MOZAMBIQUE Law and Practice Contributed by: José Miguel Oliveira, Sara Alves Lourenço, Kenny Laisse and Caio de Mello Ferreira, VdA
4.10 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 inter - ested parties, such as secured creditors. If the sale is ordered, the judge will decide on how it will take place, and then appoint an auc - tioneer. The vessel is sold “as is and where is” and free from any charges or encumbrances. 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. Ship Maintenance Once the vessel is arrested and until it is sold in the enforcement proceedings, an agent appoint - ed 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 mentioned in 4.2 Maritime Liens . 4.11 Insolvency Laws Applied by Maritime Courts Mozambique’s bankruptcy regime is set forth in Decree-Law No 1/2013 of 4 July 2013. The pur - pose of this law is to regulate: • the recovery of natural and legal persons in economic distress or “imminent insolvency”, provided that the recovery is viable; and
bail or other security being furnished, save for arrests in respect of any of the maritime claims regarding disputes as to the title or ownership of the ship, or in disputes between co-owners of the ship as to the possession, employment or earnings of any vessel. In such cases, the court may permit the person in possession of the ves - sel to continue trading it, upon such person fur - nishing sufficient bail or other security. Outside the Brussels Convention, the vessel will also be released if security is provided in the form and amount deemed sufficient by the court. 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 Conven- tion, 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 established 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 developments for a period of more than 30 days for reasons 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 initiate the enforcement proceedings with - in six months from the claim being definitively upheld, or where the claim has had no devel - opments 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 club’s letters of indemnity as security.
384 CHAMBERS.COM
Powered by FlippingBook