Conservatory arrest of vessels: is it a preventive or an abusive action?

Even if it is up to the court to decide in each case whether the arrest is abusive or not; it is strongly noted that the conservatory arrest is a recognized right to creditors by internal and international law.

It is the extremely easy exercise of this action which risks leading to an abuse of law and its numerous consequences, taking into consideration the recent legal framework characterized by insufficient texts that are interpreted in a general and a liberal manner by the courts.

Despite its gravity and its frequency, the conservatory arrest of vessels in Morocco is regulated in a very insufficient/ poor manner.

Till 03 May 90, date of ratification by Morocco of the Brussels’ convention of 1952, the conservatory arrest was ruled internally by only one text: Article 110 of Dahir 31.1.1919 constituting the Maritime Commercial Code; a legal monster that allows the arrest of any building at each time for any debt even if this latter is not maritime and has no relation with the exploitation of the vessel.

The entering into force of the Brussels Convention of 1952 in Morocco has limited to 17 the number of maritime debts authorizing this conservatory arrest, but no disposition of repairs of abusive or unjustified arrests is expected by the internal law or the Brussels convention.

The only protection of the arrested vessel resides in the recognized right to courts whom condition the arrest order by issuing a counter guarantee. Yet, this protection remained in theory as it has very rarely been put into practice.

The exorbitant powers of arrest acknowledged hence to the arrester risk in these circumstances to leading to an abuse of this right.

Let us imagine the consequences of vessels immobilization further to the conservatory arrest in ports of Tanger-Med, Casablanca, Jorf-Lasfar or Mohammedia. Let us imagine these disastrous consequences for the port, the cargo, the vessel, the crew…. It is the whole regional even national economy which is impacted. No sector is safe.

In order to avoid this kind of consequences, insuring creditors rights; urgent measures should be taken. We cite two aspects of this abuse of arrest right before recommending certain preventive measures.

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Biography of Mohamed LAAZIZI

Doctor in Maritime law graduated from NANTES University, an experienced qualified claim handler. 23 years experience in maritime insurance, shipping and in different insurances companies; such as CAMM and WAFA ASSURANCE. He joined DEFMAR in 1999. A lecturer in French universities and some Moroccan high schools, he has publications in Moroccan and French legal Reviews.