The detention of a vessel by means of a protective attachment is one of the most effective weapons available to a creditor. By nailing a ship to the quayside, the economic activity of its operator is paralysed, creating a powerful lever for obtaining payment of a debt. However, this procedure is highly complex, as it lies at the crossroads of national law and international conventions. Depending on whether the ship flies the flag of a State party to the 1952 Brussels Convention or not, the conditions for justifying the seizure differ radically. The success of such an approach depends entirely on the creditor's ability to base his action on the correct legal classification of his claim: is it a "maritime claim" in the strict sense of the Convention, or a "claim appearing to be founded in principle" in the more flexible terms of French law? This technical article is an extension of our comprehensive guide to precautionary seizure of shipsfocuses on these conditions relating to the claim, which must be mastered before any action can be taken. The assistance of a lawyer competent in ship seizure is therefore crucial in assessing the most appropriate strategy.
General principles governing the conditions of a claim under a ship arrest warrant
Before analysing the maritime nature of the claim in detail, it is essential to understand the principles that govern the very condition of the claim, a concept that departs from the usual requirements of the precautionary measures under ordinary law. Two regimes coexist and lay down different substantive conditions for authorising an attachment. On the one hand, there is international law embodied in the 1952 Brussels Convention, and on the other, French domestic law. This duality offers strategic options to the creditor, provided that the targeted vessel is eligible for the application of French law.
Requirements of the 1952 Brussels Convention (allegation of maritime claim)
Where the 1952 Convention applies, the condition is remarkably flexible. Article 1 of the Convention states that an "allegation" of a maritime claim is sufficient. The term is fundamental: the creditor does not have to prove the existence of his claim at this stage. It simply has to assert it. Case law has confirmed this literal interpretation, holding that the judge does not have to verify the "plausible" or "serious" nature of the alleged claim. As the Aix-en-Provence Court of Appeal emphasised, "It is sufficient for the creditor to 'allege' a claim, i.e. simply to assert that he is the holder of that claim, without any obligation to demonstrate even the likelihood or seriousness of the claim".. This easy access to the measure is offset by a very strict list of eligible claims.
Requirements of French law (claim appears to be well-founded in principle)
French law, codified in article L. 5114-22 of the Transport Code, is slightly more demanding. To authorise seizure, the judge must consider that the claim "appears to be founded in principle". This concept is halfway between a simple allegation and certain proof. The claim does not have to be irrefutably established, but it must be sufficiently plausible. The creditor must therefore provide the judge with evidence (contracts, invoices, formal notices, correspondence) that makes the claim credible and serious. A claim that appears to be purely uncertain or manifestly disputed may not satisfy this condition.
Absence of traditional conditions (certainty, liquidity, payability, urgency)
The two systems have one essential point in common, which constitutes a major departure from the ordinary law of enforcement. The claim justifying the seizure of a vessel need not be certain, liquid or due. This flexibility is explained by the very nature of the measure, which aims to "preserve" a right and not to enforce it by force. It is a rapid and provisional form of protection. Similarly, and contrary to popular belief, there is no requirement for urgency. This was clearly stated by the Court of Cassation in the case of Atlantic Triton (Cass. 1re civ., 18 Nov. 1986), ruling that the mobile nature of the vessel, which can leave port at any time, in itself constitutes a sufficient threat to justify recourse to seizure without it being necessary to prove an imminent danger to recovery.
The concept of a maritime claim under the 1952 Brussels Convention
Where the Brussels Convention is applicable, attachment is only possible to secure a "maritime claim". This concept is the cornerstone of the Convention system and its scope is very precisely defined. For a broader exploration of this concept, please see our article on the definition, types and privileges of maritime claims.
Exhaustive list of maritime claims (Article 1 of the Convention)
Article 1 of the 1952 Convention sets out a restrictive list of 17 categories of claims considered to be maritime. The maritime nature of a claim therefore depends exclusively on its cause, i.e. its origin. This list covers a wide range of situations relating to the operation of the ship. It includes, for example, claims relating to damage caused by the ship (collision or other), assistance and salvage, or those arising from contracts relating to the use or hire of the ship (charter party), the carriage of goods, the supply of products or equipment (such as bunkers), the construction or repair of the ship, and crew wages. Also included are claims relating to disputed ownership or co-ownership of the vessel, and claims secured by a maritime mortgage.
