The law governing the seizure of a ship is one of the most unusual in existence. It lies at the crossroads of several legal approaches, making it a particularly technical area. For creditors seeking to recover their debts and for shipowners affected by the measure, it is essential to understand the inner workings of this system. The detention of a ship is never a trivial act: it paralyses a major economic tool and incurs significant costs. Our firm, with its dedicated enforcement practice, is regularly involved in these complex procedures, which require a detailed understanding of the disparate rules and international issues at stake. Navigating the intricacies of solent avocats' expertise in ship seizures is essential to secure your rights.
Introduction: the special legal status of ships
To grasp the complexity of the seizure regime, it is first necessary to understand the very nature of the object seized. Vessels are not like other goods; they fall outside the traditional classifications of civil law, which has led the legislator to create a tailor-made status for them, particularly in terms of enforcement procedures.
The ship, a hybrid asset (movable and immovable)
Article 531 of the Civil Code classifies ships as movable property. This classification seems logical: by nature, a ship is mobile. However, this apparent simplicity masks a far more nuanced legal reality. Because of their economic importance and value, ships are subject to a registration regime that brings them considerably closer to immovable property. This duality is clearly apparent in the rules governing the publication of rights in rem, such as sale, or the creation of security interests, foremost among which is the maritime mortgage. This hybrid status, halfway between movable and immovable property, justifies a special regime for their seizure, an idea already outlined in the Civil Code, which states that their seizure may be subject to "special forms".
The specificity of the texts governing the seizure of ships (1967 Act, 1967 Decree and their non-integration into the Commercial Code)
The special nature of ships has led to the enactment of texts devoted exclusively to them. French law on the seizure of ships is based on old foundations, principally law no. 67-5 of 3 January 1967 and its implementing decree no. 67-967 of 27 October 1967. Although these texts form the basis of positive law, they have a notable historical peculiarity: they have never been incorporated into the Commercial Code, even during the major waves of codification. They have now been partly incorporated into the Transport Code, but their original spirit remains. Moreover, the major reform of civil enforcement procedures carried out by the Act of 9 July 1991 and its Decree of 1992 carefully avoided touching this specific area of jurisdiction. The 1967 regime therefore remains the applicable law, a special law that derogates in many respects from the ordinary law on seizures.
The relationship between domestic law and international conventions
The international dimension of maritime activity has made it essential to develop unified rules that transcend national borders. The seizure of a ship in a French port thus involves constant interaction between domestic law and a body of international conventions, creating a multi-layered legal landscape.
The 1952 Brussels Convention and the new 1999 Convention: contributions and differences
The main international instrument ratified by France is the Brussels Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships. This convention is of considerable practical importance, as it applies whenever a vessel flying the flag of a contracting state is seized in France. It introduces its own logic, notably by limiting the possibility of attachment to "maritime claims", of which it draws up an exhaustive list. This approach differs fundamentally from that of French law, which authorises attachment for any claim, whether maritime or land-based. A new convention was adopted in Geneva on 12 March 1999, with the aim of modernising and broadening the scope of attachment. Although it has not yet entered into force in a large number of major maritime countries, it introduces some notable innovations, such as extending the list of maritime claims (including, for example, disputes relating to the sale of a ship) and extending the jurisdiction of the court at the place of attachment (the *forum arresti*). The existence of these two texts, and the potential future entry into force of the second, requires practitioners to be constantly vigilant as to the applicable law depending on the flag of the vessel and the nature of the claim. This complexity is a good illustration of why the specific features of the precautionary seizure of ships and the seizure and execution of ships are areas that need to be analysed on a case-by-case basis.
