Sea, river and air transport rely on assets of considerable financial value that cross the borders of every country on a daily basis. legal order. When a commercial dispute arises or a debt remains unpaid, it is very tempting for the creditor to seize these assets - merchant ships, inland waterway vessels or aircraft. However, immobilising such a work tool cannot be improvised in the same way as seizing a land vehicle. ordinary. These procedures are governed by a complex system at the crossroads of domestic law, the Transport Code and international conventions. Our firm frequently observes that economic players, whether creditors or debtors, find it difficult to navigate in these murky waters, where a procedural error can render the distrainor liable for abuse of the right of recovery. right to seize.
The special legal status of ships, boats and aircraft: a hybrid nature and its implications
To grasp the complexity of seizures in this area, it is first necessary to understand the unique nature of these assets. They escape the summary classifications of the Civil Code because of their special status, oscillating between movable and immovable property.
Classification and specific features: between movable and immovable property
Legally, a ship, river boat or aircraft is an asset. furniture by nature: it moves and carries passengers or freight. However, because of their economic importance, the law applies a hybrid regime to them, borrowing from them features that are specific to immovable property. They have an identity, a nationality and a home port, and must be the subject of a "registration". registration on a register public.
As in the case of a property, this registration makes it possible to constitute a mortgage or a marine mortgage without physical dispossession. This is a safety major problem. In addition to the vessel itself, certain essential accessories such as fuel are subject to dedicated procedures. The seizure of bunkers is a perfect illustration of this complexity: although the fuel is physically on board the vessel, it may belong to the charterer and not to the owner. shipowner, This requires a detailed analysis before any action is taken, so as not to seize the good of a situation. non-debtor owner.
Derogations from ordinary seizure law: why a special regime?
The ordinary law of civil enforcement procedures, designed for traditional movable property, is proving ill-suited to the economic reality of international transport. The aim of a seizure is to secure a debt, but blocking a ship ready to set sail for the high seas or a plane on the tarmac generates devastating operating costs. What's more, the extreme mobility of these assets creates a permanent risk of leakage.
This is why the legislator and international conventions have established regimes under ordinary law. This particularism is expressed through the specific features for recording inland waterway vessels, These are often subject to a hybrid regime between river law and ordinary law. Specialist lawyers will often use expert documentation, such as that published by Dalloz, to refine its procedural strategy with regard to these derogations.
Legal grounds for special seizures: a complex framework between domestic and international law
Those working in this field must constantly coordinate French legislation and international treaties, the application of which often depends on the flag of the ship or the nationality of the parties involved.
Sources of seizure law in France: Transport Code and specific codes
In domestic law, the subject has been the subject of a major codification exercise. The Transport Code now contains most of the legislative provisions concerning the seizure of ships. Historically, the decree of 27 October 1967 has long provided a structure for the subject and remains a reference for understanding the spirit of current legislation, even though many provisions have been codified. For river boats, the Code du domaine public fluvial et de la navigation intérieure remains relevant. These texts define the substantive and formal conditions: the competence from judge, The terms of service by the court commissioner (formerly a bailiff), and the liabilities incurred.
Since the recodification, each article of the Transport Code should be read carefully, particularly those from the Chapter III relating to precautionary and enforcement measures. In addition, the reform of securities law has had an impact on the’mortgage and registration.
The influence of international conventions: harmonisation and specific features
Given the international nature of transport, domestic law often takes a back seat to diplomatic conventions, the fruit of the efforts of the international community.’unification of maritime law undertaken after the Second World War. For ships, the Brussels of 1952 (or 1952 Arrest Convention for Anglo-Saxon practitioners) is the cornerstone. It lists exhaustively the cases in which a provisional arrest is possible on a vessel flying the flag of an Contracting State.
The influence of international conventions is decisive in defining the nature of the maritime claim (or maritime link at English law). Without this precise qualification (damage, assistance, transport contracts, etc.), seize the vessel of a signatory state is impossible. For aircraft, the law of the’civil aviation is marked by the Rome Convention of 1933 and the Geneva Convention of 1948, which are essential for the recognition of rights over aircraft.
Relationship between special law and ordinary law: principle and subsidiarity
Despite the existence of these specific texts, the Code of civil procedure and the Code of Civil Enforcement Procedures are never far away. They apply in a subsidiary manner. For example, the general rules on home of the debtor or the procedural time limits apply, unless a special provision states otherwise. This relationship is a source of dispute, particularly when it comes to determining the judge or the place of seizure.
Precautionary attachment and execution: an overview of the procedures and the issues involved
It is essential to distinguish between the urgency of conservation and the purpose of sale. The legal strategies to be deployed are radically different depending on the objective pursued.
The fundamental distinction between precautionary seizure and enforcement seizure
It is essential to master the distinction between protective seizure and execution seizure. La precautionary seizure of the vessel is a surprise measure. It aims to immobilise the property to prevent the debtor from organising his insolvency. It can be applied quickly, often on simple request to judge, if the claim appears to be founded in principle. It is a safety provisional court order.
