Lawyer - Seizure of a vessel

The seizure of a vessel, a measure with major financial and operational consequences, requires specialised legal expertise, whether you are a creditor seeking to recover a debt or a shipowner faced with the immobilisation of your vessel.

Solent Avocats, a law firm based in Marseille and operating all along the coast, including ports such as Toulon, offers you strategic support. We implement protective seizure and execution procedures for creditors, analysing the best way to recover your funds. For shipowners, we provide a reactive defence, from contesting the seizure to negotiating its release.

With recognised expertise in commercial law, insolvency proceedings, banking law, enforcement and maritime transport, our firm rigorously analyses every article of the Maritime Code and the Transport Code relevant to your case. Favouring a pragmatic approach, we explore all solutions, including arbitration, to resolve disputes, convinced that "a bad agreement is better than a long trial". Our commitment also extends to sharing our knowledge, in particular through QUALIOPI-certified training courses.

Understanding the seizure of ships: a lever for the creditor, a risk for the debtor

The seizure of a vessel is a legal procedure. It enables a creditor to seize a vessel belonging to its debtor. The aim is either to secure payment of a debt or to recover it by selling the vessel. It is crucial to distinguish between two different mechanisms.

Attachment is one of the emergency protective measures. It aims to immobilise the vessel in a port, preventing it from leaving the port. This is done while the creditor obtains a writ of execution or while the dispute on the merits has been settled. The aim is often to exert pressure and secure a claim that "appears to be well-founded in principle".

Seizure and execution is a form of enforcement. It enables the seized vessel to be sold in order to pay off the creditor(s). It can only be used if the creditor has a writ of execution. This document must establish a liquid and payable claim against the shipowner. The effect of the seizure is then drastic.

The economic stakes are considerable. For the creditor, seizure of the vessel, a valuable asset and often the debtor's only major asset, can represent the most effective means of recovery, sometimes for a substantial sum of money. For the owner or operator, the consequences can be devastating. There is a risk of costly immobilisation of the vessel, leading to operating losses, and in the case of an execution seizure, the permanent loss of the vessel.

Prerequisites for seizing a vessel: what you need to know

The seizure of a vessel is subject to strict conditions. These conditions concern both the claim and the vessel itself, which is a movable asset of a special nature.

The need for a claim :

• For an execution order to be issued, the creditor must hold a writ of execution. This document establishes a liquid and due debt, a sum of money owed. It may be a French judgement (a court decision), a recognised court decision from another EU Member State, or a notarial deed. The question of whether a simple provisional injunction is sufficient to form the basis of an enforcement order has been debated, with the Court of Cassation having had to rule on a number of cases.

• To carry out a protective attachment, the requirements are less strict. Under French law, the creditor must justify a claim that "appears to be founded in principle". If the 1952 Brussels Convention is applicable (vessel flying the flag of a contracting country), the creditor must allege a "maritime claim". It is not necessary to prove the existence of such a claim at this stage.

The vessel must belong to the debtor (in principle):

The basic rule is that only a vessel owned by the debtor can be seized. However, there are some exceptions: creditors with a right of resale (maritime mortgage) can seize the vessel even after a change of ownership. The theory of appearance may come into play in exceptional cases. The complexity of operating structures (e.g. single ship companies) can make it difficult to identify the real owner and affect seizability for the operator's debts, which can lead to specific litigation.

Unseizable ships: limits to the creditor's action

Some ships are protected:

• State ships and immunities: French State ships cannot be seized. For foreign flags, the Brussels Convention of 1926 and international law protect warships and those assigned to a non-commercial public service.

• Vessels assigned to the personal exercise of a professional activity: a vessel may be exempt from seizure if it is a necessary work tool (small-scale fisherman). This protection of the owner does not generally apply to large commercial vessels and there are exceptions (high value of the vessel).

The foreclosure procedure: key stages and points to watch out for

The seizure and execution of a vessel is a formal and rigorous legal procedure. There are a number of mandatory stages in the process.

The summons to pay: the first formal act

Before any seizure, the distrainer serves the shipowner with a summons to pay. This document, issued by a bailiff, mentions the enforcement order, the breakdown of the sums and requires the debtor to pay within 24 hours. If the debtor fails to pay, the sale of the vessel may be pursued. The summons expires after ten days if the seizure is not initiated.

The seizure and enforcement report: the act of apprehension

If payment is not made, the bailiff will go on board to draw up a seizure and execution report. This document must contain compulsory information (identification of the vessel, creditor, title, owner, description of fittings and bunkers). Failure to include any essential information may render the document null and void. The bailiff also establishes a custodian for the vessel.

