When a debtor fails to honour his financial commitments, the creditor has legal means at his disposal to recover the debt. If the debtor is the owner of a valuable asset, such as an inland waterway vessel, that asset may be subject to specific procedures known as enforcement measures. French law, supplemented by international conventions, provides for two main types of seizure applicable to registered inland waterway vessels: protective seizure, which aims to 'freeze' the asset to secure a future or uncertain claim, and seizure for sale, which results in the forced sale of the vessel to enable creditors to be paid the price. Understanding these procedures is essential if you are to navigate French waterways in full compliance with the law.
These procedures are governed by strict rules to protect the rights of both creditors and debtors. Understanding how they work, the conditions under which they are implemented and their consequences is essential, whether you are a creditor seeking to recover what you owe or a boat owner faced with a seizure order. Let's look at these two mechanisms in detail.
Attachment: immobilising the boat to secure the debt
Imagine that you have a claim against the owner of a boat, but that this claim is not yet due, or that you have not yet obtained a final judgment recognising it. However, you fear that the debtor will organise his insolvency or make the boat disappear before you can take action. Attachment is the right tool for this situation. Its purpose is not to sell the asset immediately, but to make it unavailable, to immobilise it physically, to safeguard the chances of future recovery.
When can a protective attachment be requested?
Unlike maritime law, which has its own rules, the precautionary seizure of a registered river boat is governed by the ordinary law of civil enforcement procedures (CPCE), as confirmed by article R. 4123-1 of the Transport Code. International law, in particular Protocol 2 of the 1965 Geneva Convention, may also apply, even if there is no foreign element. In addition, the legal status of inland vessels is essential for determining the rights and obligations of its owners and third parties. Because of this specificity, it is crucial to analyse the legal implications of precautionary seizure with regard to the laws applicable to movable property. In addition, case law on arrest may also influence the legal protection afforded to inland vessels. It is also important to note that security interests in river vessels can offer additional guarantees to creditors, strengthening their position in the event of a dispute. The valuation of these securities must be carried out carefully, as it can have significant consequences for the rights of owners and creditors. Thus, a thorough understanding of the mechanisms of attachment and security interests in riverboats is essential to navigate effectively within the legal framework specific to this type of asset. It is also necessary to take into account the river ownership regulationswhich may impose further restrictions on the ownership and management of inland vessels. These regulations influence not only the rights of owners, but also the way in which creditors can exercise their rights in the event of seizure. A full analysis of these aspects is essential to avoid legal complications in transactions or disputes involving inland waterway vessels.
Under French ordinary law (Article L. 511-1 of the CPCE), in order to obtain authorisation for a protective attachment, the creditor must meet two main conditions:
- They must have claim appearing to be well-founded in principle. It is not necessary to already have a writ of execution (final judgment), but the claim must appear serious and legitimate in the eyes of the judge.
- It must demonstrate the existence of circumstances likely to jeopardise recovery. For example, the creditor may be able to prove that the debtor is in the process of selling his assets, that he is moving without leaving an address, or that he is notoriously in financial difficulty. Simply having a claim is not enough; there must be a real risk to its payment.
Unless the creditor already has an enforceable title or a court decision that is not yet enforceable, he must obtain a prior authorisation from the judge (the enforcement judge or the president of the commercial court if the claim is commercial).
The procedure to follow
Once authorisation has been obtained (if necessary), the creditor appoints a bailiff to carry out the seizure. The bailiff goes to the boat and draws up a seizure deed that renders the property unavailable. This seizure must then be publicised so that it can be used against third parties. In accordance with the Geneva Protocol, it should be entered in the ship's registration register, thus informing potential buyers or other creditors of the existence of the measure. Compliance with boat registration and measurement formalities is fundamental to guaranteeing the validity and transparency of such operations.
What are the concrete effects?
