Maritime and aviation law, by its very nature international and fluid, has undergone a series of legislative reforms and significant developments in case law in recent years. Between 2022 and 2024, the rules governing the seizure of ships and aircraft have been modernised to adapt to new economic and procedural realities. Whether you are creditor seeking to ensure cover Whether you are a debtor or the owner of an asset concerned, it is essential to keep abreast of the latest developments in order to navigate this complex legal environment. In this article, our firm analyses the major changes affecting the ways in which debt can be enforced.’execution on these specific assets, distinguishing these special regimes from reforms under ordinary law (such as the new seizure procedure of remuneration planned for July 2025).
The new system for publicising security interests (RSM) since 2022
One of the most important structural changes concerns the administrative management and publication of security interests in ships. These recent developments have radically altered the legal regime for the seizure of ships and aircraft established by previous law..
Transfer of customs powers to commercial court registrars
Historically, the customs administration played a central role in the conservation of maritime mortgages and the publication of seizures. Since 1 January 2022, a major reform has transferred this responsibility to the clerks of the commercial courts. They are now responsible for keeping the Register of Movable Securities (RSM). This transfer marks a key stage in the modernisation of the justice commercial.
The aim of this change is to centralise and simplify access to the’information on the legal status of ships. For practitioners and creditors, this means a change of contact for all the formalities involved in registering a seizure or mortgage on a ship that has been chartered. This transfer of jurisdiction is in line with the 2021 reform of the law on securities, which aims to modernise the publicity of securities. and enhance the legal certainty of transactions. Visit register becomes the nodal point of information for all third party interested.
Practical implications for the registration of seizures and mortgages
In practical terms, the registration of a minutes of seizure or a mortgage deed is no longer done at the customs office of the home port, but at the customs office of the home port. transplant competent via the register digital. This modernisation will make it easier to consult the status of a vessel's charges, and will make it easier to delivery mortgage statements.
However, it requires professionals to be extra vigilant during the transition phase and to adapt to the new dematerialised procedures in order to ensure that their rights are enforceable. Implementing this register will change the usual reflexes of solicitors and barristers. judicial commissioners (formerly bailiffs) responsible for the meaning acts. The role of the commissioner is a decisive factor in ensuring the link between the creditor and the register.
Codification and adaptation of the rules on maritime mortgages (October 2023)
The modernisation of security law has also affected the background of the law, with a recent reorganisation of the texts applicable to guarantees on ships. Visit decree n° 2023-921 of 5 October 2023 completed this movement.
Incorporation into the Transport Code and the reform of security law (2021)
Since October 2023, the regulatory provisions relating to maritime mortgages have been adapted and codified directly in the Code transport. This legislative amendment echoes the general reform of securities law in 2021 and the creation of the RSM mentioned above. The aim is to harmonise the maritime security regime with ordinary law while preserving the specific features inherent in maritime matters, in particular with regard to disposal rank or the distribution of the price.
Procedural changes and rights of mortgagees
Incorporation into the Transport Code consolidates the rules on maritime mortgages and their enforceability against third parties. Creditors must now refer to these new codified provisions when registering, renewing or cancelling their guarantees. This codification clarifies the ranking of creditors and the procedures for purging mortgages in the event of a sale. forced, providing greater predictability for the cover of claims. Scrupulous compliance with the new registration formalities is a prerequisite for the survival of the right of the creditor, whether title or via a representative.
Extension of maritime claims and right to attach crew wages (2023)
Recent case law has clarified and broadened the concept of a «maritime claim», which is a sine qua non for the seizure of a ship under international conventions, in particular the 1952 Brussels Convention. This development particularly affects the social protection of seafarers employee.
Assimilation of claims for termination of employment contracts to wages and salaries
In a landmark ruling on 13 September 2023 (no. 20-21.546), the Cour de cassation adopted a broad interpretation of the notion of remuneration. The High Court ruled that a claim arising from the wrongful termination of the contract from work of a crew member can be assimilated to a claim of salaries within the meaning of the Convention. Consequently, a seafarer may validly have his vessel seized. employer to guarantee payment redundancy or termination payments, and not just back pay in the strict sense of the term. This solution strengthens the position of debtor employee of its workforce against the shipowner.
Consequences for the security to be lodged for release
This case law has a direct impact on the shipowners' defence strategy and the calculation financial risk. The assimilation of wages and salaries has a direct impact on the amount of security required to obtain the release of the seizure.. When a vessel is seized for this type of claim, the judge retains sovereign power to arbitrate the amount of the security or bond. guarantee banking services that the owner must provide in order to release his vessel.
The amount is no longer limited to unpaid wages, but may include all the indemnities linked to the termination of the employment contract. The judge may thus set a guarantee covering the principal, interest and costs, making the release of the vessel more costly for the shipowner. debtor. Unlike the seizable portion applicable under ordinary law, the amount of the maritime guarantee remains at the discretion of the judge.
