The immobilisation of a vessel in port, whether it be merchant vessels or pleasure craft, is much more than a simple logistical incident: it is an immediate economic paralysis whose daily cost can be exorbitant. While protective attachment is a formidable weapon for unpaid creditors, its use is not without major legal risks. When it is used without serious grounds, excessively or with malicious intent, it can be classified as abusive by the French courts.
Our office in Marseille regularly observes that there is a fine line between legitimate defence of a claim and abuse of rights. To understand this risk properly, it is necessary to place the measure in the specific context of the legal regime for ship seizures, which derogates significantly from ordinary law in order to meet the speed requirements of international maritime transport.
Legal framework and concept of abusive maritime seizure
The seizure of a vessel differs from land-based enforcement measures in that it is economically violent: its purpose is not simply to freeze a financial asset, but to block the debtor's own work tool, which is often in full operation or about to be put into operation. leave port. This specificity imposes greater responsibility on the distraining creditor.
Definition and legal basis of wrongful seizure
In legal terms, wrongful seizure is defined as the exercise of a legal remedy - in this case the precautionary seizure of the vessel - under wrongful conditions causing prejudice to the owner. It is essential to understand that the mere fact that a seizure is released (cancelled) by the judge is not automatically sufficient to engage the seizing party's liability. The failure of the procedure is not equivalent to fault. L’object of the liability action is to punish a distinct wrongful conduct.
Abuse is frequently invoked, often as a counterclaim, when contesting a claim. ship arrest procedure deemed unfounded or excessive. The legal basis for this liability lies in the general principles of civil liability (article 1240 of the French Civil Code), in conjunction with international conventions, in particular the European Convention on Human Rights. Brussels Convention 1952 which governs the matter.
Distinction between fault, negligence, gross negligence or recklessness
In order to hold a creditor liable, the French courts require proof of qualified fault. Case law has refined the contours of this fault, which goes far beyond a simple error of legal assessment.
L'malice aforethought is the most obvious form of abuse. It occurs when seizure is carried out solely to exert unfair pressure, without any real prospect of recovery, or to damage the shipowner's commercial reputation. However, misconduct may also be characterised by a blameworthy lightness. This is typically the case when a creditor seizes a vessel without first checking essential and accessible information, such as the actual identity of the owner or the existence of a retention of title clause, whereas it was easy to do so before the implementation of the measurement.
La recklessness or serious imprudence are also punishable. For example, maintaining a seizure when the debtor has offered a serious and sufficient bank guarantee may constitute a fault giving rise to damages. Judges will punish unreasonable obstinacy and disproportionate use of coercion.
Applicable law and jurisdiction
Determining the law applicable to liability for wrongful seizure is a strategic issue, as systems vary widely from one country to another. Under Article 6 of the 1952 Brussels Convention, disputes relating to the distrainor's liability for damage caused by a wrongful seizure are governed by the law of the country where the seizure took place. following seizure are governed by the law of the State in whose jurisdiction the seizure was made (lex fori).
In practical terms, if a vessel is seized in a French port (Le Havre, Marseille, Dunkirk, etc.), it is the domestic law which applies to determine whether the seizure is abusive, whether the vessel is flying the flag of an contracting state or not. Competence belongs to the court of the place of seizure. It is the Enforcement Judge (JEX) or the President of the Tribunal of Commerce, which generally has jurisdiction to settle the dispute and award any damages. However, a obstacle may arise if an arbitration clause is binding on the parties, although jurisdiction for protective measures remains with the state.
Criteria and case law illustration of abuse of seizure
The assessment of abuse remains a question of fact left to the sovereign judgement of the trial judges. However, an analysis of case law shows that there are recurring objective criteria used to punish dishonest creditors, in particular when the nature of the claim is questionable.
Proportionality review of seizures
A central criterion is the manifest disproportion between the amount of the alleged claim and the value of the detained vessel. Seizing a merchant vessel worth tens of millions of euros to secure a modest claim may be considered abusive. The creditor has other, less damaging means. Abuse often stems from the failure to confine the seizure where this was possible, or from the refusal to accept a substitute guarantee.
In addition to maritime law, the courts apply the principle of proportionality in enforcement to assess whether the attachment is justified. However, case law is pragmatic: if the vessel is the only asset of the debtor that can be seized in France, the seizure can be validated despite the disproportion, provided that it is not vexatious. Visit application of the agreementa simple allegation may be sufficient to seize a maritime claim, but under domestic law, the a claim that appears to be well-founded in principle is required.
The Sedov and Bering Wind case: analysis of the circumstances of the abuse
Some emblematic decisions illustrate the characterisation of abuse by the factual circumstances of the seizure. The Russian sail training ship case Sedov (Rennes Court of Appeal, 2002) is particularly enlightening. In this case, the seizure was carried out in the middle of a prestigious sailing event, with intense media coverage.
