Based on the Ruling of 29 June 2011
- An European law requirement?
- Uncertainties in the arrest of the ship procedure
1) An European Law Requirement?
According to Regulation 1346/2000 of May 29th, 2000, insolvency proceedings ordered in a Member State produce their effect in all other Member States.
Article 5 and the circular of March 17th, 2003 state that:
“The opening of insolvency proceedings shall not affect the rights in rem of creditors or third parties.”
The right in rem is, for instance, defined as:
“the right to dispose of assets or have them disposed of and to obtain satisfaction from the proceeds of or income from those assets, in particular by virtue of a lien or a mortgage”
(Article 5§2.a of the Regulation).
Article 5§3 further specifies:
“The right, recorded in a public register and enforceable against third parties, under which a right in rem within the meaning of paragraph 1 may be obtained, shall be considered a right in rem.”
Contrary to those provisions, the arrest of the ship is a preventive measure intending to stop a vessel from departing. It is a form of detention without direct legal effect on ownership.
French law confirms this by stating: “it does not infringe the right of the owner.”
Logically, the arrest of the ship is not subject to the publication requirement of Article 5. Publishing such an arrest would defeat its purpose by alerting the owner and encouraging evasion,
thus undermining its efficiency. Therefore, ship arrest is completely inconsistent with any publication formalities.
The non-application of Article 5 is also supported by other measures dealing specifically with ships in insolvency proceedings.
For example, Article 11 of the Regulation states:
“The effects of insolvency proceedings on the rights of the debtor in immoveable property, a ship or an aircraft subject to registration in a public register shall be determined by the law of the Member State under the authority of which the register is kept.”
This explains why Article 3 of the International Convention Relating to the Arrest of Sea-Going Ships (1952) does not mention publication formalities. It merely states:
“A claimant may arrest either the particular ship in respect of which the maritime claim arose, or any other ship which is owned by the person who was, at the time when the maritime claim arose, the owner of the particular ship, even though the ship arrested be ready to sail.”
As such, the summary nature of the ship arrest procedure is justified. Any formality would be burdensome and would eliminate the surprise element, which is essential to the effectiveness of the measure.
2) Uncertainties in the Arrest of the Ship Procedure
Although the ship arrest procedure may seem straightforward, many judicial uncertainties persist. Some have been resolved through case law, while others remain open due to lack of legal clarity.
a) Arrest Under Maritime Law vs. General Rules of Law
The basis and functions of ship arrest under maritime law and general civil law are similar. However, the unique nature of ships has led to their regulation under specific legal provisions,
such as the Law of January 3rd, 1967 on the status of ships. In France, Articles 29 and 30 of this law dealt with ship arrests, although Article 29 was repealed by Article 7 of Ordinance No. 2010-1307 (28 October 2010).
Under international law, the Brussels Convention of 1952 provides conditions for lifting an arrest. It states that the law of the place where the seizure occurred governs various aspects,
and that judicial authorization is required from the competent authority of the State of seizure.
Ship arrest serves as an immediate guarantee of payment. The Brussels Convention of 1952 outlines major procedural rules, while remaining issues fall under French maritime law.
However, due to the lack of coordination between these legal frameworks, judges face difficulties handling areas not clearly addressed by either international or domestic law.
The common civil procedure for seizure is ill-suited to the distinct nature of ships, making the process legally complex.
b) Arrest and Levying Execution
In France, although ship arrest and levy of execution (saisie-exécution) are distinct procedures, most levy actions begin with an arrest, as it is necessary to detain the ship first.
In common law systems, to distinguish the two procedures, different terms are used:
“arrest” refers to the French “saisie conservatoire” (preventive detention of the ship), while “attachment” corresponds to “saisie-exécution” (levy of execution).
Unlike ship arrest, the attachment process is more complex and requires legal title and guarantees to secure the transfer of ownership.
As such, it is governed by numerous provisions and used less frequently.
In conclusion, the lack of integration between arrest and execution procedures causes major legal uncertainty. Legislative intervention is strongly needed to clarify the rules and streamline the process.