The seizure of a vessel has far-reaching consequences for the vessel and its crew. Behind the apparent simplicity of this procedure lie considerable legal, economic and human implications.
I. Immediate effects on the vessel
Physical immobilisation
The seized vessel is detained in port. This is not a mere administrative formality, but a complete physical detention. The Transport Code is unambiguous: "A vessel that has been seized may not leave port" (art. L. 5114-21).
Ban on leaving the port
This ban is absolute. It applies to all ships, whatever their size or function. Only the enforcement judge can derogate from it, subject to strict conditions.
Effective control measures
A number of practical measures have been taken to ensure this immobilisation:
- Removal of on-board documentation
- Refusal to supply a pilot
- Refusal of service by tugs
- Sometimes, removal of a key part of the machine for small vessels
Notification to port authorities
The port authorities are informed of the seizure. Article R. 5114-24 of the French Transport Code stipulates that the seizure report must be notified "to the services of the port where the vessel is located". In practice, this notification is often made as soon as the order to pay is issued, to prevent the vessel escaping.
II. Economic consequences
Capital costs
A vessel at a standstill generates considerable costs. Each day of immobilisation represents a significant financial burden for the shipowner. These costs accumulate rapidly and can exceed the value of the initial claim.
Operating loss
The seizure prevents the commercial operation of the vessel. Charter or transport contracts are compromised. Penalties for delay may apply. The shipowner loses his sources of income.
Continuing port charges
The seized vessel must pay the usual port charges:
- Harbour dues
- Site rental
- Port services
- Miscellaneous supplies
These costs accumulate without the ship generating any income.
Commercial impact
Seizure affects the shipowner's commercial reputation. Shippers and charterers may lose confidence. Established commercial relationships may be severed. Future contracts may be lost.
This risk often leads the shipowner to provide a guarantee quickly in order to obtain the release of the seizure.
III. Legal status of the seized vessel
Custody and security arrangements
A custodian is appointed at the time of seizure. This role is generally assigned to the ship's captain, acting as the shipowner's representative. As confirmed by the Conseil d'Etat (CE, 20 Jan 1989, no. 60269), the autonomous port cannot provide this security.
The custodian must sign the act of seizure and ensure that the vessel is preserved.
Liability in the event of damage
The question of liability in the event of damage to a seized vessel is complex. Several players may be involved:
- The caretaker
- The distraining creditor
- The shipowner
- The bailiff
Case law has specified that "the loss of the vessel resulting from a lack of maintenance during its seizure cannot be imputed to the distrainor, unless it can be established that he was prevented from providing for the needs of his vessel through the fault of the distrainor" (Cass. com., 3 March 1998, no. 95-20.692).
Maintenance and conservation
The owner remains responsible for maintaining the vessel. Lack of maintenance can lead to rapid depreciation of the asset. In some cases, the seized vessel may deteriorate until it becomes unusable.
Insurance
Insurance policies must be maintained during foreclosure. An interruption in insurance cover could have disastrous consequences in the event of a claim.
IV. Impact on the crew
Legal status during seizure
Maritime employment contracts are not automatically terminated by seizure. In principle, the crew remains on board. But their situation becomes precarious, especially if the shipowner experiences financial difficulties.
Continuation or termination of employment contracts
Seizure is not in itself grounds for termination of contracts. However, the auctioning of the vessel (its forced sale) legitimises the dismissal of the captain under article L. 5114-26 of the French Transport Code. This provision does not extend to other crew members.
Payment of wages
The question of payment of wages during the seizure is a thorny one. In theory, the shipowner is still obliged to pay the crew. In practice, if the seizure is already the result of financial difficulties, these payments may be compromised.
Fortunately, wage claims benefit from a high-ranking maritime lien. Case law has ruled that "the wages of the crew who remained on board the seized vessel until it was sold are costs necessary for the custody and preservation of the vessel and are privileged as such" (CA Aix-en-Provence, 1 Feb 2001).
Possible repatriation
If the seizure is prolonged, the crew may have to be repatriated. This poses practical and financial problems, particularly for foreign sailors.
V. Authorised journeys
Possibility of travelling despite seizure
The enforcement judge may authorise the seized vessel to make "one or more specific voyages" (art. L. 5114-21 of the French Transport Code). This option makes it possible to avoid total detention and its disastrous economic consequences.
Conditions and guarantees
This authorisation is only granted "on proof of sufficient security" (art. L. 5114-21). This guarantee generally takes the form of a bank guarantee or a deposit of money.
The amount of this guarantee depends on a number of factors:
- The size of the distrainor's claims
- The value of the vessel
- The amount of the liability limitation fund to which the shipowner may be entitled
Return deadlines and obligations
The judge sets a precise deadline for the return of the vessel. This deadline must be strictly adhered to.
Consequences of non-return
If the vessel does not reach its port within the time limit, "the sum deposited as security shall be forfeited to the creditors" (art. L. 5114-21). In addition, the insurance indemnity will be paid to the distraining creditors in the event of an incident preventing the vessel's return.
VI. International issues
Situation of foreign sailors
International crews are in a particularly vulnerable position. Away from their country of origin, they can find themselves stranded without resources.
Role of consulates
For foreign vessels, notification of the seizure report must be made to the consul of the country whose flag the vessel is flying (art. R. 5114-24). Consulates play an information role and can provide assistance to their nationals.
Social and humanitarian aspects
Difficult humanitarian situations can arise when crews are abandoned following seizure. Ships are sometimes tied up for months or even years, with sailors living in precarious conditions.
Case law
Case law has clarified many aspects of international seizures:
- Immunity of state-owned vessels ("Sedov" case)
- The "emanation" theory for state-owned commercial fleets
- The application of the Brussels Convention of 10 May 1952, which allows for the precautionary attachment of a vessel for the maritime claims listed in Article 1 of the Convention.
Safeguarding crew rights remains a major challenge in these complex cross-border situations.
The seizure of a ship is never an insignificant act. Its consequences go far beyond the legal framework and have a profound impact on the economic and human realities of the maritime world.
Sources
- Transport Code, in particular Articles L. 5114-21 to L. 5114-29 and R. 5114-20 to R. 5114-47
- Brussels Convention of 10 May 1952 on the Arrest of Ships
- Case law: Cass. com. 3 March 1998, no. 95-20.692; CE, 20 Jan. 1989, no. 60269; CA Aix-en-Provence, 1 Feb. 2001
- Case of the Russian training ship "Sedov" (TGI Brest, 24 July 2000, no. 00/11258; CA Rennes, 27 June 2002, no. 00/04888; Cass. 1re civ., 9 Dec. 2003, no. 01-13.341)
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