The subsidiary role of common law seizures in maritime law
Despite the existence of this body of special rules, whether domestic or international, the ordinary law of civil enforcement procedures has not been completely discarded. It retains a subsidiary role. In practical terms, this means that the provisions of the Code of Civil Enforcement Procedures apply to all matters not covered by maritime legislation. This subsidiary application is particularly important in the case of protective attachment, a procedure for which the 1967 decree is surprisingly laconic given its practical importance. Ordinary law therefore acts as a procedural safety net, filling in the gaps left by special law. For example, it sets the one-month time limit for bringing an action on the merits after the seizure, failing which the measure lapses.
Reconciling interests: distraining creditor and shipowner
Like any compulsory execution measure, the seizure of a vessel brings into play powerful and contradictory interests. On the one hand, the creditor's legitimate right to obtain payment of what is owed to him. On the other, the shipowner's right of ownership and entrepreneurial freedom, whose working tool is paralysed.
Protection of the economic interests linked to the operation of the vessel
The legal regime governing the seizure of ships is based on a search for balance. Seizure is a formidable means of exerting pressure on a creditor. By detaining a ship, you are not only neutralising an asset; you are stopping an economic activity, interrupting transport contracts and generating detention costs (port charges, crew salaries) that can quickly become exorbitant. The effectiveness of the measure for the creditor is therefore proportional to the damage it causes to the debtor. The law takes this economic reality into account. Mechanisms such as the possibility for the judge to authorise the ship to make one or more voyages, subject to the provision of sufficient security, are designed precisely to allow commercial operations to continue while protecting the creditor's interests. Similarly, the possibility of releasing the vessel in exchange for a bank guarantee or other security enables the vessel to be freed and the physical detention to be transformed into a financial guarantee.
What is excluded from the specific scope of ship seizures
The derogation for the seizure of ships is interpreted strictly. In principle, everything that does not constitute the ship itself or its direct accessories is subject to the ordinary law on seizures of movable property. This distinction is fundamental in practice.
Seizure of goods and freight claims (with references to existing articles)
Seizure only concerns the container, not the contents. The goods carried on board, which belong to third parties (the shippers), are totally excluded from the scope of the vessel's seizure. Under no circumstances can a creditor of the shipowner have the cargo seized in order to recover its debt. The seizure of goods is governed by the ordinary law governing the seizure of movable property and raises its own problems, particularly when the goods are in transit. Similarly, the seizure of freight claims, i.e. the sums owed to the shipowner in return for transport, is governed by the ordinary law procedures for the seizure of claims (protective seizure of claims and attachment for payment).
The special case of seizing bunkers (with reference to existing article)
The question of the legal nature of bunkers (the ship's fuel) has given rise to considerable debate in the case law. Is it a simple 'consumable' that can be detached from the ship and therefore seized under ordinary law, or is it an accessory that is essential to its operation and therefore subject to the special regime? The Court of Cassation ruled in favour of the second option. It held that the bunkers, being an essential part of the ship's propulsion, should be considered an accessory of the ship. Consequently, their seizure must follow the specific regime for the seizure of ships. This solution is logical: detaining the bunkers is, in effect, tantamount to detaining the ship itself. It was therefore consistent to subject this measure to the same rules, as explained in detail in our article on the specific legal regime for the seizure of bunkers.
Conclusion: a complex system and its practical challenges
Ship arrest law is a technical field, shaped by the history and specific needs of maritime trade. Its dual nature, both national and international, its hybrid legal status and the considerable economic stakes it covers make it a subject that requires specialist expertise. Whether you are a creditor seeking to secure your rights or a shipowner faced with a detention order, a perfect understanding of this legal framework is essential if you are to defend your interests effectively. The assistance of a lawyer skilled in this field is not a luxury, but a necessity if you are to navigate these proceedings with peace of mind. For an in-depth analysis of your situation and tailored advice, contact our team of lawyers.
Sources
- Law no. 67-5 of 3 January 1967 on the status of ships and other seagoing vessels
- Decree no. 67-967 of 27 October 1967 on the status of ships and other sea-going vessels
- Brussels Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships
- Transport Code
- Code of civil enforcement procedures
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