The seizure of a ship is an enforcement measure that captures the imagination, evoking the forced immobilisation of a valuable asset, a symbol of trade and travel. However, behind this image lies a complex legal reality, governed by a derogatory regime which, despite its practical importance, remains surprisingly outdated. The distinction between precautionary seizure and seizure and execution of ships is fundamental, but it is the second, seizure and execution, that most blatantly reveals the archaisms of French maritime law. While the procedure for the seizure and execution of ships is aimed at the forced sale of property to pay off a creditor, its legal framework, frozen in time, poses considerable challenges for both creditors and debtors. The purpose of this article is to provide an in-depth analysis of the shortcomings of this system, and to highlight the need to modernise the legal framework. enforcement procedures applicable to ships.
Introduction: an exceptional but outdated legal system
The seizure and execution of ships is a special procedure in the field of enforcement. It constitutes a special system, justified by the very nature of the property seized. Although a ship is essentially a movable, it is subject to registration rules and may be subject to security interests, such as a maritime mortgage, which make it similar to real estate. This hybrid nature led the legislator to devise a specific procedure for its seizure.
The paradox of assimilating a ship to immovable property for the purposes of seizure and execution
The peculiarity of the law governing the seizure of ships culminates in the treatment given to execution. For the purposes of this procedure, a ship is largely assimilated to immovable property. This legal fiction has a major procedural consequence: when the special texts are silent, it is not the ordinary law of seizure for sale of movable property that applies, but rather that of seizure of immovable property. This solution, enshrined in case law, structures the entire procedure, from the preparation of the sale to the auction. The ship, a mobile asset par excellence, thus finds itself trapped in a procedural straitjacket designed for fixed assets, which constitutes the founding paradox of this system.
A system that has remained unchanged since 1967, unaffected by reforms to civil enforcement procedures
The legislative framework for the seizure and execution of ships is mainly based on Law no. 67-5 of 3 January 1967 and its implementing decree no. 67-967 of 27 October 1967. These texts, which have since been codified under the same law, have never undergone any substantive reform. They have survived the decades without amendment, surviving in particular the major reform of civil enforcement procedures in 1991, which thoroughly modernised movable enforcement, but carefully avoided the maritime sector. Even more surprisingly, the complete overhaul of the seizure of immovable property by the Order of 21 April 2006 had no impact on the seizure of ships. The regime applicable to ships therefore remains modelled on an attachment procedure that no longer exists under ordinary law, creating a situation of legal discrepancy and uncertainty for practitioners.
The consequences of archaism on procedure
This ageing of the regime for the seizure and enforcement of ships is not without practical consequences. The application of texts designed more than half a century ago, in a radically different economic and legal context, generates cumbersomeness and uncertainties that are detrimental to the effectiveness of the procedure.
Archaic time limits (e.g. twenty-four hours between order and seizure)
One of the most striking examples of this obsolescence is the time limit provided for in article 31 of the 1967 decree, which imposed a twenty-four hour interval between the service of the summons to pay on the debtor and the drawing up of the seizure report. This time limit, inherited from the Marine Ordinance of 1681, was a genuine invitation to debtors acting in bad faith to get their ships underway and avoid action by their creditors. Although the new Transport Code is less explicit, practice and prudence often dictate that this spirit should be respected, forcing the creditor to initiate a precautionary seizure beforehand to guarantee the vessel's immobilisation. This obligation to combine two procedures in order to achieve effective enforcement is a symptom of the inadequacy of the current texts to the speed of modern trade.
Difficulties of subsidiary application of the reformed ordinary law on seizure of property (2006 ordinance, 2006 decree)
The main legal pitfall of the current procedure lies in its relationship with ordinary law. As we have seen, the seizure of a ship is based on the former seizure of property. If the maritime legislation is silent, then the law governing the seizure of real estate must be applied. But which law? The pre-2006 law, on which the 1967 system was modelled, or the current system, which has been thoroughly modernised? Legal logic would dictate that we refer to the law in force. But that is not the case, the process and analysis of modern property seizureswith its orientation hearing and its mechanisms for amicable sale, is light years away from the rigid and formalistic procedure on which the seizure of ships is based. Attempting to apply new and innovative provisions subsidiarily to a procedure that was not designed to accommodate them creates a great deal of confusion. This distortion between special law, which is fixed, and ordinary law, which has been modernised, creates a legal vagueness that complicates the task of judges and lawyers and undermines the predictability of the procedure.
The impact on judicial efficiency and practice
The archaic and complex nature of the system for the seizure and enforcement of ships has a direct impact on its use and effectiveness. Far from being an effective recovery tool, this procedure has become a marginal and feared means of enforcement, whose cumbersome nature often discourages the most determined creditors.
Challenges for creditors and debtors faced with a cumbersome and little-used procedure
Professor Rodière pointed out in his day that "protective attachment is as frequent and even commonplace as enforcement is rare". This observation is still valid today. For a creditor, initiating an attachment on a ship is like an obstacle course. The procedure is long, costly and fraught with legal uncertainties, particularly when it comes to the various applicable rules. The risk of the vessel leaving port before it is actually seized, the complexity of publicity formalities and the difficulties associated with forced sale are all obstacles. For the debtor, if the detention of his vessel remains an extremely prejudicial measure that paralyses his economic activity, the complexity of the procedure can also become a ground for dilatory disputes, lengthening delays and increasing costs for all parties. This situation benefits no-one and turns what should be an efficient procedure into a long and uncertain dispute.
The need for and issues involved in legislative reform of the regime governing the seizure and enforcement of ships
Given this situation, the need for an in-depth reform of the procedure for the seizure and execution of ships is obvious. Modernising this procedure is a major challenge for legal certainty and the attractiveness of the French port system. Reform should have several objectives: to simplify the procedural stages, to clarify the rules of jurisdiction and applicable law, and above all to harmonise the special regime for the seizure of ships with the guiding principles of modern civil enforcement procedures. This opportunity was missed during the major reforms of 1991 and 2006. It is now imperative to provide those involved in the maritime world with a tool for enforced recovery that is effective, predictable and adapted to contemporary economic realities. Such a development is essential to ensure that the law remains an instrument in the service of justice and economic efficiency, and not a relic of bygone eras. Navigating the intricacies of enforcement procedures applicable to ships requires specialised expertise; to secure your rights, the assistance of a competent lawyer is essential.
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
- Code of civil enforcement procedures
- Civil Code
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