The judges held that the creditor had «deliberately sought, through this highly publicised procedure, to put pressure on his debtor», thereby diverting the protective purpose of the measure. Similarly, in the Bering Windthe Commercial Chamber of the Court of Cassation, in its decision of 23 April 2013, confirmed that the distrainer could be held liable for unjustifiably keeping the vessel detained beyond a reasonable period. This judicial decision underlines the importance of the speed with which requires maritime matters.
Impact of corporate structures on the classification of abuse
Maritime transport frequently uses «single ship companies» to compartmentalise risks. Creditors often try to circumvent this screen by seizing a ship belonging to a company in the same group as their debtor (sister ships). However, the seizure of a vessel that does not directly belong to the debtor is an area ripe for classification as an abuse, especially if it is a vessel flying the flag from a third country.
Although the 1952 Convention sometimes allows the seizure of another vessel belonging to the same owner, the French courts are strict: seizing a subsidiary's vessel for the parent company's debt without proving the fictitious nature of the company or the confusion of assets constitutes a fault. A creditor who acts lightly, relying on the mere appearance of a community of interests without verifying the legal reality of ownership via the’state of the pavilion, the creditor is liable. Case law sanctions the artificial extension of the creditor's pledge.
Consequences and remedies for creditors in the event of wrongful seizure
Once the abuse has been established, the creditor is exposed to serious financial consequences. The aim is to make full reparation for the loss suffered by the shipowner as a result of the unjustified immobilisation of the vessel. seized vessel.
Economic loss and quantification of damages
The assessment of the loss is based on a concrete analysis of the consequences of vessel detention on the’activity commercial. Damages generally cover two distinct items:
- Losses incurred (damnum emergens) : These include unnecessary port charges, security costs, the’indemnity and salaries of thecrew (often owed by virtue of their employment contract), and the cost of fuel consumed at on board the ship.
- The loss of earnings (lucrum cessans) : This is often the largest item. It corresponds to the loss of freight or rent that the vessel would have generated if it had been able to sail. The calculation is based on the charter rate per day (hire) or on cancelled contracts.
The creation of a guarantee as a preventive measure
When faced with an abusive seizure, the priority is often to request the release of the seizure, even if it means putting up a guarantee to release the vessel quickly and allow the departure of the ship. However, the judge can also, upstream, condition the’judicial authorisation the provision of security by the distraining creditor.
This practice, provided for in the 1999 Convention and applied by the French courts, makes it possible to secure future compensation for the shipowner in the event of seizure subsequently being deemed unjustified. It is a necessary counterweight to the ease with which a order on request can be obtained, often without an initial adversarial debate. Such a solution balances the rights involved.
Legal news and recent reforms (2022-2024)
The legal environment has changed with the ordinance reforming the law on securities and the introduction of the Register of Movable Securities (RSM), which came into effect on 1 January 2022. Publication of ship seizures and maritime mortgages has been transferred from customs to the clerks of the commercial courts. The service The registry now centralises this data.
This modernisation and the’access facilitated by a website Creditors have to be even more rigorous. They must check the content of the rights registered on the vessel before proceeding with an arrest. An error in the analysis of the legal situation of the vessel would be more difficult to justify today and could be qualified as culpable negligence. The creditor must ensure that his a claim that appears to be well-founded justifies the measure and that it fulfils the basic conditions required by the commercial code or the Transport Code. Visit first place, you need to check whether the’contracting state of the flag imposes specific rules.
Lastly, it should be remembered that the protective attachment is only one stage: the creditor must imperatively take action at the bottom (or action on the merits) within the allotted time (usually one month) to obtain a enforcement order and validate the procedure, failing which it will lapse. Failing this, the transformation into a execution seizure and the sale of the vessel will be impossible. L’bailiff will then have to serve the release rather than the trial.seizure report definitive.
If you believe that you have been the victim of an unjustified detention of your vessel, or if you wish to secure your recovery procedures to avoid any abusive classification, our team of lawyers, experts in maritime law, is at your disposal. We analyse each relationship contractual and instrument to defend your interests.
Sources
- Transport Code, articles L. 5114-20 et seq (Seizure of ships).
- International Convention for the Unification of Certain Rules Relating to the Precautionary Arrest of Seagoing Ships, Brussels, 10 May 1952.
- Code des procédures civiles d'exécution (Common law on precautionary measures and enforcement)’attachment order).
- Cour de cassation, Commercial Chamber, 23 April 2013 (Bering Wind case).
- Rennes Court of Appeal, 27 June 2002 (Sedov case).
- Order no. 2021-1192 of 15 September 2021 reforming the law on securities.
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