{"id":16313,"date":"2025-07-15T13:29:48","date_gmt":"2025-07-15T12:29:48","guid":{"rendered":"https:\/\/solent-avocats.com\/saisie-conservatoire-navire-convention-bruxelles-1952-droit-applicable\/"},"modified":"2026-03-25T12:11:54","modified_gmt":"2026-03-25T11:11:54","slug":"attachment-of-vessel-brussels-convention-1952-applicable-law","status":"publish","type":"post","link":"https:\/\/solent-avocats.com\/en\/saisie-conservatoire-navire-convention-bruxelles-1952-droit-applicable\/","title":{"rendered":"Arrest of ships: the 1952 Brussels Convention and applicable law"},"content":{"rendered":"

The precautionary seizure of a vessel is a formidable procedure for creditors seeking to secure their claim. It results in the immobilisation of a valuable asset, often at the heart of the owner's economic activity. However, the international nature of maritime transport creates unique legal complexities. Determining the law applicable to such a measure is a fundamental step that conditions the validity and effectiveness of the entire procedure. This article takes a closer look at the conflict-of-laws and conflict-of-jurisdiction rules governing this area, based in particular on the provisions of the 1952 Brussels Convention. A good understanding of these mechanisms is essential for any economic player faced with a maritime dispute. For a general presentation, please consult our complete guide to the seizure of ships<\/a>. Our law firm, with its experience in enforcement proceedings and seizure of ships<\/a>supports its customers in implementing these complex procedures.<\/p>\n

Introduction to the law applicable to the arrest of ships<\/h2>\n

The detention of a ship in a French port as security for a debt immediately raises the question of the applicable law. A ship is a particular kind of movable asset, a point of contact between potentially different legal systems: that of its flag, that of its port of seizure, that of the residence of the parties or that of the contract giving rise to the debt. This situation has led to the development of specific rules to organise the matter.<\/p>\n

International legal framework (1952 Brussels Convention, French law)<\/h3>\n

In France, provisional arrest of ships is governed by two sources. On the one hand, domestic law, mainly codified in Articles L. 5114-21 and L. 5114-22 of the Transport Code, provides a general framework. It allows any person whose claim appears to be founded in principle to obtain authorisation to seize a ship. On the other hand, the International Convention for the Unification of Certain Rules concerning the Arrest of Seagoing Ships, signed in Brussels on 10 May 1952 and ratified by France, plays a central role. By virtue of the hierarchy of norms, this convention takes precedence over domestic law when the conditions for its application are met. It establishes a specific regime, in particular by limiting attachment to \u00abmaritime claims\u00bb, which it lists exhaustively.<\/p>\n

Distinction between precautionary seizure and execution seizure<\/h3>\n

It is essential not to confuse a protective attachment with an execution attachment. A protective attachment is a provisional measure. Its purpose is to guarantee payment of a debt whose existence has not yet been established by a writ of execution. It aims to immobilise the vessel in order to put pressure on the debtor and force him to pay or provide a guarantee. Seizure and execution, on the other hand, is a genuine means of enforcement. It can only be initiated on the basis of a writ of execution establishing a claim that is certain, liquid and due. Its purpose is no longer temporary immobilisation but the forced sale of the vessel to pay the creditor the price obtained.<\/p>\n

This distinction is not merely theoretical. It governs the entire applicable legal regime: textual basis, conditions of commencement, procedure, effects, exit routes. A maritime creditor who confuses the two measures exposes himself to potentially fatal procedural errors. As Professor Rodi\u00e8re pointed out, the precautionary seizure of ships is \u00abas frequent and even commonplace as enforcement is rare\u00bb. This observation, made in 1980, remains fully relevant today. The following paragraphs describe the differences between these two procedures.<\/p>\n

Seizure of a vessel for safekeeping and execution: a comparison of two regimes<\/h2>\n

Attachment of a vessel for safekeeping and attachment for execution have opposite purposes. The former immobilises in order to guarantee; the latter seizes in order to sell. This difference in nature permeates every aspect of their respective regimes, from the conditions under which they are opened to the effects they produce, not to mention the procedural aspects and the terms of release.<\/p>\n

Radically different opening conditions<\/h3>\n

The threshold for entering into a protective attachment is deliberately low. Where the 1952 Brussels Convention applies, the mere allegation by the creditor of one of the seventeen maritime claims listed in Article 1 is sufficient to justify the attachment. The Court of Cassation has reiterated this unambiguously: \u00abthe mere allegation by the distrainor of the existence, for his benefit, of one of the maritime claims is sufficient to justify his right to seize the vessel\u00bb (Cass. com., 13 September 2023, no. 20-21.546). The judge does not have to verify the validity of the claim at the authorisation stage. All he has to do is establish that the claim falls within one of the conventional categories.<\/p>\n

