MOZAMBIQUE Law and Practice Contributed by: José Miguel Oliveira, Kenny Laisse and Caio de Mello Ferreira, VdA
Ship Maintenance Once the vessel is arrested and until it is sold in the enforcement proceedings, an agent appointed by the court will be liable for supervising its maintenance, whenever the Master and their crew are absent or urgent decisions are to be taken. Claim Priority The order of priority of claims is established under Article 578 of the 1888 Commercial Code, as men - tioned in 5.2 Maritime Liens . 5.11 Insolvency Laws Applied by Maritime Courts Mozambique’s bankruptcy regime is set forth in Decree-Law No 1/2013 of 4 July 2013. The purpose of this law is to regulate: • the recovery of natural and legal persons in eco - nomic distress or “imminent insolvency”, provided that the recovery is viable; and • the legal regime of insolvency proceedings of natu - ral and legal persons. Pursuant to Decree-Law No 1/2013, acceptance of a request for the debtor’s judicial recovery protects the debtor’s assets against creditors – ie, once this request is accepted, all suits pending against the debtor are suspended, which means that the maritime court shall be barred from ordering the arrest or judi - cial sale of a vessel owned by companies undergoing such proceedings. The same applies to proceedings in which the debtor is adjudicated as insolvent by the relevant court of law. 5.12 Damages in the Event of Wrongful Arrest of a Vessel In the event of wrongful arrest of a vessel or where the arrest is lifted for reasons imputable to the applicant, the applicant is liable for the damages caused to the arrestee, provided that the applicant has not acted with normal prudence or due care, as set out by Article 621 of the Civil Code.
As mentioned, the security may be deposited in any form considered acceptable by the court, including cash deposits or bank guarantees. Both under and outside the Brussels Convention, the
vessel shall also be released: • upon payment of the debt;
• in the event the main claim is not commenced within 30 days – or a different time period estab - lished by the court when the claim is subject to a jurisdiction of a foreign court – from the arrest being ordered, or the claim has had no develop - ments for a period of more than 30 days for rea - sons imputable to the creditor; • where the main claim is definitively dismissed; • where the main claim is upheld but the debt remains outstanding and the creditor does not initi - ate the enforcement proceedings within six months from the claim being definitively upheld, or where the claim has had no developments for a period of more than 30 days for reasons imputable to the creditor; or • where the credit ceases to exist. Typically, courts are reluctant to accept clubs’ letters of indemnity as security. 5.10 Procedure for the Judicial Sale of Arrested Ships Procedure Usually, the judicial sale of arrested ships requires that a new enforcement proceeding be initiated by the creditor before the competent court. Once the application is lodged, the court will notify the debtor to settle the claim or offer its opposition, as well as notify any other interested parties, such as secured creditors. If the sale is ordered, the judge will decide on how it will take place, and then appoint an auctioneer. The vessel is sold “as is and where is” and free from any charges or encumbrances. This notwithstanding, the debtor may still recover the vessel until completion of the judicial sale, provided it deposits the amount being claimed plus court fees and expenses.
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