Case law illustrating maritime claims and their strict interpretation
The exhaustive nature of this list means that it must be interpreted strictly by the courts. If a claim does not fall neatly into one of the 17 categories, it cannot be classified as maritime within the meaning of the Convention. For example, the courts have consistently ruled that a claim arising from a contract for the sale of a ship is not a maritime claim (Cass. com., 9 May 1990). The same applies to a claim arising from a loan contract, even if the loan was intended to finance repairs. On the other hand, judges have sometimes adopted a broad interpretation of the terms used. For example, the notion of the crew's "wages" has been interpreted as a generic term covering all claims relating to the employment contract, including redundancy payments.
Partially maritime claims and link with the ship
An interesting question has been decided by the Court of Cassation: what happens if a claim is only partly maritime? In a decision of 3 February 1998 (Friday 13), it ruled that "protective attachment is possible for the whole, even if the claim alleged as the cause of the attachment is only partly maritime in nature". This is a pragmatic solution, given the indivisibility of the vessel. Furthermore, in order to be classified as maritime, the claim must have a direct link with the ship. It is this link that justifies the application of this derogatory regime. The claim must arise from the ownership, management or operation of the seagoing vessel.
The new claims introduced by the 1999 Geneva Convention
Although it has not yet been widely ratified by the Member States of the European Union, the Geneva Convention of 12 March 1999, which is intended to replace the 1952 Convention, has modernised and extended the list of maritime claims. In particular, it adds claims relating to damage caused to the environment, unpaid insurance premiums, brokerage commissions and disputes arising from a ship sale contract. This development shows that the new economic and ecological realities of maritime transport are being taken into account, and could influence the interpretation of existing texts in the future.
Non-maritime claims and their treatment under French law
The restrictive regime of the Brussels Convention may leave some creditors without a solution if their claim does not fall into any of the categories listed. This is where French law can offer an advantageous alternative, provided the circumstances allow its application.
Examples of non-maritime claims not covered by the 1952 Convention
To understand the scope of the distinction, it is useful to look at a few examples of claims that the courts refused to classify as maritime under the 1952 Convention. In addition to the claim arising from the sale of the ship, these include: non-payment of insurance premiums (before they were incorporated into the 1999 Convention), a claim arising from a simple bank loan agreement, a claim by a travel agency for a seat reservation, or a claim for breach of commercial relations with a shipping agent. For all these situations, if the 1952 Convention is the only one applicable (because the ship flies the flag of a Contracting State), attachment will be impossible.
The advantage of French law: seizure possible for any claim founded in principle
The major advantage of French law lies in its openness. When the seizure can be governed by French law (in particular for a ship flying the flag of a non-contracting State to the 1952 Convention), the creditor is no longer constrained by the list of maritime claims. Under article L. 5114-22 of the French Transport Code, any person whose claim appears to be well-founded in principle may request authorisation to seize a vessel. It does not matter whether the claim is civil or commercial, land-based or maritime. The principle of the creditor's general lien on his debtor's assets (article 2284 of the Civil Code) is fully applicable. This flexibility represents a considerable strategic advantage for the creditor, who can thus immobilise a vessel to secure a claim that has no direct link with its operation.
Preventive seizure of a vessel is a procedure whose effectiveness depends entirely on a prior analysis of the nature of the claim and the applicable law. An error of assessment can not only lead to the failure of the measure, but can also render the creditor liable for wrongful seizure. Navigating between the requirements of the Brussels Convention and the flexibility of French law requires specialist expertise. To secure your rights and implement the seizure strategy best suited to your situation, contact our law firm for assistance from a specialist in the field. expert ship seizure lawyer.
Sources
- Brussels International Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships
- Geneva International Convention of 12 March 1999 on the arrest of ships
- Transport Code (in particular articles L. 5114-21 and L. 5114-22)
- Code of civil enforcement procedures
- Civil Code (in particular article 2284)
EN 
FR