When a creditor seeks to recover its debt from a shipowner or operator, the immobilisation of the vessel by means of a protective attachment is a formidable weapon. This measure, although temporary, paralyses the commercial operation of the asset, creating a strong incentive to pay. However, its implementation is governed by a complex legal system that combines ordinary law and rules specific to maritime law. This technical article, which follows on from our guide on precautionary seizure of shipsThe purpose of this document is to set out in detail the procedure for obtaining a seizure, the conditions for releasing it and the resulting division of responsibilities. The assistance of a lawyer competent in ship seizure is often essential for navigating these legal waters.
Procedure for obtaining the precautionary seizure of a vessel
Arresting a ship is a rigorous procedure that combines sources of international and national law. The creditor must act methodically to ensure the effectiveness of his approach and avoid procedural pitfalls.
Jurisdiction of national law and prohibition of repeat seizures
The fundamental principle in seizure proceedings is that of the right to a fair hearing. lex foriThis means that the law of the place where the seizure is carried out applies. The 1952 Brussels Convention, the cornerstone of international attachment law, expressly refers to national laws for all procedural matters (obtaining authorisation, incidents, etc.). Thus, an attachment carried out in a French port will be subject to French procedural rules, regardless of the nationality of the vessel, the creditor or the debtor.
Furthermore, in order to protect shipowners from judicial harassment, Article 3(3) of the 1952 Convention prohibits multiple attachments as a matter of principle. A ship may not be seized more than once for the same claim and by the same claimant in the jurisdiction of one or more Contracting States. If a guarantee has been provided to obtain the release of a first attachment, any subsequent attachment of the same vessel, or of any other vessel of the same owner for the same claim, will have to be lifted by the court. However, there are limits to this protection, in particular if the creditor proves that the initial guarantee was released before the new seizure or if there is another valid reason for maintaining it.
Sources of French law (Transport Code, Code of Civil Enforcement Procedures)
In France, the seizure of ships is governed by two sets of regulations. On the one hand, the Transport Code (in particular articles L. 5114-21, L. 5114-22 and R. 5114-15 to R. 5114-19) sets out the special rules for maritime matters. These provisions, which stem from earlier laws and decrees, have been codified for greater clarity. Secondly, and subsidiarily, the Code of Civil Enforcement Procedures (CPCE) applies to all matters not specifically governed by maritime law. This link is essential: the CPCE forms the general law governing precautionary measures, but it is disregarded whenever a specific rule of the Transport Code is to be applied.
Rules of jurisdiction (territorial and substantive jurisdiction of the enforcement judge)
Determining which court has jurisdiction is a fundamental step. In territorial terms, article R. 5114-16 of the Transport Code derogates from ordinary law and designates the court for the place where the measure is to be enforced. In other words, for a ship in the port of Marseille, the competent court will be that of Marseille, even if the debtor has its registered office abroad. This rule is of considerable practical importance because it anchors jurisdiction in France as soon as the vessel is physically present there.
In material terms, jurisdiction has changed. Today, it is mainly vested in the enforcement judge (JEX), in accordance with article L. 511-3 of the CPCE. However, the President of the Commercial Court may also have jurisdiction, but only if the application is made prior to any proceedings on the merits and if it seeks to preserve a claim of a commercial nature. This is therefore a concurrent jurisdiction, although the role of the Enforcement judge remains central to foreclosure litigation.
Need for judicial authorisation and implementation of the seizure act
One of the major specificities of maritime law is the almost systematic requirement for judicial authorisation to carry out a precautionary seizure. Unlike ordinary law, where a creditor in possession of a writ of execution may act without prior authorisation, in the case of ship seizures, the measure must be approved by a judge. This procedure is carried out on application, i.e. without any hearing of the parties, in order to preserve the element of surprise and avoid the vessel leaving port before the seizure is effective.
Once the authorisation order has been obtained, the creditor must have it enforced by a bailiff. The bailiff draws up a seizure deed, the content of which is strictly regulated by article R. 5114-18 of the French Transport Code. Under penalty of nullity, this deed must mention the judge's authorisation, the identity of the parties, the amount of the debt, the characteristics of the vessel and the prohibition on the vessel leaving the port. The master of the ship and the harbour master's office are then notified of the deed, which makes the detention effective.
Action on the merits and validity of the seizure
Attachment is only a provisional measure. For it to lead to payment, the creditor must obtain a court decision definitively recognising his claim. This stage is governed by strict time limits and precise jurisdictional rules.
Obligation to bring an action on the merits and risk of nullity (French law vs. 1952 Convention)
Under French law, a creditor who has carried out a protective attachment without holding a writ of execution is obliged to initiate proceedings to obtain one. Article R. 511-7 of the Code of Civil Enforcement Procedures requires them to take action "within one month of the execution of the measure". This action may be a writ of summons on the merits or any other formality required to obtain a title, such as the initiation of arbitration proceedings. If the one-month time limit is not observed, the seizure lapses. The protective measure is then cancelled retroactively, as if it had never existed.
This monthly lapse rule is a special feature of French law. It does not apply when the attachment is based on the 1952 Brussels Convention. In this case, if the court authorising the attachment does not have jurisdiction on the merits, it may set a time limit for the creditor to bring his action. However, failure to comply with this time limit does not automatically render the seizure null and void. The debtor will only be able to request that the seizure be lifted, which constitutes a significant difference in regime that protects creditors acting under the terms of the international convention.
Jurisdiction on the merits and limits of the forum arresti
The question of which court has jurisdiction to rule on the merits of the dispute is distinct from the question of jurisdiction to authorise the seizure. For a long time, French case law accepted the jurisdiction of the arresti forum The court of the place of seizure had jurisdiction to rule on the claim itself. This solution has been abandoned. Today, the mere fact that a ship has been seized in France is no longer sufficient to justify the jurisdiction of the French courts to hear the merits of the case.