Publicity measures: informing third parties and the authorities

Several advertising measures are required:

• Notification of the seizure report to the port services to prevent the vessel from leaving the port.
• Notification to the consul if the flag is from another country.
• Notification to the shipowner (copy of the official report) within three days, with a summons for sale before the execution judge in the place of seizure.
• Registration of the seizure deed in the register of movable securities. This registration makes the seizure effective against third parties and the building unavailable.
• Notification of seizure to registered creditors.

The forced sale of the vessel: the end of the procedure

The execution judge, within the judicial court (formerly the tribunal de grande instance), organises the public sale. He or she sets the upset price, the conditions of sale and draws up the specifications. The sale of the vessel is advertised. The auction judgement confirms the sale. The seizure culminates in the transfer of ownership. The successful bidder must deposit the price. If he fails to do so, a re-bidding procedure may be initiated. The auction transfers ownership and, in principle, removes all liens and mortgages. It also terminates current contracts (the captain's employment contract may be affected).

Price distribution: paying off creditors

The sale price is distributed differently. If there is more than one creditor, a procedure is set up by the enforcement judge. The payment order respects the ranking of claims (maritime liens, mortgages, etc.), which may be the subject of a dispute. The provisions of articles L.5114 and R.5114 of the Transport Code, among others, govern this system.

Ship arrest: a strategic preventive measure

Less radical than execution, protective attachment is a tool frequently used in maritime law.

Objective: immobilise to guarantee

The main purpose of a precautionary arrest is to prevent a vessel from leaving a port. It makes it unavailable. The purpose of detaining the vessel is to secure a debt. It is also a powerful means of exerting pressure. It is often a prerequisite for execution.

Specific conditions (1952 Brussels Convention vs. French law) :

Conditions vary:

• If the 1952 Brussels Convention applies, the creditor must allege a "maritime claim". The Convention lists these claims (damage caused by the ship, assistance at sea, contracts of use, bunker supplies, wages, mortgages, etc.).

• Under French law, it is sufficient for the claim to "appear to be founded in principle". The creditor does not have to prove that there are circumstances threatening recovery or that the claim is urgent.

A writ of execution is not required for authorisation of seizure.

Authorisation procedure :

Attachment requires prior authorisation from the court. Even if the creditor already has a writ of execution. In France, it is issued by order on request of the enforcement judge or the president of the commercial court, subject to certain conditions. A copy of the court order is essential.

Release of seizure :

The owner can apply for the property to be released in summary proceedings. This is granted if the seizure is unfounded or if the debtor provides sufficient security (bank guarantee, deposit).

Obligation to bring an action on the merits :

If the creditor does not have an enforceable title, he must, under French law, initiate proceedings to obtain one within one month of the execution of the measure. Otherwise, the attachment lapses. This rule does not apply if the attachment is governed by the Brussels Convention.

Defending the owner against ship seizure

When faced with the seizure of a vessel, the owner has several legal means of defence. The right to dispute is fundamental.

Challenging the validity of the seizure :

The owner can contest the seizure on several grounds:

• Non-compliance with substantive conditions:Unfounded claim. Claim not liquid or due (for an execution attachment). Vessel does not belong to the debtor. Vessel unseizable.

• Procedural irregularities:Defects affecting the deeds (summons, seizure report, publicity). Opposition to the seizure can be based on these points.

Obtaining a release :

The release of a protective attachment may be obtained: By proving that it is unfounded. Or by providing a substitute guarantee. This allows the building to be released.

Travel authorisation :

Exceptionally, the judge may authorise a seized vessel to make one or more voyages. This is subject to strict conditions and a guarantee.

Action for wrongful seizure :

If a seizure is carried out in an abusive manner by the distrainor (malicious intent, carelessness), the owner may bring an action for damages. The aim is to obtain compensation for the loss suffered. Legal recourse is then necessary.

Solent Avocats' expertise in ship seizures

The seizure of ships is a technical matter. Solent Avocats puts its expertise at your service to protect your interests.

In-depth knowledge of the national and international legal framework:

Our firm is fully conversant with the applicable texts: the Transport Code, the Code of Civil Enforcement Procedures (and in particular each relevant article such as article L5114 or article R5114), and international conventions. This knowledge enables us to analyse the applicability of the various regimes.

A strategic approach for creditors :

We audit your debt and the debtor's assets. We choose the most appropriate legal procedure. We ensure diligent implementation to maximise the chances of recovering the money owed. We manage inter-creditor settlements.

A responsive and effective defence for shipowners:

In the event of vessel seizure, our responsiveness is an asset. We analyse the reasons for the measure and the potential defects. We take action to have the vessel released or challenged. We negotiate alternative guarantees. We support you in the event of a seizure that is deemed to be abusive. Good insurance is essential to cover certain risks, but it does not cover everything.

Managing complex issues :

Our practice includes seizures of ships under the flags of different countries. We deal with complex ownership structures (management of single ship companies). We assist you with expert appraisals or judicial sales before the competent court. We act for both commercial vessels and yachts.