Seizure and execution is the final stage. It occurs when the distraining creditor has a title enforceable (a final judgment, for example) and wishes to obtain the payment. It often begins with a summons to pay signified by act by a bailiff. This inevitably leads to the forced sale of the property to pay off creditors.
Immobilising seized assets: an economic cost and conflicting interests
Seizing assets is one thing, managing the immobilisation is another. A ship in dock or a plane on the ground is expensive. The outcome of the forced sale leads to the crucial phase of distribution and allocation of fundsor prize distribution. The order of creditors is decisive: the privilege (such as crew salaries) often takes precedence over the’mortgage, This leaves little room for unsecured creditors. The procedure involves drawing up a minutes (or seizure report), describing the condition of the property, which will be followed by a ad legal and poster to prepare for the auction.
Legal news 2022-2024: the constant evolution of seizure regimes
Seizure law is not set in stone. It evolves in line with reforms and court rulings, as regularly reported in specialist journals such as Dalloz.
Recent legislative reforms and decrees: impact on procedure and security interests
The recent period has been marked by a modernisation drive. A new decree in particular had an impact on the codification of rules relating to aircraft in the Transport Code (Decree no. 2023-1008 of 31 October 2023). This reform has clarified the procedures for safety and’mortgage on aircraft. We should also note the impact of the 2021 ordinance reforming the law on securities, which modernises the system of non-possessory pledges and the’registration rights.
Le project of the law aimed at simplifying economic life continues to influence these matters. From now on, the transplant of the commercial court plays a central role in the publication of deeds via the register movable securities.
Notable case law and recent trends: insights into key skills and concepts
The courts, in particular the Cour de cassation (commercial and civil chambers), have Civ. 2), set out the contours of these procedures. Recent case law has clarified the jurisdiction of the enforcement judge (JEX). A decision confirms that the judge of enforcement has sole authority to authorise a release or rule on the jurisdiction on the merits on the seizure of foreign aircraft.
Similarly, the concept of immunity from execution of’Status is strictly assessed. Judges check whether the vessel is assigned to a public or commercial activity. A stop 2024 was a reminder of the importance of this distinction for validating or not the’authorisation input.
Challenges and prospects: towards standardisation or increased specialisation?
The future of these procedures oscillates between the desire to unify the international law and the need to respect the technical nature of each mode of transport (air, sea, river).
The challenges of codification and international harmonisation
Harmonisation remains a difficult ideal, although the uniform law (like the’Uniform Act organizing simplified procedures under OHADA law) is leading the way in some regions. In Europe, disparities persist. A ship may be seizable in France but untouchable in the United Kingdom if the States have not ratified the same conventions. The interpretation of concepts such as «sister-ship» varies between the continental law and Common Law.
Reflections on persistent particularities and future developments
The concepts of «related ships» or the lifting of the corporate veil to capture the assets of shell companies remain legal battlegrounds. All project The reform will have to reconcile the speed required by trade with the protection of the environment. real right of the owner. Given the technical nature of these schemes special, our firm offers a specialised support for maritime and air seizures. We master every model and each version applicable legislation to secure your receivables.
Frequently asked questions
What is the legal difference between a ship and a boat?
The distinction is based on the navigational environment: a ship navigates the sea, while a boat navigates inland waters. This classification determines whether maritime or river law is applied, and therefore which law is applied. type from privilege ormortgage may encumber the property.
Can a foreign ship be seized in a French port?
Yes, if the vessel flies the flag of a Contracting State Under the 1952 Brussels Convention, protective seizure requires an allegation of a maritime claim. For the others, French law allows seizure for any claim, even if the owner is not domiciled in France.
What is a maritime claim?
This is a restrictive list defined by the 1952 Convention (damage, assistance, etc.), loan à la grosse, transport contracts, etc.). It is similar to the concept of privilege. Only these claims can be used to seize a vessel of a State party.
Which judge has jurisdiction to authorise a seizure?
The enforcement judge (JEX) of the judicial court is the natural judge. However, for a commercial claim, the President of the Commercial Court may be competent to grant the’authorisation before any trial. L’lawyer the creditor will have to choose the most appropriate route.
Does the seizure of a vessel automatically lead to its sale?
No. The seizure of property is only a guarantee measure (a "security"). safety provisional). To sell, you need a writ of execution and convert the measure into a seizure and execution, with the setting of a fixed price. price setting.
What are the risks of wrongful seizure?
If the judge considers that the seizure was unfounded, the creditor may be ordered to compensate the loss (operating losses), costs port charges, crew pay). The decision can be financially onerous.
If you are faced with a situation that requires a implementation on a maritime asset or aerial, or if your property is the subject of a measure that you are contesting (request for release, summary judgement, call), we invite you to contact our team. We have all the necessary’tool necessary to define the best strategy.
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