The seizure of a boat, although less publicised than that of ships, is subject to an equally complex legal regime, a source of many questions for creditors and owners. Contrary to popular belief, the applicable rules are not simply a variation on those of maritime law. The legislator has provided a specific framework for inland waterway vessels, distinguishing procedures according to their size and referring sometimes to the ordinary law of seizures, sometimes to special provisions. This duality of regimes, between domestic law and international conventions, creates a legal environment where errors can have significant financial consequences. It is therefore essential to understanding the ship seizure procedure to compare it with the separate situation of boats. The assistance of a lawyer competent in these matters is often essential to navigate these murky legal waters and secure your rights. If you have any questions about these procedures, please consult our services as a lawyer specialising in ship seizures (including boats).
Introduction: specific legal aspects of boats
Before addressing the mechanisms for seizure, it is essential to define the very concept of a vessel and the criteria that determine the applicable law. The specific nature of river and inland waterway law requires a different approach to that of maritime law, particularly in terms of the physical characteristics of floating craft.
Definition of a vessel and inland navigation
The first step is to define the legal status of the craft concerned. According to article L. 4000-3 of the French Transport Code, a boat is defined as "any floating structure intended mainly for inland navigation".. This navigation takes place on what the code calls "inland waters", i.e. rivers, canals and lakes below the transverse limits of the sea. By its very nature, this definition excludes ships, which are equipped for maritime navigation. The Geneva Convention of 25 January 1965 on the Registration of Inland Navigation Vessels takes a broad view, assimilating to vessels a variety of devices such as ferries, dredgers, floating cranes and similar floating equipment. The use and purpose of the craft are therefore decisive for its classification.
Distinction according to tonnage and displacement (ordinary law vs special rules)
The complexity of the boat seizure regime is based on a fundamental distinction established by the Transport Code. It is not so much the nature of the vessel that dictates the procedure, but its size. Article L. 4123-1 of the Code establishes a threshold: boats whose deadweight is equal to or greater than 20 tonnes, or whose displacement is equal to or greater than 10 cubic metres, are subject to a special seizure regime, detailed in the regulatory part of the Code. On the other hand, boats below these thresholds (small barges, small river pleasure craft) are considered as mere tangible movable property. Their seizure is therefore governed by the ordinary law of civil enforcement procedures, in particular the seizure and sale of movable property and the ordinary law of precautionary seizure. This dichotomy is fundamental: for a creditor, correctly identifying the applicable regime is the prerequisite for any effective action.
Cases where boats cannot be seized
As with other assets, there are exceptions to the principle that boats may be seized. These are designed to protect either the debtor's work tools or the prerogatives of public authorities. Creditors must ensure that the boat they are considering seizing does not fall into one of these categories.
Workboats
The ordinary law of civil enforcement procedures, which applies in river cases, provides protection for work tools. Under articles L. 112-2, 5° and R. 112-2 of the Code of Civil Enforcement Procedures, assets "necessary for the personal exercise of the debtor's professional activity" cannot be seized. This exception applies directly and frequently to boatmen, craftsmen whose boat is often their only work tool and their home. However, this protection is not absolute. The law provides that seizure of valuable assets ceases. The seizability of a workboat will therefore depend on a case-by-case assessment of its value, which may give rise to disputes. In addition, a boat that constitutes a tangible component of a business would also lose its unseizability.
State boats
A second exception concerns vessels owned or operated by the State. The immunity from execution enjoyed by the State extends to its property, including its vessels. However, this immunity only covers vessels used for a public service and not for commercial purposes. A vessel belonging to a State but used for a commercial activity (transport of goods, tourism) could, in principle, be seized. Article 13 of the 1965 Geneva Convention enshrines this distinction by excluding from its scope vessels assigned exclusively to a non-commercial public service. The criterion is therefore not ownership, but the purpose for which the boat is used.
Preventive seizure of boats
Attachment is a preventive measure. Its purpose is not to sell the boat, but to immobilise it in order to secure a debt whose validity has not yet been established by a writ of execution. Its purpose is to put pressure on the debtor or to ensure that the asset will still be there when the creditor obtains a final court ruling.
Legal framework: ordinary law and the 1965 Geneva Convention (Protocol 2)
For vessels exceeding the tonnage or displacement thresholds, article R. 4123-1 of the French Transport Code refers directly to ordinary law. Attachment is therefore governed by articles L. 511-1 et seq. of the Code des procédures civiles d'exécution. This is a major difference from the regime for ships, which have specific rules for precautionary attachment. Where there is an international element, Protocol No. 2 annexed to the 1965 Geneva Convention may apply. This protocol concerns the seizure of ships registered in a contracting state (France, Austria, Switzerland, the Netherlands, etc.). It lays down substantive rules and conflict-of-laws rules, specifying that the procedure for seizure and release is governed by the law of the country where the measure is taken (lex fori).
Conditions for implementation (credible claim, risk of recovery)
In order to obtain authorisation to make a precautionary seizure on a vessel under French law, a creditor must meet two cumulative conditions, in accordance with article L. 511-1 of the Code of Civil Enforcement Procedures:
- A claim that appears to be well-founded in principle. There is no need for certainty; mere plausibility is sufficient.