When the protective attachment is based solely on domestic law - because the Convention does not apply - the requirement is slightly higher. Article L. 5114-22 of the Transport Code requires that the claim appears to be \u00abfounded in principle\u00bb. The judge then carries out a summary examination of the likelihood of the claim, without ruling on the merits. The difference with the conventional system is subtle but real: pure allegation gives way to an assessment, however minimal, of the appearance of right.<\/p>\n

Seizure and enforcement follows a completely different logic. It presupposes a writ of execution - a judgment that has become res judicata, an enforceable arbitration award, a notarised deed bearing the executory clause - establishing a claim that is certain, liquid and due. This is enforcement in the strict sense of the term. Articles L. 5114-23 to L. 5114-29 of the Transport Code, which govern this procedure, leave no room for approximation. The claim must be established and quantified, and the due date must be reached. There is a considerable difference with protective attachment: on the one hand, a mere appearance of entitlement; on the other, an entitlement that has been judicially or contractually established.<\/p>\n

Another notable difference is that the 1952 Brussels Convention only governs protective seizures. Enforcement is governed exclusively by domestic law. A creditor who has a writ of execution and wishes to proceed with the forced sale of a ship will therefore never be able to rely on the Convention provisions as a basis for his action.<\/p>\n

Procedures and deadlines specific to each measure<\/h3>\n

Precautionary attachment is characterised by its speed and surprise effect. The creditor applies to the court by petition, i.e. without hearing the parties. The debtor is not informed of the application before the measure is authorised and executed. This lack of prior notification is consubstantial with the effectiveness of the measure: if the shipowner had been warned, he would have been able to set sail and prevent the vessel from being seized. Once the order has been obtained, the bailiff goes to the port to serve the seizure report on the ship's captain and the port authority, which then prohibits the vessel's departure.<\/p>\n

This does not mean that the conservatory creditor is free of any time constraints. They must bring an action on the merits within one month of the seizure, failing which the measure will lapse. This short deadline, imposed by case law on the basis of the general law governing protective measures, obliges the creditor to act quickly to transform his provisional guarantee into proceedings on the merits.<\/p>\n

Seizure and execution follows a heavier, more formalised and slower procedural path. The creditor must first notify the shipowner of his writ of execution and then serve a summons to pay. Twenty-four hours must elapse between the summons being served and the seizure report being drawn up. This formality is explained by the seriousness of the measure: the attachment initiates a process leading to the forced sale of the vessel at public auction. The debtor must be given one last opportunity to comply voluntarily before the procedure is irreversibly set in motion.<\/p>\n

Publication of the seizure is subject to additional formalities: entry in the maritime mortgage register, legal publicity, compilation of a sales file. The entire procedure, from the payment order to the auction, takes several months, or even longer if incidents occur.<\/p>\n

Contrasting legal effects<\/h3>\n

Arrest has a single effect: it immobilises the vessel. The vessel remains in port, in the custody of its crew, but cannot sail. The owner retains ownership of the vessel and, unless the court decides otherwise, continues to operate it on the quayside (maintenance operations, cargo unloading). Detention does not entail any transfer of ownership, dispossession or purging of any security on the vessel. It constitutes economic pressure - a vessel detained in port generates considerable costs without producing any revenue - designed to encourage the debtor to settle its debt or provide sufficient security.<\/p>\n

Seizure and execution has a radically different objective: the realisation of assets. The procedure culminates in the forced sale of the vessel at public auction, organised by the court. The auction transfers ownership to the buyer and, above all, removes all maritime liens and mortgages on the vessel. The auction price is then distributed among the creditors in the order of their security interests. The ship changes hands, free of all encumbrances. For the shipowner, the loss is final.<\/p>\n

These contrasting effects explain why seizure is the preferred measure of maritime creditors. It offers powerful negotiating leverage - immobilisation is costly for the shipowner - without committing the parties to the long and irreversible process of forced sale. In practice, execution only comes into play when all negotiations have failed and the creditor, armed with his title, has no choice but to realise the asset.<\/p>\n

Discharge, guarantees and creditor strategy<\/h3>\n

In most cases, protective seizures are resolved by the provision of a guarantee. Article 5 of the 1952 Brussels Convention states that the court must order the release of the seizure if a \u00absufficient security or guarantee\u00bb is offered. Various forms of guarantee are accepted: first-demand bank guarantee, letter of guarantee issued by a Protection and Indemnity (P&I) club, deposit of a sum with the Caisse des D\u00e9p\u00f4ts. The amount of the guarantee is set by the judge according to the amount of the alleged debt, interest and foreseeable costs.<\/p>\n

