Ship Arrest in Tunisia

Tunisia has not ratified OMI/ONU 1999 International Convention on the Arrest of Ships. Nevertheless, Tunisian legislator has consistently drawn inspiration from Brussels International Convention of May 10, 1952.

Tunisian Maritime Trade Code and Civil & Commercial Procedure Code constitute the legal framework enabling the arrest of any vessel serving its commercial ports whith a streamlined and expeditious procedure.

Bizerte M.Bourguiba; Goulette; Rades; Sousse; Sfax; Skhira; Gabes; Zarzis ports make Tunisia one of the preferred destinations for debtors seeking ship arrests. 

Generally, here is what local laws allow for ship arrest purposes:

• No substantial difference between arresting a ship for a maritime claim or a maritime lien.

• Arrest of a ship under the control of a charterer for maritime claim against a time charterer.

• Arrest of another ship owned by the same owner, especially concerning regular maritime Lines.

• Requirement to deposit counter-security to cover costs, charges, damages, fees, or other expenses resulting from a potentially wrongful arrest is generally not applicable.

• Ship arrest within 24 to a maximum of 48 hours.

• Acceptance of electronically filed documents supporting the debt and associated expenses, with the sole condition that they are translated into the Arabic language.

• No need of POA for initiating this procedure.

Moreover, alternative avenues for ship arrest in Tunisia include the forced execution procedures of international judgments, administrative decisions from the Ministry of Transport, criminal convictions, or international arbitral awards endowed with enforceability by local jurisdictions. These serve as additional means for ship arrests, whether through conservatory arrest orders or freezing orders.

Article 101 of the Tunisian Maritime Commercial Code states :

Maritime claims consist of claims for a right or a debt arising from one of the following causes:

1. Damage caused by a ship, either by collision or otherwise;

2. Loss of human lives or bodily injury caused by a ship or arising from the operation of a ship;

3. Assistance and salvage;

4. Contracts relating to the use or leasing of a ship by charter party or otherwise;

5. Contracts relating to the carriage of goods by a ship under a charter party, a bill of lading, or otherwise;

6. Loss or damage to goods and baggage transported by a ship;

7. General average;

8. Towing;

9. Piloting;

10. Supply, wherever it occurs, of products or materials to a ship for its operation or maintenance;

11. Construction, repair, equipment of a ship, or dock charges;

12. Salaries of the captain, officers, or crew members;

13. Disbursements of the captain and those made by shippers, charterers, or agents on behalf of the ship;

14. Dispute regarding the ownership or co-ownership of a ship;

15. Operation or rights to the proceeds of the operation of a ship;

16. Any maritime mortgage and generally any claim arising from one of the causes allowing the application of the limitation of liability for shipowners or ship operators.

Tunisia does not recognize governmental immunity for state-owned commercial ships, thereby allowing the arrest of any navigable ship, including pleasure crafts. 

Local courts possess in rem jurisdiction over any ship navigating in Tunisian waters or docking in Tunisian ports, and in personam jurisdiction over its owners, operators, and charterers. 

Claims subject to Tunisian jurisdiction authorize the arrest of a ship, irrespective of whether the underlying debt is incurred by the owner, disponent owner, operator, or charterer. 

Consequently, any authorized entity binds the ship in rem, signifying that the legal action is directed against the ship itself rather than a specific individual. 

Therefore, the ship can be arrested even if the ship owner is not the debtor in the maritime claim. 

Generally, it is the ship itself, through a First Preferred Ship’s Mortgage, that bears the primary responsibility for payment, with the owner incurring personal liability only if they have signed a personal promise or guarantee to pay. 

Facilitating the release of a detained ship in Tunisia involves various procedures, depending on whether the instigator is the Defendant or the Claimant.

If the Defendant initiates the release, an urgent legal measure termed "référé" must be pursued before the relevant court. This necessitates a prompt intervention before the court to petition the release of the apprehended ship.

On the contrary, if the Claimant seeks to effect the release, a court appearance is unnecessary. The only requisite is a notification of release by a bailiff, contingent on the Defendant's settlement of the claim or a mutual agreement involving payment, an acceptable bank guarantee, or a cash deposit.

Regarding the type of guarantee essential for release, it must be a bank guarantee issued by a Tunisian bank or a cash deposit with the Tunisian General Treasury Department.

The determination of whether the guarantee should encompass interest and costs often relies on the judge's directive. In specific instances, it is obligatory, yet this discretion rests with the judge.

It is imperative to underscore that Letters of Undertaking (LOUs) from the Club are not recognized in Tunisia for lifting the arrest of the ship.

Concerning the timeframe for the ship's release, the process generally spans between 4 and 10 hours, allowing for a reasonably prompt resolution of the arrest circumstance.

Ship arrest in Tunisia triggers a series of consequential procedures and considerations. Firstly, the contested nature of an arrest can be addressed through an emergency legal recourse known as "référé," which must be initiated within 8 days from the date of the arrest notification. Subsequently, the legal timeframe granted by Tunisian courts for claimants to pursue substantive legal action is contingent upon case validation within one month if the arrest is lifted, surpassing which necessitates immediate action.

In instances of wrongful arrest, Tunisian courts entertain such claims under specific conditions. If the claimant, with knowledge of lacking a maritime lien or the right to arrest, proceeds with an arrest intending harm to the defendant, the burden of proof lies with the defendant to substantiate damages incurred due to wrongful arrest.

Moreover, the concept of piercing and lifting the corporate veil is not a common inclination within Tunisian courts, as they generally uphold the sanctity of corporate personality.

In the eventuality of a ship being sold pendente lite, Tunisian Law mandates that the arrester must possess an enforceable title, such as a final arbitration award or court decision. The sale procedure, conducted through public auction, typically spans three to six months. Notably, the court's decision to sell the vessel is immune to appeal but can be invalidated if procedural protocols are not adhered to. Interested parties can challenge the auction within a stipulated timeframe, ensuring a robust legal framework throughout the vessel sale process.