Practice of precautionary arrest of vessels in Benin: the case of arrest for damage by extrapolation
When unloading certain goods, such as cereals, it is common practice in Benin, as in all West Africa countries, that cargo interests request a guarantee covering damage to the goods. The guarantee thus requested is intended to cover all damage, including foreseeable damage which has not yet been actually ascertained by surveyors. To assess such future damage, the surveyor shall proceed by extrapolation: based on the damage ascertained at a certain moment, he shall calculate an estimate of the additional future damage likely to occur by the end of unloading.
Where the parties do not agree on the issuance of the guarantee, cargo interest would apply to the court to obtain an order for precautionary arrest of the vessel.
Until recently, the Beninese judge granted the warrant of arrest on the basis of extrapolated figures without difficulty.
However, two recent cases seem to mark a change in judicial practice in Benin. Indeed, in these two cases the Beninese judge refused to grant the warrant order on the ground that the “certain” nature of the claim was not sufficiently established by the assessment by extrapolation of the final damages.
Concretely, what did the Beninese judge ask in these two cases before granting the warrant of arrest? The judge requires the applicant to disclose a surveyor’s report of actual damage, and not a simple table of estimates made by extrapolation.
This new requirement by the Beninese judge weakens the position of the creditor who wishes to obtain a guarantee covering the entire damage likely to be noted at the end of the discharge operations. This is because it is obviously not materially possible for the surveyor to provide final damage figures before the end of the unloading operations. Therefore, if cargo interests have to wait until the end of the unloading, the ship will already be far away when the arrest request is filed!
This position of the Beninese judge is debatable, insofar as the extrapolation of damage is not made ex nihilo: it results from surveyor’s calculations a few days before the end of the unloading operations, based on the damage already noted, taking into account the well-established fact that unloading operations in the port of Cotonou inevitably generate damage linked to the methods and material means used by stevedores.
It is in any event unfounded if the arrest is governed by the 1952 Convention, which does not require the claimant to prove a definite claim: the mere allegation of a maritime claim is sufficient.
For the record, ship arrest in Benin is governed either by the 1952 Convention or the Beninese Maritime Code of 2010. Both texts contain a list of maritime claims, but the Beninese Maritime Code also requires that the creditor wishing to arrest the ship must prove that the claim is definite, i.e. not hypothetical.
It is moreover permissible to wonder about the meaning of the “definite claim” condition imposed by the Beninese Maritime Code for arrests which do not fall within the scope of the 1952 Convention. Indeed, the Maritime Code defines “maritime claims” but does not make them a condition of the arrest, so that this definition is unnecessary with regard to the letter of articles 155 to 159 of the Maritime Code relating to the precautionary arrest of ships. One may therefore wonder whether the term “definite” is not a typo of the Beninese legislator and whether it should not read “maritime claim” instead of “definite claim”.
It should be recalled that the precautionary arrest of a ship by cargo interests with a view to obtaining a guarantee covering damages at the end of unloading is not intended to achieve a forced sale but to cause the temporary detention of the ship in order to obtain a guarantee.
This new judicial practice is in any case good news for shipowners. It reinforces the protection they are granted against precautionary arrest. Indeed, in Benin, contrary to neighbouring countries, an arrest can only be carried out 24 hours after having served a summons to pay to the ship. In practice, this summons is attached to the arrest application and the warrant of arrest can be issued the same day and served as soon as the 24-hour period expires. However, it may happen that the Beninese judge is not available to sign the order the same day, which in fact lengthens the period between the summons to pay and the issuance of the arrest order.
The service of the summons to pay usually leads the parties to reach an agreement and avoid seizure. If the amicable discussions fail, the shipowners will not be surprised to receive the arrest notification, and may, if necessary, speed up the unloading operations in order to bring forward the departure of the vessel and avoid an arrest which they would consider inappropriate.
If this recent judicial practice is confirmed, cargo interests will have to adapt their strategy for securing their claims. It is therefore likely that, in order to overcome the difficulties of a last-minute security claim, cargo interests will probably make security claims just a few days after the beginning of discharge operations, rather than a few days before completion of discharge as is the case today.
We will follow the legal developments and see whether this recent practice is an epiphenomenon or whether the trend is continuing.
If you are interested in this subject, please do not hesitate to contact us for further information.
H. Romain SOGLO & E. Julien KOKOU