liens

Does your country recognise the concept of maritime liens and, if so, what claims give rise to maritime liens?

Yes; it is understood that the 1926 International Convention for the Unification of Certain Rules Relating to Maritime Liens and Mortgages (the 1926 Convention) is applicable in Angola. To that extent, in addition to those listed in the 1926 Convention, article 578 of the Commercial Code specifies the following categories of claims affording a maritime lien:

  1. court costs incurred in the common interest of the creditors;
  2. remuneration for salvage;
  3. pilotage and towage expenses;
  4. tonnage, lights, anchorage, public health and other harbour dues;
  5. expenses made in connection with a vessel’s maintenance and storage of her appurtenances;
  6. master and crew wages;
  7. costs incurred in connection with the repair of the vessel, her appurtenances and equipment;
  8. reimbursement of the price of the cargo that the master was forced to sell;
  9. insurance premiums;
  10. any unpaid portion of the price due in connection with the purchase of a vessel;
  11. costs incurred in connection with the repair of the vessel, her appurtenances and equipment accruing during the past three years;
  12. unpaid amounts arising from shipbuilding contracts;
  13. outstanding insurance premiums over the vessel, if insurance coverage was taken in total, or over the covered part of her appurtenances, not mentioned in (11); and
  14. sums due to shippers in respect of loss or damage to cargo.

 

Claims mentioned in (1) to (9) refer to those incurred in the last voyage and as a cause of it.

Wrongful arrest

What is the test for wrongful arrest?

According to article 621 of the Civil Code, if the arrest is rendered unjustified or otherwise expires on account of the applicant, same will be held liable for damages caused to the respondent, when it is proved that it failed to act with the necessary normal prudence or due care. Also, if the arrest is in place and the claimant fails to file the initial claim for the main proceedings, within 30 days of the arrest order, the arrest shall be lifted (article 395 of the Civil Procedure Code).

Bunker suppliers

Can a bunker supplier arrest a vessel in connection with a claim for the price of bunkers supplied to that vessel pursuant to a contract with the charterer, rather than with the owner, of that vessel?

It seems there is no case law in Angola in this regard. Perhaps it would be possible to arrest a vessel in this case, but where the charterer is not the owner it would be difficult to enforce the security, unless there is lien over the vessel.

Security

Will the arresting party have to provide security and in what form and amount?

As a matter of principle, no security is required. Still, the judge is free to decide otherwise and ask the applicant to provide security in an adequate amount and form. Unless otherwise determined by the judge, the amount of the security generally corresponds to the amount of the claim. The security can be posted in any form acceptable by the court, cash deposits and bank guarantees (in terms to be agreed) being the most usual forms.

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? Can the amount of security exceed the value of the ship?

Typically, the amount of the security corresponds to the amount of the claim. Nevertheless, the judge may end up reviewing it subsequently, namely where the amount being claimed does not reflect the amount being effectively disputed. The amount of the security is not likely to exceed the value of the ship. Security can be posted in any form acceptable by the court or by the arresting party (eg, letter of intent issued by a P&I club).

Formalities

What formalities are required for the appointment of a lawyer to make the arrest application? Must a power of attorney or other documents be provided to the court? If so, what formalities must be followed with regard to these documents?

Lawyers are appointed by means of a power of attorney. Where issued abroad, and as a condition for their local acceptance and enforceability, powers of attorney must be previously notarised, legalised (before the Ministry of Foreign Affairs or equivalent body), translated into Portuguese language (by a sworn translator) and then consularised before the Angolan Embassy or Consulate with jurisdiction over the country of their issuance (Angola is not a party to the 1961 Hague Apostille Convention).

The original power of attorney must be attached to the arrest application at the time of its filling. When that it is not possible, lawyers may ask the court to grant additional time for submitting the original (where the original power of attorney is not available, the arrest application must be submitted along with a scanned (coloured) copy of the original power of attorney).

Although the submission of original documents is required, it is common practice to present scanned copies of the same, which in most cases is accepted. However, courts are always entitled to disregard copies or ask the parties to submit the relevant originals.

Documents submitted to court must be written in Portuguese. When written in a different language, parties are required to submit the relevant originals along with their translation into Portuguese language (the translation should be certified by a sworn translator).

Where, in view of the urgency, there is not sufficient time available to file the arrest application in compliance with all the required formalities, it is still possible to set the arrest procedure in motion while undertaking to the court to complete the formalities in a reasonable period of time (typically, no more than 10 calendar days).

Documents cannot be filed electronically.

There is no specific term for the preparation of an arrest application; this will typically depend on the urgency of the relevant arrest and on the complexity of the underlying claim.

Ship maintenance

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

With the issuance of the arrest order, the court will appoint a depository or custodian agent for the vessel. This agent shall be responsible for supervising the maintenance of the vessel (it is up to the owner or master and relevant crew to ensure the maintenance of the vessel in first instance; the depository or custodian agent should only be responsible for the maintenance of the vessel in the absence of her crew or where urgent decisions are to be taken).

Proceedings on the merits

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?

Claims on the merits should be initiated before the court having jurisdiction for such by reference to the law governing the contract. The arrestor may, therefore, pursue the main claim on its merits with a foreign court. The claimant is required to file the initial claim for the main proceedings of which the arrest will form an integral part within 30 days of the arrest order. However, an extension of this 30-day deadline may be required considering the difficulties of commencing procedures before a foreign court.

Injunctions and other forms of attachment

Apart from ship arrest, are there other forms of attachment order or injunctions available to obtain security?

Apart from the ship arrest, the claimant may seek to obtain security trough the attachment of any other property owned by the debtor (other than vessels) and non-specified injunctions.

Delivery up and preservation orders

Are orders for delivery up or preservation of evidence or property available?

Parties may file a motion requiring the court for the preservation of documents or property whenever there is a serious risk of their loss, concealment or dissipation. The relevant motion can be lodged whenever deemed suitable, but the applicant is required to provide due grounds for its request. Parties may also request the production of evidence within the control of the other party or request the anticipatory production of evidence (even before the proceedings are commenced) if there is a justifiable concern that the production of evidence at a later stage will be impossible or very difficult.

Bunker arrest and attachment

Is it possible to arrest bunkers in your jurisdiction or to obtain an attachment order or injunction in respect of bunkers?

Yes; bunkers may be arrested in by reference to the provisions of the Code of Civil Procedure (ie, the claimant is required to provide evidence on the likelihood of its right or credit, and that, unless the bunkers are arrested, claimant will have no other means of securing its credit).

Law stated date

Correct on

Give the date on which the information above is accurate.

15 June 2020.