Based on the ruling of 27 May 2010
- The origin of the claim: basis of the arrest
- Contestation of the arrest
1) The Origin of the Claim: Basis of the Arrest
According to Article 2 of the Brussels Convention of 10 May 1952 on the arrest of sea-going ships applicable between Contracting States:
“A ship flying the flag of one of the Contracting States may be arrested in the jurisdiction of any of the Contracting States in respect of any maritime claim.”
Under Article 1, a maritime claim “means a claim arising out of one or more of the following: […] (o) disputes as to the title to or ownership of any ship.”
For such a claim and in accordance with Article 3 of the Convention, the only vessel which could be arrested is the one concerned by the claim or debt.
Once a claimant invokes such a claim, the judge must verify whether the claim fits one of the causes listed in the Convention—without having to assess the seriousness or certainty of the claim.
In the ruling of 27 May 2010, the Court of Appeal specified that a claimed debt is considered a maritime claim concerning the ship seized in the hands of its current owner
if the liquidators of a company indicate that the company itself paid sums to acquire it.
This is valid only if the claim concerns the ship itself, not the financial transactions related to its acquisition.
In the reported case, the debt did not qualify as a maritime claim because there was no direct link with the ship. Therefore, it could not serve as a valid basis for an arrest.
2) Contestation of the Arrest
Article 4 of the aforementioned Convention states:
“A ship may only be arrested under the authority of a Court or of the appropriate judicial authority of the contracting State in which the arrest is made.”
The term “arrest” refers to the immobilization of a ship with the authorization of the competent judicial authority, in order to secure a maritime claim.
Article 6 adds:
“The rules of procedure relating to the arrest of a ship, to the application for obtaining the authority referred to in Article 4, and to all matters of procedure which the arrest may entail,
shall be governed by the law of the Contracting State in which the arrest was made or applied for.”
In France, under Article 29 of the decree of 27 October 1967, the arrest of a ship is authorized by an ordinance issued by the President of the Commercial Tribunal or by the trial judge.
Article 496 of the Code of Civil Procedure provides that if a claimant’s request for arrest is refused, the claimant may appeal within 15 days.
If the request is accepted, concerned parties may contest it before the same judicial authority.