The main and immediate effect ismaterial and legal fixed assets of the boat. The owner can no longer move it, sell it or use it as collateral (for example, to create a new mortgage). Any act of disposal carried out after publication of the seizure would be unenforceable against the seizing creditor. This is an effective form of protection that "freezes" the situation pending a solution on the merits (voluntary payment, obtaining a judgment, etc.).
It should be noted that protective attachment does not give the creditor any real rights over the boat (such as a preferential right). It simply prevents the debtor from disposing of it.
How do I get the seizure released?
The debtor (or any other interested party, such as a subsequent mortgagee) may ask the judge to release the seizure, i.e. to cancel it. This can happen if the initial conditions were not met, or if the debtor provides a a surety or other guarantee deemed sufficient by the judge to ensure payment of the claim if it is finally recognised. This guarantee replaces the boat as a pledge for the creditor, enabling the owner to regain free disposal of his property.
Seizure and sale: selling the boat to pay off debts
While protective seizure is a temporary measure, seizure and sale is a compulsory execution procedure. Its objective is clear: to result in the sale of the boat by public auction so that the proceeds of the sale can be distributed to unpaid creditors.
When can a repossession be initiated?
The sine qua non condition for initiating a seizure and sale is to hold a enforcement order evidencing a debt that is liquid (quantified) and due (when it falls due). Enforceable titles are listed exhaustively by law (article L. 111-3 of the CPCE): these are mainly final court judgments, notarial deeds bearing the enforceable formula, certain titles issued by bailiffs or government departments, etc. Without such a title, it is impossible to force the sale of the property.
It is not necessary for the claim to relate to the boat itself. By virtue of the general lien that creditors have on their debtor's assets, any creditor with a writ of execution can, in principle, have the boat belonging to his debtor seized.
Which boats can be seized?
The specific procedure for the seizure and sale of boats set out in the French Transport Code (articles R. 4123-3 et seq.) applies to cargo boats with a deadweight of at least 20 tonnes and other boats with a displacement of at least 10 cubic metres (the same thresholds apply as for registration). For smaller boats, the procedure for seizure and sale of tangible assets under ordinary law applies.
A delicate question may arise: can a boat be considered exempt from seizure if it is the essential work tool of a boatman? Article L. 112-2, 5° of the CPCE declares "movable property necessary for the life and work of the distrainee and his family" to be exempt from seizure. Case law has sometimes accepted that a single fishing boat owned by a small-scale seaman can be exempt from seizure, but only under strict conditions: the owner must be a natural person engaged in a small-scale business, and the property must be proven to be essential for the exercise of the profession. However, there are limits to this protection: the asset can still be seized for payment of its own price (by the unpaid vendor), if it is located in a place other than that where the craftsman usually works (which is debatable for a mobile boat), or if it is considered to be a "valuable" asset. The application to a barge, which is often of significant value, is therefore uncertain and will depend on the judge's assessment.
Key stages in the seizure procedure
The seizure and sale of a registered boat follows a formal procedure:
- Order for payment : The bailiff first serves the debtor with a summons to pay, reminding him of the writ of execution and the amount owed, and giving him 24 hours to comply, failing which the debt may be seized.
- Seizure report : If payment is not made within the time limit, the bailiff will proceed with the physical seizure of the boat and draw up a detailed report. This document identifies the creditor, the title, the claim, the owner, the boat and its accessories, and appoints a custodian responsible for the seized property.
- Notification and summons : Within three days of the seizure, a copy of the report must be sent to the owner (if he or she was not present), and above all, the owner must be summoned to appear before the enforcement judge in the place where the seizure took place. The purpose of this hearing is to obtain the judge's authorisation to proceed with the sale. Failure to comply with the three-day time limit will render the seizure null and void.
- Publicity of the seizure : To make the seizure enforceable against third parties and freeze the legal status of the boat, the seizure report must be transcribed at the registry of the commercial court in the place of registration, within three days of the seizure. Once this has been done, the boat is officially unavailable. The clerk's office then issues a statement of registrations (mortgages, etc.). The seizure must then be notified to the creditors already registered, who are informed of the procedure and invited to participate. If there is no judgment recording the sale within two years of the transcription, the seizure lapses.
