The maritime world is home to a number of legal peculiarities that are little known to the general public. The ship, a mobile object par excellence, is subject to a specific regime when it comes to seizure. Between maritime law, international law and enforcement procedures, the rules are not lacking in complexity.
I. Legal definition of a ship
Qualification criteria
A ship is not just any floating object. The French Transport Code defines it as a floating craft "built and equipped for maritime navigation" and "assigned to it". This definition does not depend on a minimum tonnage.
Jurisprudence adds practical criteria: the ability to face the perils of the sea and autonomy of movement. A craft with no propulsion system does not qualify as such.
Distinction from other floating equipment
Oil platforms, fixed pontoons and barges do not come under the regime for ships. Inland waterway vessels are subject to specific regulations.
The status of wreck deserves attention: a ship that has become unseaworthy and is considered a wreck loses its status as a ship. It becomes mere movable property.
Importance of the pavilion
The flag determines the nationality of the vessel and, consequently, the applicable law. It plays a decisive role in international seizures. The Brussels Convention of 10 May 1952 applies to ships flying the flag of a contracting state. This link between domestic and international law complicates procedures.
II. Vessels subject to seizure
General principle of seizability
In principle, any vessel may be subject to seizure. French law distinguishes between two types of seizure:
- precautionary arrest, a provisional measure aimed at immobilising the vessel
- seizure and execution, leading to the forced sale of the vessel
The first only requires a claim that "appears to be well-founded in principle", while the second requires a writ of execution (final judgment, notarial deed, etc.).
Requirement of debtor ownership
Only ships belonging to the debtor are subject to execution. This fundamental rule is rigorously applied. The creditor must prove that the debtor is the owner of the vessel he wishes to seize.
On the other hand, precautionary attachment offers greater flexibility. The Brussels Convention allows, in certain cases, the seizure of a vessel not belonging to the debtor, in particular for so-called "maritime" claims.
Charter vessels
A common situation: a vessel chartered by one company but owned by another. Case law has accepted the attachment of a vessel for the charterer's debts, even after the charter contract has ended.
The Rouen Court of Appeal ruled that "article 3-4° of the Convention does not limit the possibility of seizing the chartered vessel to the period of the charter". This solution remains controversial.
Co-owned vessels
Co-ownership of ships, divided into shares or "quirats", creates a special situation. A creditor can seize the shares of the ship belonging to his debtor.
Better still, when the execution relates to shares representing more than half of the vessel, the sale may be extended to the entire vessel. However, article L. 5114-47 of the French Transport Code provides for "justified opposition by the minority joint tenants".
III. Unseizable ships - State immunities
Warships
Warships enjoy immunity from jurisdiction and execution. This protection is based on the sovereignty of States and the United Nations Convention on the Law of the Sea.
A French court cannot order the seizure of a foreign warship. Any attempt to do so "forcibly prevents a warship from carrying out its mission" and constitutes "a source of conflict likely to jeopardise friendly relations between States".
Vessels operated by a State for government purposes
Immunity extends to State vessels assigned to government service. The Brussels Convention of 10 April 1926 refers to "State yachts, surveillance vessels, hospital ships, auxiliary vessels, supply vessels and other vessels belonging to a State".
The case of the "Sedov", a Russian training ship, illustrates this complexity. Initially seized for debts owed to the Russian state, it was released because it had been made available to the University of Murmansk.
Distinction between public and commercial activities
State vessels used for commercial activities do not benefit from this immunity. Case law distinguishes between acts of public authority (jure imperii) and acts of management (jure gestionis).
A merchant ship owned by a State can therefore be seized if it is used for ordinary commercial activities.
Brussels Convention of 10 April 1926
This convention established the fundamental principles of maritime immunities. It does, however, allow exceptions for certain claims, in particular in the event of collision, maritime assistance or repairs.
These claims make it possible to sue the owner state before its own courts, without authorising the seizure of the vessel.
IV. Other cases of unseizability
Ships ready to sail (historical development)
The former article 215 of the French Commercial Code prohibited the seizure of ships "ready to sail". The aim of this protection was to avoid disrupting maritime trade by seizing ships at the last minute.
