April 30, 2014 Letter from Case Authority to the Urgent Matters Judge
(from right to left)
Omar Wafik Tarabah
Lawyer of the Lebanese State
Civil and Arbitration Cases
Masters in Private Law
Date of Receipt: April 30, 2014
No: 429/214
Beirut, April 30, 2014
HH Judge of Urgent Matters in Beirut
Request for a writ on Petition
Petitioner: Lebanese State – Ministry of Public Works and Transfer (Directorate General of Land and Maritime Transport)
Represented by: Lawyer Omar Tarabah according to decree 9787/2013 a copy of which is hereto attached (Doc no.1)
Re: Request to authorize the refloating or sale of the ship “Rhosus” pursuant to articles 13 and 11 of the above-mentioned decision, together with article 589 of the [code] of Civil Procedures.
First – On the facts:
- On November 21, 2013, the ship “Rhosus” docked in Beirut Port carrying onboard Ammonium Nitrate (a substance classified as hazardous), to ship cargo from the Port. Following a dispute between “Bunkernet LTD” and the ship owners, the head of the Enforcement Department in Beirut issued decision no 1031/2013 dated December 20, 2013, to impound provisionally the ship and ban it from leaving the Lebanese Territorial Waters unless it posts a bail as a guarantee for the debt of the impounding company as proofed in the copy of the decision hereto attached (Document no.2).
- On November 25, 2013, the foreign and national ship control service at the Directorate General of Land and Maritime Transport inspected the ship to make sure it is safe for navigation and ensure that it is complying with local and international regulations related to the safety of the maritime navigation and the safety of life at sea, and the environmental and public safety. The inspection revealed the presence of some flaws in the ship that jeopardize the maritime navigation safety and it was banned from leaving [the territorial waters] until the flaws are repaired. The captain and the maritime agent were notified about this. The most notable flaws were the presence of corrosion and rust in the ship’s hull and hold hatches and some navigation equipment was not working properly.
- The Beirut harbor master noted that the ship is berthed at Quay 11 at Beirut Port, and it was carrying ammonium nitrate, a hazardous substance,and that he requested from the maritime agent of the ship more than once to supply the sailors present onboard of the ship with food and water to but in vain. The Beirut harbor master requested taking the necessary measures to force the maritime agent to supply the sailors with food and water and ban the maritime agent from evacuating them from the ship until the crew is replaced by a new one to ensure the safety of the ship, the maritime navigation and the public safety in the port. He [the Beirut harbor master] notified him as well that later on the “Rhosus” was transferred from Quay 11 to the breakwater and that it was carrying a hazardous substance (ammonium nitrate) and the Beirut harbor master found that there is water in the ship’s holds which indicates that water is leaking into the ship which might lead to the sinking of the ship. He asked to prepare a new report about the situation and safety of the ship to take the necessary measures to avoid its sinking in the port.
- On April 2, 2014, the Ship Inspection Service at the Directorate General of Land and Maritime Transport returned to inspect the ship and examine its safety for navigation, its compliance with the national and international regulations related to the safety of maritime navigation, the safety of life at sea in addition to the environmental and public safety, and to examine whether the flaws discovered during the previous inspection were repaired. It was found that the mentioned flaws were not repaired, and the flaws in the ship further deteriorated according to the inspection report of the National and Foreign Ship Inspection Service at the Directorate General of Land and Maritime Transport (the letter of the ministry to which was attached a technical report, is hereto attached). It should be noted that the “Rhosus” is still berthed at the breakwater in Beirut Port and it is at risk of sinking because of the negligence of its owners, which jeopardizes the safety of the ship, the safety of the maritime navigation and the marine ecosystem and threatens the maritime traffic at the Port, which is an issue that requires filing this petition.
Second: On the Law
Whereas It is established by the information submitted under “Facts” that the owners of the ship, the Maritime Agent and the captain, whose names are mentioned in the report attached above, neglected to repair the flaws in the ship, which are flaws that jeopardize the safety of the maritime navigation, especially since the ship contains the hazardous material ammonium nitrate, and it will inevitably sink if it remains as it is now, and this would endanger the marine ecosystem.
Whereas, by virtue of a special text, Article 13 of Decision 166 dated July 3, 1941, on maritime disasters grants to the Judge of Urgent Matters “in the event that the ship sinks, or is likely to sink or is stranded in the port and becomes a hindrance to navigation or a danger thereto”, the power to authorize the Counselor of Maritime Affairs to take the place of the ship’s owner (if the latter is proven to be negligent), to perform and complete works of refloating and demolition at the expense and responsibility of the ship’s owner within the limits of salvage value. Furthermore, if the ship suffers a maritime disaster or is incapacitated so as to render it unfit for transportation, Article 11 of the said decision allows the ship to be sold as wreckage.
Whereas in this context and pursuant to Article 13 of Decision 166/41, it has been decided:
“Whereas Article 13 of Decision 166/1941 gives the Judge of Urgent Matters the right to grant authorization to the entity responsible for maritime affairs to take the place of the ship’s owner and perform and complete works of refloating and demolition at the expense and responsibility of the vessel’s owner. Whereas the presence of the sunken vessel constitutes a hindrance to the free navigation and causes harm, it is decided to grant the General Directorate of Transport authorization to take the place of the ship’s owner to perform and complete works of refloating or demolition at the expense and responsibility of the vessel’s owner within the limits of salvage value.
(In this regard, see the decision of the Judge of Urgent Matters in Beirut No. 25, dated January 8, 1972, Judge Mansour, Case filed by the Ministry of Public Works and Transport, Hatim part 123, p. 64, published in Rulings of the Judiciary of Urgent Matters, p. 735)
(See in the same context Decision No. 104 dated February 7, 2003, published in the Guide to the Jurisprudence of Urgent Matters, Judge Mahmoud Makkieh, 2004, p. 489).
Whereas after it has been proven that the ship is damaged and unfit for maritime navigation, the flaws have worsened and water has entered the ship through the cargo hold and the ship contains materials that are hazardous to the marine ecosystem, by virtue of the decision issued by the Compagnie de Gestion et d’Exploitation du Port de Beyrouth, and to preserve the rights of the impounding company.
Whereas, according to all the above, and pursuant to articles 13 and 11 of the aforementioned decision, together with article 589 of the [code] of Civil Procedures.
Therefore,
The petitioner respectfully requests your Honorable Court to issue a decision in the deliberation room about the following:
First: Authorize the petitioner through the Directorate General of Land and Maritime Transport to complete the refloating of the Rhosus in a manner that does not affect or threaten the maritime navigation and authorize the petitioner as well to transfer the material carried onboard, namely Ammonium Nitrates, given the risk it poses on the safety of the marine ecosystem, to a safe and guarded location.
Second: Authorize the petitioner as appropriate, and after recovering the ship and the material onboard, as deemed appropriate and necessary by the Administration, to sell the ship and what is onboard, on condition that the sale proceeds to be saved, as a guarantee of the amounts due to all rights holders pursuant to the provisions of the Maritime trade law, whether the right holders were the petitioner, the entity requiring the impoundment or other rights holders.
Respectfully by the power of attorney
Lawyer Omar Tarabah
[Signature]