The precautionary seizure of a vessel is a formidable procedure for creditors seeking to secure their claim. It results in the immobilisation of a valuable asset, often at the heart of the owner's economic activity. However, the international nature of maritime transport creates unique legal complexities. Determining the law applicable to such a measure is a fundamental step that conditions the validity and effectiveness of the entire procedure. This article takes a closer look at the conflict-of-laws and conflict-of-jurisdiction rules governing this area, based in particular on the provisions of the 1952 Brussels Convention. A good understanding of these mechanisms is essential for any economic player faced with a maritime dispute. For a general presentation, please consult our complete guide to the seizure of ships. Our law firm, with its experience in enforcement proceedings and seizure of shipssupports its customers in implementing these complex procedures.
Introduction to the law applicable to the arrest of ships
The detention of a ship in a French port as security for a debt immediately raises the question of the applicable law. A ship is a particular kind of movable asset, a point of contact between potentially different legal systems: that of its flag, that of its port of seizure, that of the residence of the parties or that of the contract giving rise to the debt. This situation has led to the development of specific rules to organise the matter.
International legal framework (1952 Brussels Convention, French law)
In France, provisional arrest of ships is governed by two sources. On the one hand, domestic law, mainly codified in Articles L. 5114-21 and L. 5114-22 of the Transport Code, provides a general framework. It allows any person whose claim appears to be founded in principle to obtain authorisation to seize a ship. On the other hand, the International Convention for the Unification of Certain Rules concerning the Arrest of Seagoing Ships, signed in Brussels on 10 May 1952 and ratified by France, plays a central role. By virtue of the hierarchy of norms, this convention takes precedence over domestic law when the conditions for its application are met. It establishes a specific regime, in particular by limiting attachment to "maritime claims", which it lists exhaustively.
Distinction between precautionary seizure and execution seizure
It is essential not to confuse a protective attachment with an execution attachment. A protective attachment is a provisional measure. Its purpose is to guarantee payment of a debt whose existence has not yet been established by a writ of execution. It aims to immobilise the vessel in order to put pressure on the debtor and force him to pay or provide a guarantee. Seizure and execution, on the other hand, is a genuine means of enforcement. It can only be initiated on the basis of a writ of execution establishing a claim that is certain, liquid and due. The aim is no longer temporary immobilisation but the forced sale of the vessel to pay the creditor the price obtained. This latter procedure is much rarer in practice, as the seizure is the preferred tool of maritime creditors. These two procedures are governed by different legal systems that need to be controlled.
Scope of the 1952 Brussels Convention
The application of the 1952 Brussels Convention depends mainly on the flag of the vessel seized. The text makes a distinction according to whether or not the vessel flies the flag of a State party to the Convention, each situation giving rise to different rights for the seizing creditor.
Vessels flying the flag of a contracting state and exceptions
The principle set out in Article 8(1) of the Convention is clear: the Convention applies to any attachment carried out in a Contracting State (such as France) on a vessel flying the flag of another Contracting State. In this case, the provisions of the Convention, particularly those relating to maritime claims, are mandatory and override French domestic law. The residence of the creditor or debtor is irrelevant. There is, however, one notable exception to this principle, dictated by logic: if the situation is purely internal, i.e. if the attachment takes place in France, on a ship flying the French flag, and at the request of a creditor residing in France, the Convention disappears in favour of French law. The Convention also allows a Contracting State to refuse to apply its provisions to a national of a non-Contracting State, but France has never made use of this possibility, so the court cannot invoke it on its own initiative.
Vessels flying the flag of a non-contracting state
When the arrest is carried out in France on a ship flying the flag of a State that is not party to the Convention (for example, the United States or Japan), Article 8(2) offers the creditor a strategic option. He can choose to base his claim either on international law or on domestic law. If he chooses the first route, he will have to allege one of the 17 maritime claims listed exhaustively in Article 1 of the Convention. If he opts for the second, he will be able to rely on any claim, even a non-maritime one, provided that it appears to be "founded in principle" within the meaning of article L. 5114-22 of the Transport Code. This flexibility represents a considerable advantage for creditors whose claims do not fall within the restrictive list of maritime claims.
