Based on the rulings of September 14, 2010, and October 14, 2010
- Applicable law to maritime liens and mortgages
- Strict interpretation of maritime liens
1. Applicable law to maritime liens and mortgages
Concerning maritime liens and mortgages granted abroad, we must distinguish between the constitution and validity of the security governed by the law of the contract (lex causae), and the conditions for executing liens and mortgages, governed by the law of the place of seizure (lex arresti).
Note that the Brussels Convention of 1926 on maritime liens and mortgages, which invites judges to respect securities granted abroad, is only applicable to the seizure of a ship flying the flag of a contracting state.
Regarding creditor ranking, French case law ensures the supremacy of maritime liens over mortgages, a principle adopted internationally. Occasionally, lower courts apply the lex arresti without verifying if liens valid under lex causae are also valid under lex arresti, a point potentially leading to significant implications.
2. Strict interpretation of maritime liens
Regarding ship arrest, French law has a dual character. It includes international provisions of the Brussels Convention of May 10, 1952, applicable in France since February 24, 1956, and national rules under Law No. 67-5 of January 3, 1967, and Decree No. 67-967 of October 27, 1967. Maritime privileges require strict interpretation, exemplified by Article L.5114-8, 6° of the French transportation code.
An essential issue is whether the owner can oppose ship seizure by claiming they are not the debtor. The Court of Appeal of Nouméa ruled that maritime liens attach to the ship itself, not necessarily dependent on the owner’s personal debt. Thus, creditors of a charterer may arrest the ship if they invoke a valid maritime lien.
a) An alleged claim
The first condition to invoke a maritime lien is easily fulfilled; it suffices to invoke the appearance of a debt. Unlike general liens, urgency is not required, and commercial contexts do not impose strict evidentiary rules such as those in Article 1341 of the Civil Code concerning written proof.
b) Expenses undertaken by the master for real ship needs
The second condition is more nuanced. According to Article L.5114-8, 6° of the transportation code, expenses incurred by the ship’s master for genuine needs create a maritime lien. These services must be ordered by the master outside the ship’s registry port, reflecting statutory powers and a prior contractual commitment. Many operations fall outside this lien due to this requirement.
Judicial interpretations affirm this strict criterion. For example, merely stamping and signing bills, while proving service execution, does not constitute proof of an order by the ship’s master, necessary for lien validity.
Maritime liens, as with all liens, require strict interpretation adhering precisely to legislation. Maritime laws do not resolve all complexities; for example, is it justifiable that only claims by a ship’s consignee, despite limited authority compared to shipping agents, enjoy privileged status?