- Circumstances likely to threaten recovery. The creditor must demonstrate a risk, such as the debtor's apparent insolvency or his desire to organise his disappearance.
Protocol 2 of the Geneva Convention lays down similar conditions: the claimant must establish the "likelihood of his right" and a "danger that, in the absence of immediate measures, it will become impossible or significantly more difficult" to recover the claim. The notion of danger to recovery is therefore central to both regimes.
Procedure and jurisdiction (enforcement judge, president of the commercial court)
The precautionary seizure of a boat requires prior judicial authorisation, obtained by a non-adversarial application to preserve the effect of surprise. Jurisdiction is shared. The principle judge is the enforcement judge (JEX) of the place where the debtor lives. However, if the claim is of a commercial nature and no legal proceedings have yet been commenced, the president of the commercial court also has jurisdiction. The purpose of this division of jurisdiction is to direct the dispute to the most appropriate court in the light of the nature of the debt. Territorially, if the debtor resides abroad, the court with jurisdiction will be that of the place where the measure is enforced, i.e. the port or place where the boat is moored.
Publication of the seizure
To be fully effective and enforceable against third parties (in particular a potential buyer or other creditors), the protective attachment must be publicised. Article 5 of Protocol No. 2 to the Geneva Convention explicitly states that the attachment must be entered in the ship's register. French law is silent on this point for protective seizures, but the practice, by analogy with enforcement seizures, is to request registration of the seizure order at the registry of the commercial court of the place of registration. Although this formality is not prescribed on pain of nullity, it is an essential precaution to secure the rights of the seizing creditor.
Release of seizure and its effects
The main effect of the seizure is to immobilise the boat. It can no longer sail. However, there are several ways for the owner to obtain a release (lifting the measure). He can challenge the measure before the judge who authorised it if he considers that the conditions (claim appearing to be well-founded, danger) were not met. More frequently, they can obtain release by providing sufficient security, usually a bank guarantee or the deposit of a sum of money, to cover the amount of the alleged debt. This guarantee replaces the boat, which is then released and can resume operations. Seizure is therefore a provisional measure that freezes a situation pending a solution to the substance of the dispute.
The seizure and execution of boats
Unlike the precautionary measure, seizure and execution is a forced execution procedure. Its ultimate aim is to sell the boat at public auction in order to pay the creditor with the proceeds of the sale. It is a more cumbersome and formal procedure, and assumes that the creditor already has a final court decision.
Legal basis (Transport Code and reference to ordinary law or seizure of property)
The seizure of boats weighing more than 20 tonnes is specifically regulated by articles R. 4123-2 et seq. of the French Transport Code. This procedure is similar to that for the seizure of ships and is partly inspired by the seizure of real estate. A question arises when these special texts are silent: should the ordinary law of seizure and sale of movable property or that of seizure of immovable property be applied? The economic importance of the boats concerned and their assimilation to "immovable property by nature" for certain aspects of their legal regime argue in favour of a subsidiary application of the rules of seizure of immovable property. This method of enforcement leads to the forced sale of boatsA final, supervised stage.
Conditions (writ of execution, ownership of the boat)
The sine qua non of seizure and execution is that the creditor must hold an enforceable title, as provided for in article L. 111-2 of the Code of Civil Enforcement Procedures. This is most often a court decision that has become res judicata (which is no longer subject to an appeal suspending enforcement) or a notarised deed bearing the executory clause. A simple claim, even one that appears to be well-founded, is insufficient. In addition, the seizure must relate to a vessel belonging to the debtor named in the title. Seizure of other people's property is in principle impossible, except for creditors with a right of pursuit, such as a mortgagee.
Procedure (summons to pay, notice, notification, publicity)
The seizure-execution procedure is formalistic and takes place in several key stages:
- Order to pay: The bailiff first serves the debtor with a summons to pay, an order to pay the debt.
- Seizure report : If payment is not made within twenty-four hours, the bailiff may proceed with the seizure. He will go on board and draw up a detailed seizure report and appoint a guardian.
- Notification and summons : Within three days, the creditor must serve a copy of the report on the owner and summon him before the execution judge at the place of seizure to order the sale.
- Advertising: The report must be transcribed within three days at the registry of the commercial court in the place where the boat is registered. This transcription renders the boat unavailable: it can no longer be sold or mortgaged by its owner. The seizure is also notified to the other creditors registered on the boat, who are invited to assert their rights in the proceedings.
Failure to comply with these time limits and formalities may invalidate the entire procedure. Strict compliance is therefore essential.
The seizure of a vessel, whether as a precautionary measure or for enforcement purposes, is a technical procedure in which each stage is governed by strict deadlines and conditions. The fundamental distinction linked to tonnage, the use of ordinary law or special regimes, and the interaction with international law create a complex legal landscape. Faced with a debtor owning such an asset, or as an owner threatened with seizure, anticipation and expert advice are essential if you are to defend your interests effectively. We provide tailor-made support in the implementation of these enforcement procedures, our services as a lawyer specialising in ship seizures (including boats) are at your disposal.
Sources
- Transport Code
- Code of civil enforcement procedures
- Commercial code
- Geneva Convention of 25 January 1965 on the Registration of Inland Navigation Vessels, and its Protocol No. 2
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