Case law interpretations and scope of the Convention
The exact scope of Article 8(2) has given rise to much debate in the case law. The question was whether this text merely extended the list of claims that could justify an attachment (by adding those under domestic law) or whether it extended the application of all the substantive rules of the Convention (in particular on attachable ships) to the attachment of a ship from a non-contracting State. The Court of Cassation has had fluctuating interpretations. In the "Mediterranea" judgment of 1999, it seemed to adopt a restrictive interpretation, limiting the application of the Convention. However, in *Sargasso* in 2000, it took a broader view, favouring application of the entire Convention. This latter position now seems to prevail, as it avoids creating a more favourable regime for ships flying the flags of non-contracting states, which could then more easily escape seizure. This interpretation is also supported by the spirit of the new Geneva Convention of 1999 (not yet widely ratified), which provides for its application to any ship, whether or not it flies the flag of a State Party.
Conflicts of laws and jurisdictions regarding the arrest of ships
The inherent international nature of maritime activities places protective seizures at the crossroads of multiple conflicts of law and jurisdiction. The 1952 Brussels Convention, while laying down substantive rules, does not settle everything and makes several references to national laws, making it more difficult to determine the applicable law at each stage of the procedure. These issues are at the heart of the problem of international aspects of provisional measures.
Law applicable to the proceedings (lex fori)
The rule here is simple and clearly set out in Article 6 of the Convention: the procedural rules relating to the attachment, to obtaining judicial authorisation and to any incidents that may arise therefrom, are governed by the law of the place where the attachment is effected or requested. This is the principle of *lex fori* (the law of the forum, i.e. the court seised). Thus, a protective seizure carried out in a French port will be subject to French law for its procedural implementation, and more specifically to the provisions of the Code of Civil Enforcement Procedures and the Transport Code.
Liability of the distrainor (lex loci / lex fori)
Arresting a vessel is not a trivial matter. If the seizure turns out to be unfounded or abusive, it can cause considerable damage to the shipowner. The question of the law applicable to the liability of the distraining creditor is therefore of paramount importance. The Brussels Convention answers this question by designating, once again, the law of the place where the attachment was effected or requested (*lex loci*). It is therefore French law that will determine the conditions under which the creditor may be held liable for an attachment deemed to be improper in a French port, in particular on the grounds of negligence or tort.
Jurisdiction of the court for the substantive action (forum arresti)
The protective attachment is only a provisional measure. The creditor must then bring an action on the merits to obtain a writ of execution. Where should this action be brought? The 1952 Convention recognises the jurisdiction of the courts of the State where the seizure took place (the "forum arresti" principle), but only if the domestic law of that State grants them such jurisdiction. If this is not the case, Article 7 of the Convention lists six limited cases in which the court of the place where the seizure took place will nevertheless have jurisdiction. These cases include the claimant's residence in the State of attachment, the place where the claim arose, a collision, assistance or a claim secured by a mortgage. Apart from these cases, French case law tends to reject the general jurisdiction of the *forum arresti*, requiring the international jurisdiction of French courts to be based on other connecting factors.
Inapplicability of the 1952 Brussels Convention and national laws
Where the 1952 Brussels Convention is not intended to apply, for example in a purely national situation, the judge must turn to the conflict of laws rules to identify the applicable law. The complexity remains, as several legal systems may potentially govern the seizure.
Role of the lex fori and the lex navis
In the absence of an applicable international convention, two main bodies of rules compete to govern the substantive conditions of protective attachment: the *lex fori* (law of the court seised) and the *lex navis* (law of the flag of the vessel). The *lex causae*, i.e. the law applicable to the claim itself (for example, the law of the contract), is not generally used to govern the attachment. French case law does not establish an absolute principle in this area. While the attachment procedure remains subject to the *lex fori*, the French court may, for the substantive conditions, take account of the *lex navis*, in particular because of the close link between the law of attachment and the law of maritime liens, which is often governed by the law of the flag. A case-by-case analysis by an expert lawyer is therefore crucial in devising the most appropriate strategy.
Determining the law applicable to a ship arrest is a technical exercise that requires a detailed analysis of the facts and an in-depth knowledge of international conventions and conflict of laws rules. Our firm is at your disposal to analyse your situation and defend your interests. Please do not hesitate to contact our lawyers specialising in ship seizures for tailor-made support.
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, L. 5114-22, R. 5114-15 et seq.)
- Code of civil enforcement procedures
- Civil Code
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