Once the seizure has been registered, the boat can no longer be sold by the owner, and no new mortgage or registration can be validly taken out against the seizing creditor. Other registered or preferential creditors may ask the judge to be "subrogated" in the proceedings, i.e. to take over from the original creditor.
The forced sale of the boat: procedure and outcome
If the debtor still does not pay, the procedure continues towards sale:
- Preparatory judgment : The enforcement judge, at the hearing for which the debtor has been summoned, sets the terms of the sale: he or she determines the upset price, the date and time of the sale hearing, and may appoint the public official (notary, bailiff) who will carry out the sale, often at the place where the boat is located.
- Pre-sale advertising : Fifteen days before the set date, extensive advertising must be organised to attract as many bidders as possible: advertisements in legal and specialist newspapers, posters displayed on the boat, at the court, on the quay, etc. These advertisements contain all the useful information about the boat and the conditions of the sale.
- Sales audience : Auctions are conducted according to rules similar to those for the seizure of real estate. Bids may only be placed by a lawyer registered with the local bar. The lawyer must provide a financial guarantee (deposit or bank cheque for 10% of the hammer price) to ensure that his client is a serious bidder. The debtor cannot bid. The highest bid that remains uncovered for 90 seconds wins the auction. The judge immediately rules on any disputes regarding the validity of the bids.
- No auctions : If no one comes forward at the first hearing, the judge sets a new date with a lower price.
After the sale: payment of creditors and purging of securities
Once the boat has been awarded, the successful bidder (the auction buyer) must deposit the price with the Caisse des Dépôts et Consignations within 24 hours, failing which the sale will be cancelled and the boat re-auctioned ("re-auctioning").
On this consigned price, the legal fees Any costs incurred to complete the sale (bailiff's fees, advertising costs, custodian fees, etc.) are deducted as an absolute priority, before any distribution to creditors.
The balance is then distributed differently depending on whether there is one or more creditors:
- If there is only one creditor (the distrainor, and no other known registered or preferential creditor), it sends a reasoned request for payment to Caisse des Dépôts, accompanied by the sale judgments and a statement of registrations. Caisse des Dépôts then pays the debtor his claim up to the limit of the available balance and remits any balance to the distrainee debtor.
- If there are several creditorsIn the event of a claim, a distribution procedure (amicable or judicial) is initiated before the enforcement judge. The judge asks known registered and preferential creditors to declare the exact amount of their claim. On this basis, he draws up a distribution proposal ranking the creditors according to their rank (river liens, mortgage, CC liens, etc.). This draft is notified to the creditors and the debtor. If it is not contested within fifteen days, it becomes final and the court clerk's office appends the executory clause. In the event of a dispute, the judge rules and draws up the final statement of distribution.
Once the distribution statement has been finalised, Caisse des Dépôts pays the creditors who have been included in the distribution (those who have been admitted to the distribution according to their rank). At the same time, the enforcement judge establishes the purge of the mortgages and liens that encumbered the boat as a result of the forced sale and orders the cancellation of their registrations at the registry. The successful bidder thus becomes the owner of a property free of any prior encumbrances.
Seizure procedures, whether protective or for sale, are powerful but complex tools, with strict deadlines and formalities. To defend your interests as effectively as possible, whether you are a creditor seeking to recover a debt or a debtor whose boat has been seized, the assistance of a lawyer with expertise in this area is essential in navigating these procedural complexities. Contact our firm for an assessment of your case and tailored support, our expertise extending to all aspects of commercial law and inland waterway transport.
Sources
- Transport Code (articles R. 4123-1 to R. 4123-24)
- Code des procédures civiles d'exécution (in particular articles L. 111-3, L. 112-2, L. 511-1 et seq., R. 322-39 to R. 322-49)
- Geneva Convention of 25 January 1965, Protocol No. 2 on the attachment and enforcement of inland navigation vessels
EN 
FR