I. Introduction to the arrest of ships
Preventive seizure of a vessel is a procedure that allows a vessel to be temporarily detained in port. It is a preventive measure, not a definitive sanction. Its purpose is to guarantee payment of a debt by preventing the debtor from removing his pledge.
In the maritime world, this procedure plays a central role. Ships are constantly on the move between jurisdictions. This mobility complicates debt recovery. Without a means of rapid immobilisation, creditors would lose any chance of obtaining payment.
The conservatory seizure differs from the execution seizure. It does not seek to sell the vessel but to put pressure on the debtor. The former immobilises the vessel, while the latter transfers ownership. In practice, precautionary seizures are common, while execution seizures are rare.
II. International legal regime
The Brussels Convention of 10 May 1952 is the fundamental text on attachment. It harmonises the rules in this area between the signatory states. It lays down the conditions for seizure and lists the maritime claims justifying such a procedure.
Its scope covers any seizure carried out in a Contracting State on a vessel flying the flag of another Contracting State. It sometimes applies to ships from non-Contracting States seized in a Member State.
More than 70 countries have ratified this convention, including France and most of the maritime nations. However, major states such as the United States and Japan have not yet signed.
The Geneva Convention of 12 March 1999 was intended to replace the 1952 Convention. It extends the list of maritime claims and clarifies certain procedures. Despite its entry into force, it has only been ratified by a few countries, limiting its real impact.
III. Conditions for precautionary seizure
The "maritime claim" is at the heart of the 1952 Convention. Article 1 contains an exhaustive list of claims that can be attached, such as damage caused by a ship, crew wages or supplies.
This convention considerably simplifies the creditor's task. All they have to do is allege the existence of a maritime claim, without having to prove that it is certain or due. This simple allegation justifies the protective measure.
There must be a link between the claim and the vessel seized. The creditor may seize the vessel to which the claim relates. In some cases, he may also seize other vessels belonging to the same owner. This right does not extend to claims relating to disputed ownership or maritime mortgages.
IV. French legal system
French law skilfully combines international and domestic rules. For ships flying the flag of a Contracting State, the 1952 Convention applies in full. For others, domestic law takes over.
Articles L. 5114-20 et seq. of the French Transport Code set out the rules for precautionary seizures under French law. These provisions are largely based on the principles of the law of 3 January 1967 and the decree of 27 October 1967.
French domestic law is more flexible than the Convention. It allows seizure of any claim that "appears to be well-founded in principle", without restricting it to maritime claims.
Jurisdiction varies according to the basis of the attachment. For maritime claims covered by the Convention, the President of the Commercial Court has jurisdiction. For other claims, it is the enforcement judge who intervenes. This duality sometimes complicates the procedure.
V. Procedure and implementation
Prior judicial authorisation is required. The creditor submits an application to the competent court. This application must state the alleged claim and the vessel concerned. The judge will rule quickly, without hearing the debtor.
Once authorisation has been obtained, a bailiff notifies the ship's captain of the seizure. He also notifies the port authorities, who then prohibit the vessel's departure. This crucial phase must be completed before the ship leaves port.
A custodian is appointed, often the captain himself. The custodian's role is to ensure that the vessel is preserved during the seizure. He or she may be held liable in the event of damage or unlawful departure.
The seizure is publicised by entry in the special register kept by customs or the registry of the commercial court. This formality makes the seizure enforceable against third parties and prevents any transfer of the vessel.
VI. Effects of seizure
The main effect is the immediate detention of the vessel. It can no longer leave port without judicial authorisation. This constraint creates strong pressure on the shipowner, who incurs considerable detention costs.
This measure is not final. The creditor must initiate proceedings on the merits within one month. Failing this, the seizure lapses. This period guarantees a balance between the interests of the creditor and the rights of the debtor.
Alternative solutions exist. The judge may authorise the vessel's departure subject to a financial guarantee. This option, which is frequently used in practice, allows the vessel to continue operating while securing the debt. The guarantee often takes the form of a bank guarantee or a letter of undertaking from a P&I Club.
The sequestration of ships remains an essential tool in maritime trade. Its dual role as both a pressure measure and a payment guarantee makes it a balanced mechanism. It protects creditors without totally paralysing maritime operations.
Sources
- Brussels Convention of 10 May 1952
- Transport Code, articles L.5114-20 et seq.
- Judgment of the Court of Cassation, Commercial Division, 13 September 2023, No. 20-21.546
- Decree no. 2016-1893 of 28 December 2016
- Court of Cassation case law, in particular Com. 5 October 2010, no. 09-13.092
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