Jurisdiction and immunity from execution for foreign aircraft (2023-2024)
The aviation sector has not been left behind, with important decisions clarifying the jurisdiction of judges and the protection of state aircraft. These developments particularly concern enforcement against assets belonging to foreign state entities.
Exclusive jurisdiction of the Enforcement Judge for foreign aircraft
The Cour de cassation (French Supreme Court) ruled on 2 February 2023 (no. 21-17.459), a delicate question of jurisdiction. The Enforcement Judge has been given exclusive jurisdiction over disputes concerning foreign aircraft. Thus, to authorise the precautionary seizure of an aircraft of foreign nationality or belonging to an owner not domiciled in France, the matter must be referred to the enforcement judge (JEX), and not to the president of the commercial court. This disposition clarifies the role of the courts.
This clarification puts an end to certain procedural hesitations that may have existed. The JEX has exclusive jurisdiction, with the exception of concurrent jurisdiction, which is strictly governed by law. law for commercial claims, but it would be prudent to refer the matter to the natural enforcement judge in order to avoid any dispute on the validity of the prescription. This is a guarantee of justice for the debtor seized.
Conditions for waiver of immunity from execution by a foreign State
The case law of 2023 and 2024 particularly clarified the framework for seizures of aircraft belonging to foreign States. In a judgment of 13 March 2024 (no. 21-17.599), it was established that the express waiver of immunity from execution by a foreign State is sufficient to permit the seizure of an aircraft belonging to that State.
The waiver need not be «special» or specifically designate the asset concerned, provided that the State does not prove that the aircraft is assigned to a diplomatic mission or public service. This decision makes it easier for creditors to take action against defaulting States, by validating the broad waiver clauses often included in international contracts.
Reform of civil procedure and impact on seizures (2019-2025)
Although it dates from 2019, the reform of the procedure civil (decree no. 2019-1333) continues to have effect and to modify the practice sea and air seizures. In addition, the movement of diversion which affects enforcement law (in particular with the future reform of attachment of earnings and the creation of the court commissioner dispatcher planned for July 2025) raises the question of the continuing specific nature of maritime enforcement procedures.
Creation of the judicial tribunal and unification of referral methods
The merger of the magistrates' courts and the regional courts into a single judicial court has changed the structure of the courts. Since this reform, the methods of bringing a case before the court have been unified, retaining only the writ of summons and the request. For seizure practitioners, this implies vigilance with regard to the form of the documents initiating proceedings, in particular during the action on the merits, which must imperatively follow a protective seizure in order to validate the procedure.
Failure to comply with deadlines or formalities at this crucial stage may result in the seizure being declared null and void. The role of the commissioner of justice is central here to signify these acts within the allotted time, which is often brief (one month in general). This commissioner, the key player in the enforcement process, must also ensure that the summons to pay where applicable.
Extension of the powers of the pre-trial judge and provisional enforcement
The reform has also strengthened the powers of the judge of the setting en état, which can now rule on grounds of non-receivability. This change will speed up the handling of certain disputes relating to the validity of seizures even before the case is heard on the merits. In addition, the principle of provisional enforcement of court decisions now applies by default.
This means that a judgment releasing or validating a seizure is immediately enforceable, even in the event of an appeal, unless provisional enforcement is ordered by the first president of the court of appeal. This mechanism considerably alters the balance of power between creditor and debtor, making first instance decisions much more impactful. Visit dispute of these measures requires an immediate response.
Outlook: International conventions and future reforms
Maritime law is constantly evolving under the impetus of international bodies. Professionals must anticipate future changes in order to adapt their contractual and litigation practices, both in terms of national international.
The future United Nations Convention on Juridical Sales of Ships (project 2022)
A draft UN resolution, adopted at the end of 2022, paves the way for the future of judicial sales of ships (Beijing Convention). The aim is to ensure that a ship sold by court order is recognised internationally as being free of any prior charge or mortgage. Among other things, this text prohibits any new protective attachment for a claim arising prior to the judicial sale, once the certificate of judicial sale has been issued.
This agreement, once in strength, It will provide greater legal certainty for buyers of ships at public auctions, and will clean up the second-hand ship market by purging past debts. It will oblige creditors to come forward quickly during the sale procedure to assert their rights to the sale price, failing which their security will be extinguished. The proceeds of the sale will then be distributed between creditors according to their rank. In this context, although the role of distributor is not systematised as in the future civil procedure for seizure of remuneration, the distribution of the price remains a critical phase.
Faced with these complex and technical legislative changes, our expertise in maritime and transport law can help you secure your seizure procedures. Whether you need to carry out a measure If you need to protect your assets against seizure or execution, we can help you define the best strategy.
Sources
- Code transport (in particular articles L. 5114-21 et seq.)
- Code of civil enforcement procedures
- Brussels Convention of 10 May 1952 on the Arrest of Seagoing Ships
- Decree no. 2023-921 of 5 October 2023 on maritime claims
- Civ. 2e, 2 Feb. 2023, no. 21-17.459 (Jurisdiction of JEX aéronef)
- Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for the justice system
- Code du work (comparative references for attachment of earnings)
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