Brussels Convention of 10 May 1952
The Brussels Convention of 10 May 1952 for the unification of certain rules relating to the arrest of seagoing ships allows the arrest of a ship as a precaution to obtain guarantees against a maritime claim related to the ship. The Convention introduces an action against the ship—an action in rem—fundamental in Anglo-Saxon law. French law, however, does not allow the exercise of any right against an object but only against a person (action in personam).
The Brussels Convention is a compromise between English and continental legal systems. While Article 3-1 allows any claimant with a maritime claim to arrest the related ship, Article 6(2) provides that the procedural rules for arrest are governed by the law of the contracting state in which the arrest was made. French law, for example, does not allow creditors to seize property not owned by the debtor.
Articles 7-1 and 7-4 of the Convention require that the arresting party file a claim on the merits within a fixed time, as determined by local law. If not, the defendant may request the release of the arrest.
Liberal Conditions for Ship Arrest
The Convention favors the holder of a maritime claim. A simple allegation of a maritime claim is sufficient to obtain a ship arrest order. However, after arresting the ship, the claimant must pursue a merits case before a competent court under the lex fori (law of the forum). The Convention does not specify what legal arguments the arresting party must present in court or whether they must seek confirmation of the arrest or an enforceable title in personam against a debtor.
Challenges with In Rem and In Personam Actions
Issues arise when the debtor is not the shipowner. French law, particularly Article 215(1) of Decree No. 92-755 of 31 March 1992, requires that proceedings for an enforceable title be initiated within two months of the arrest. This reflects the French in personam approach, which contrasts with the in rem approach of the Convention. These differences lead to complex legal disputes, especially in scenarios involving charters, sub-charters, or ship sales.
Illustrative Case: Renaissance Cruises Fleet
The case involving ships from the RENAISSANCE CRUISES fleet highlights the conflict. After the company declared bankruptcy following the 11 September 2001 attacks, creditors attempted to arrest vessels in Marseille under the 1952 Convention. These ships had been sold in court-ordered auctions abroad. French courts had to determine whether arrests for claims predating the sale were valid. This ongoing litigation involves multiple levels of jurisdiction and reflects the difficulties of reconciling the Convention with French law.
Scope of the Study
This study aims to explore the conflicts between the Anglo-Saxon concept of in rem action and the continental in personam action. The analysis is grounded in conventions, legislation, jurisprudence, and doctrinal perspectives.
First Title: Arrest of Vessel – Action In Rem Dominates
Chapter I: Arrest as a Precautionary Measure
Under the 1952 Convention, a person with a maritime claim may arrest the related ship. However, the creditor must later file proceedings on the merits in accordance with local procedure to convert the precautionary title into an enforceable claim against a debtor.
Section I: Conditions Relating to the Debt
French law on ship arrest is dual in nature, combining the 1952 Convention and national laws (Law No. 67-5 and Decree No. 67-967). Under Article 2 of the Convention, arrest is permitted for any maritime claim. A mere allegation is sufficient; French courts cannot require the creditor to prove a serious and certain debt at the arrest stage.
§1. Allegation of Maritime Claim
The liberal standard of mere allegation ensures speed and efficiency in maritime arrest procedures. Courts have repeatedly confirmed that no proof of debt certainty is needed at this stage.
§2. Restrictive List of Maritime Claims
Article 1 of the Convention lists acceptable maritime claims, including damages, personal injury, salvage, charter-party disputes, cargo loss, pilotage, supplies, wages, mortgages, and ownership disputes. Claims unrelated to ship operations, like loan repayments or ship sale disputes, are generally excluded unless tied directly to the listed causes.
Section II: Conditions Relating to the Ship and Its Owner
Article 3-1 allows the arrest of the ship directly linked to the maritime claim. Article 3 also permits the arrest of other ships owned by the same debtor at the time the claim arose. This creates a hybrid of in rem and in personam principles.
Single Ship Companies (SSCs) are often used to avoid exposure of multiple ships to arrest. Courts require strong evidence—like a lack of independence or shared assets—to pierce the corporate veil and allow cross-arrest across companies.
Section III: Rules of Procedure of Arrest in France
Article 4 of the Convention states that only competent courts may authorize arrests. Article 6(2) adds that local laws govern the procedures. In France, under Article 29 of the Decree of 27 October 1967, arrest is authorized by an order issued upon request by the President of the Commercial Court or a trial judge.
The application must be reasoned and seek the application of the 1952 Convention alone—not French domestic arrest law. The judge must state the arrest amount and the deadline to initiate proceedings on the merits. Arrest is executed by a judicial officer where the ship is docked, and no publication is required unless it’s an enforcement seizure.
Legal and Financial Effects
Arrest does not transfer ownership but prevents departure. The owner remains liable for ship maintenance costs. Courts have ruled that damages due to lack of maintenance during arrest are not attributable to the arrest unless clearly proven. Port authorities are notified to deny clearance. Temporary departures may be allowed if a sufficient guarantee is posted.
Once an arrest is made, creditors must fulfill all procedural obligations to maintain its validity. Appeals against arrest refusal must be made within 15 days. If granted, affected parties may challenge the order. The judge who authorized the arrest remains competent to lift it.
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