This guarantee substitution mechanism is at the heart of our practice. Arrest orders rarely last more than a few days, or even a few hours. The shipowner or his P&I Club, faced with the costs of immobilisation and the disruption to the vessel's commercial operation, generally agree to provide a guarantee quickly in order to obtain the vessel's departure. Arrest thus functions as a temporary pressure mechanism, the normal outcome of which is the creation of a replacement security.<\/p>\n

There is no such substitution mechanism in execution. Only full payment of the claim, interest and costs can stop the forced sale procedure. The debtor cannot offer an alternative guarantee to have the seizure lifted and his vessel recovered - he must pay or be auctioned off. This rigour is consistent with the nature of the measure: the creditor has an enforceable title, his claim is established, and he is entitled to obtain actual payment, not a simple guarantee of future payment.<\/p>\n

From a strategic point of view, the maritime creditor therefore has two tools with complementary functions. Preventive attachment is used upstream of the dispute, as an instrument of pressure and security. It enables a guarantee to be obtained quickly, a prerequisite for any serious negotiations with a foreign shipowner. Seizure in execution comes into play downstream, once the title has been obtained, when the debtor refuses to perform. The transition from one to the other presupposes that the case has been heard on the merits and that a final decision has been obtained - a process that can take several years in international maritime disputes.<\/p>\n

Scope of the 1952 Brussels Convention<\/h2>\n

The application of the 1952 Brussels Convention depends mainly on the flag of the vessel seized. The text makes a distinction according to whether or not the vessel flies the flag of a State party to the Convention, each situation giving rise to different rights for the seizing creditor.<\/p>\n

Vessels flying the flag of a contracting state and exceptions<\/h3>\n

The principle set out in Article 8(1) of the Convention is clear: the Convention applies to any attachment carried out in a Contracting State (such as France) on a vessel flying the flag of another Contracting State. In this case, the provisions of the Convention, particularly those relating to maritime claims, are mandatory and override French domestic law. The residence of the creditor or debtor is irrelevant. There is, however, one notable exception to this principle, dictated by logic: if the situation is purely internal, i.e. if the attachment takes place in France, on a ship flying the French flag, and at the request of a creditor residing in France, the Convention disappears in favour of French law. The Convention also allows a Contracting State to refuse to apply its provisions to a national of a non-Contracting State, but France has never made use of this possibility, so the court cannot invoke it on its own initiative.<\/p>\n

Vessels flying the flag of a non-contracting state<\/h3>\n

When the arrest is carried out in France on a ship flying the flag of a State that is not party to the Convention (for example, the United States or Japan), Article 8(2) offers the creditor a strategic option. He can choose to base his claim either on international law or on domestic law. If he chooses the first route, he will have to allege one of the 17 maritime claims listed exhaustively in Article 1 of the Convention. If he opts for the second, he will be able to rely on any claim, even a non-maritime one, provided that it appears to be \u00abfounded in principle\u00bb within the meaning of article L. 5114-22 of the Transport Code. This flexibility represents a considerable advantage for creditors whose claims do not fall within the restrictive list of maritime claims.<\/p>\n

Case law interpretations and scope of the Convention<\/h3>\n

The exact scope of Article 8(2) has given rise to much debate in the case law. The question was whether this text merely extended the list of claims that could justify an attachment (by adding those under domestic law) or whether it extended the application of all the substantive rules of the Convention (in particular on attachable ships) to the attachment of a ship from a non-contracting State. The Court of Cassation has had fluctuating interpretations. In a Mediterranea<\/em> 1999, it appeared to adopt a restrictive interpretation, limiting the application of the Convention. However, in a Sargasso<\/em> of 2000, it adopted a broader view, favouring application of the convention as a whole. This latter position now seems to prevail, as it avoids creating a more favourable regime for ships flying the flag of non-contracting states, which could then more easily escape seizure. This interpretation is also supported by the spirit of the new Geneva Convention of 1999 (not yet widely ratified), which provides for its application to any ship, whether or not it flies the flag of a State Party.<\/p>\n

Conflicts of laws and jurisdictions regarding the arrest of ships<\/h2>\n

The inherent international nature of maritime activities places protective seizures at the crossroads of multiple conflicts of law and jurisdiction. The 1952 Brussels Convention, while laying down substantive rules, does not settle everything and makes several references to national laws, making it more difficult to determine the applicable law at each stage of the procedure. These issues are at the heart of the problem of international aspects of provisional measures<\/a>.<\/p>\n