Jurisdiction must be established on the basis of other connecting factors (place of residence of the defendant, place of performance of the contract, etc.). However, the 1952 Brussels Convention provides for exceptions to this principle. Article 7 of the Convention lists six cases in which the court of the place of seizure will have jurisdiction to rule on the merits, in particular if the claimant is resident in that State, if the maritime claim arose in that State, or if it arises from a collision or salvage operation. Outside these cases, the creditor must bring his action before the competent foreign court.
Follow-up to the seizure: immobilisation, release and authorisation to operate
Once the vessel has been seized, it is immobilised. This situation, which is highly prejudicial to the shipowner, opens a phase of negotiation or legal challenge in which the debtor will seek to obtain the release of his property.
Main effect of seizure: physical and legal immobilisation of the vessel
The most immediate and tangible consequence of seizure is that the vessel is prohibited from leaving the port. This detention, notified to the harbour master's office, is both physical and legal. The ship's departure would constitute an offence of misappropriation of a seized object, punishable under criminal law. If immobilisation is the primary effect, a question remains as to the extent of the legal unavailability of the property. While an earlier text stated that seizure did not affect the owner's rights, its repeal may have left room for doubt. It is generally accepted that the owner retains the right to dispose of his vessel (sell it, for example), but the buyer would receive it encumbered by the seizure. For a more detailed analysis of this issue, see our article on the effects of the seizure on the vessel and crew.
Opposition by the seized debtor: withdrawal, release against security, invalidity for inaction
In the event of the vessel being detained, the debtor has a number of remedies at his disposal to contest the measure. Firstly, he can ask the judge who authorised the seizure to revoke his order. This action, taken in summary proceedings, enables the debtor to set up an adversarial debate and demonstrate that the conditions for the seizure (for example, a claim that appears to be well-founded in principle) were not met. Secondly, and this is the most common course of action, the debtor can request that the attachment be lifted by offering sufficient financial security to cover the debt. Thirdly, he can invoke the lapse of the measure if the creditor has not brought an action on the merits within the one-month period allowed under French law. To find out more about the general mechanisms, please consult our page on release of the seizure.
Conditions for release against provision of a guarantee (types, amount, limitation fund)
Release against security is a right of the debtor. The judge is obliged to grant it if "sufficient security" is provided. This guarantee usually takes the form of an irrevocable bank guarantee or a letter of guarantee issued by a P&I Club (shipowners' mutual insurance association). The amount of the guarantee is a key issue. In the absence of agreement between the parties, the judge sets it at his or her discretion. It must be sufficient to pay off the creditor. The debate often centres on whether this amount should correspond to the value of the claim or to the value of the ship, which is sometimes much lower. In principle, the security replaces the vessel and should not exceed its value.
A special case is that of the constitution of a liability limitation fund, in accordance with the 1976 LLMC Convention. If the debtor is entitled to limit his liability for the claim in question, the constitution of this fund obliges the judge to order the release of the attachment.
Authorisation to operate the seized vessel on specific voyages
In exceptional circumstances, article L. 5114-21 of the French Transport Code allows the enforcement judge to authorise a seized vessel to make "one or more specific voyages". This measure, which is not a release, is subject to the provision of sufficient security. It remains rare in practice, in particular because release against security is a simpler and more definitive solution. It is mainly used in situations where release is impossible, for example in the event of a dispute over the ownership of the vessel itself, where the security cannot simply be substituted for the property.
Responsibility, custody and maintenance of the seized vessel
Keeping a ship at berth for an extended period raises complex questions about its safekeeping, maintenance and liability in the event of damage.
Identification of the custodian and liability in the event of damage or looting
Positive law is relatively silent on the identity of the custodian of a vessel seized as a precautionary measure. Unlike in the case of execution, the bailiff is not formally obliged to designate a custodian. Faced with this vacuum, case law has developed a nuanced approach. As the owner is not legally divested of his property, he retains some responsibility for its preservation. However, this does not mean that the distraining creditor is relieved of all obligations. It is obliged to take the necessary measures to safeguard the vessel, especially against external risks such as looting, vandalism or meteorological events. Jurisprudence has thus held the creditor liable for negligence, for example in the event of a lack of surveillance or a failure to give appropriate instructions to the custodian, if there is one. Liability is often shared, and is assessed by the courts on a case-by-case basis.
Maintenance of the seized vessel
The question of routine maintenance of the vessel (maintenance of machinery, painting, etc.) is more clearly defined. The protective attachment does not have the effect of transferring this burden to the creditor. As the owner is not deprived of his rights over the vessel, it is his responsibility to continue to ensure its normal maintenance. The distraining creditor can only be held liable in this respect if the owner can demonstrate that he has been prevented from maintaining his vessel through the fault or actions of the distraining creditor. The cost of immobilisation and maintenance therefore remains, in principle, a burden for the distrained debtor, which reinforces the effectiveness of the measure as a means of pressure.
The procedure for the precautionary seizure of a vessel is a technical one, and its financial consequences can be considerable. Whether you are a creditor seeking to secure your rights or a shipowner facing detention, the involvement of a law firm with expertise in this area is crucial. For an in-depth analysis and a strategy tailored to your situation, contact our team of lawyers.maritime and enforcement lawyers.
Sources
- Brussels Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships
- Transport Code, in particular articles L. 5114-21 and L. 5114-22, and R. 5114-15 to R. 5114-19
- Code des procédures civiles d'exécution, in particular articles L. 511-1 et seq. and R. 511-1 et seq.
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