This rule has disappeared from the current texts, replaced by the sanction of abusive seizures. The Rennes Court of Appeal ruled against a creditor who had seized a ship during the "prestigious Brest 2000 festivities", seeing it as a "highly publicised procedure" designed to "put pressure on the debtor".
Vessels required for professional activity
Under article R. 112-2 of the French Code of Civil Enforcement Procedures, "the work tools necessary for the personal exercise of the professional activity" are exempt from seizure.
This protection does not apply to large commercial vessels, but could benefit a small-scale fisherman. However, it would be necessary to prove that the vessel was his personal work tool, which is not always obvious.
Small-scale fishing vessels
In this vein, the courts have sometimes accepted that vessels used for professional fishing are exempt from seizure. The Montpellier Court of Appeal protected a small-scale fishing vessel, the "Phoebus".
However, the judge will check that the activity is actually being carried out and that the vessel is actually being used for this purpose.
Special cases (postal ships, etc.)
Other ships are exempt from seizure because of their public interest mission. Postal ships, even those operated by private shipowners, are protected because they perform a public service.
The reason for this derogation is that the seizure would hinder the performance of a mission of general interest.
V. International issues
Emanation theory
The "emanation theory" makes it possible to seize a ship for the debts of a company that does not own it, but that emanates from the same State that owns it.
It mainly concerns the commercial fleets of states that set up different companies to manage their ships. Case law then considers that "all these ships actually belong to the State".
However, the Cour de cassation is keeping a close eye on abuses of this theory, which runs the risk of denying the legal personality of many distinct entities.
Ships flying flags of convenience
Flags of convenience complicate the situation. Some countries offer flexible registration rules, reduced taxes and limited control.
This can make seizures more difficult, particularly when the apparent owner is not the actual debtor.
Single ship companies
The common practice is to set up a separate company for each vessel in the fleet. These "single ship companies" limit the financial risks.
The legal consequence is clear: the creditor of a company operating a vessel cannot seize another vessel belonging to a separate company, even if the two companies have the same shareholders.
The Court of Cassation has been very strict on this point in several rulings (19 March 1996, 21 January 1997).
VI. Bypass techniques and case law
Presumptions of ownership
When faced with complex arrangements, creditors can invoke presumptions of ownership. Registration with the customs authorities creates a simple presumption.
This presumption may be rebutted by evidence to the contrary, but provides a basis for the creditor.
Appearance
The theory of appearance has met with varying success. The courts have sometimes allowed seizure where the debtor appeared to be the owner in the eyes of third parties.
This approach, based on clues (same insurance company, same address, single manager), is now coming up against the rigour of the Cour de cassation.
Fictibility of companies
The fictitious nature of companies is the most effective argument. If the creditor demonstrates that an owner company is merely a fiction, the veil of legal personality can be lifted.
The Court of Cassation thus accepted the fictitious nature of an arms company "when its only apparent activity was non-existent, it had no autonomy and it had no assets of its own" (15 October 2002).
Case law solutions
Case law is becoming more demanding. It now requires proof of a confusion of assets and liabilities or gross fictitiousness, rather than a simple "community of interests".
The burden of proof lies with the distraining creditor. The courts verify the existence of concrete evidence: absence of own staff, joint bank accounts, cross payments between companies.
The seizure of ships thus remains an effective but strictly regulated instrument. Judges are constantly seeking to strike a delicate balance between protecting maritime trade and safeguarding creditors' rights.
Sources
- Transport Code, articles L. 5114-20 et seq.
- Brussels Convention of 10 May 1952 on the Arrest of Ships
- Brussels Convention of 10 April 1926 on the Immunities of State-owned Ships
- Court of Cassation, Commercial Division, 19 March 1996, No. 94-10.838
- Court of Cassation, Commercial Division, 15 October 2002, Taganroga and Razna ships
- Rennes Court of Appeal, 27 June 2002, Sedov ship
- Tribunal de grande instance de Brest, 24 July 2000, Sedov ship
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