Law applicable to the proceedings (lex fori)<\/h3>\n

The rule here is simple and clearly set out in Article 6 of the Convention: the procedural rules relating to the seizure, to obtaining judicial authorisation and to any incidents that may arise therefrom, are governed by the law of the place where the seizure is carried out or requested. This is the principle of lex fori<\/em> (the law of the forum, i.e. the court seized). Thus, a protective seizure carried out in a French port will be subject, for its procedural implementation, to French law, and more specifically to the provisions of the Code of Civil Enforcement Procedures and the Transport Code.<\/p>\n

Liability of the distrainor (lex loci \/ lex fori)<\/h3>\n

Arresting a vessel is not a trivial matter. If the seizure turns out to be unfounded or abusive, it can cause considerable damage to the shipowner. The question of the law applicable to the liability of the distraining creditor is therefore of paramount importance. The Brussels Convention answers this question by designating, once again, the law of the place where the attachment was effected or requested (lex loci<\/em>). It is therefore French law that will determine the conditions under which the creditor may be held liable for a seizure deemed improper in a French port, in particular on the basis of negligence or tort.<\/p>\n

Jurisdiction of the court for the substantive action (forum arresti)<\/h3>\n

The protective attachment is only a provisional measure. The creditor must then bring an action on the merits to obtain a writ of execution. Where should this action be brought? The 1952 Convention recognises the jurisdiction of the courts of the State where the seizure took place (principle of arresti forum<\/em>), but only if the domestic law of that State grants them such jurisdiction. If this is not the case, Article 7 of the Convention lists six limited cases in which the court of the place of attachment will nevertheless have jurisdiction. These cases include the claimant's residence in the State of attachment, the place where the claim arose, a collision, assistance or a claim secured by a mortgage. Apart from these cases, French case law tends to reject the general jurisdiction of the Court of First Instance. arresti forum<\/em>, The Court of Appeal of the French Republic, in its decision of 11 July 2006, required the international jurisdiction of the French courts to be based on other connecting factors.<\/p>\n

Inapplicability of the 1952 Brussels Convention and national laws<\/h2>\n

Where the 1952 Brussels Convention is not intended to apply, for example in a purely national situation, the judge must turn to the conflict of laws rules to identify the applicable law. The complexity remains, as several legal systems may potentially govern the seizure.<\/p>\n

Role of the lex fori and the lex navis<\/h3>\n

In the absence of an applicable international convention, two main bodies of rules compete to govern the substantive conditions of protective attachment: the lex fori<\/em> (law of the court seised) and the lex navis<\/em> (the law of the ship's flag). The lex causae<\/em>, The law applicable to the claim itself (for example, the law of the contract) is generally not used to govern attachment. French case law does not establish an absolute principle in this area. While the attachment procedure remains subject to the lex fori<\/em>, the French court may, as regards the substantive conditions, take account of the lex navis<\/em>, This is particularly true because of the close link between the law of seizure and the law of maritime liens, which is often governed by the law of the flag. A case-by-case analysis by an expert lawyer is therefore crucial in devising the most appropriate strategy.<\/p>\n

Determining the law applicable to a ship arrest is a technical exercise that requires a detailed analysis of the facts and an in-depth knowledge of international conventions and conflict of laws rules. Our firm is at your disposal to analyse your situation and defend your interests. Please do not hesitate to contact our lawyers specialising in ship seizures<\/a> for tailor-made support.<\/p>\n

Sources<\/h2>\n
    \n
  • Brussels Convention of 10 May 1952 for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships<\/li>\n
  • Transport Code (in particular articles L. 5114-21 to L. 5114-29)<\/li>\n
  • Code of civil enforcement procedures<\/li>\n
  • Civil Code<\/li>\n
  • Cass. com., 13 September 2023, no. 20-21.546<\/li>\n<\/ul>","protected":false},"excerpt":{"rendered":"

    La saisie conservatoire d’un navire est une proc\u00e9dure redoutable pour le cr\u00e9ancier qui cherche \u00e0 s\u00e9curiser sa cr\u00e9ance. Elle entra\u00eene l’immobilisation d’un actif de grande valeur, souvent au c\u0153ur de l’activit\u00e9 \u00e9conomique de son propri\u00e9taire. Toutefois, le caract\u00e8re international du transport maritime engendre une complexit\u00e9 juridique singuli\u00e8re. D\u00e9terminer le droit applicable \u00e0 une telle mesure […]<\/p>\n","protected":false},"author":1,"featured_media":16318,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[4,11],"tags":[],"class_list":["post-16313","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-voies-dexecution","category-saisie-de-navire"],"acf":[],"_links":{"self":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/posts\/16313","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/comments?post=16313"}],"version-history":[{"count":2,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/posts\/16313\/revisions"}],"predecessor-version":[{"id":17436,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/posts\/16313\/revisions\/17436"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/media\/16318"}],"wp:attachment":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/media?parent=16313"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/categories?post=16313"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/tags?post=16313"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}