Vessel seizure

Our firm specialises in French and international proceedings, and has recognised expertise in proceedings that are out of the ordinary, whether they involve the seizure of exceptional intangible personal property(seizure of taxi licences, seizure of a licence for a public house, or seizure of trademarks or domain names...) or exceptional tangible personal property(seizure of aircraft or helicopters, seizure of barges or boats).

We are regularly called upon to assist our creditor clients throughout Europe to carry out or have carried out the seizure of vessels, whether they fly the French or foreign flag.

This is an opportunity to give a brief explanation of the procedure as we are implementing it:

Since¹ December 2010, the texts governing the seizure of vessels have been codified in the Transport Code.

The texts governing the seizure of ships are therefore to be found not only in the Transport Code but also in the Brussels Convention of 10 May 1952.

What's a ship?

Article L5000-2 of the Transport Code gives a definition of a vessel, which makes it possible to distinguish it from an inland waterway vessel:

1. - Unless otherwise provided, for the application of this Code, the following are referred to as ships:1° Any floating craft, constructed and equipped for commercial, fishing or pleasure boating and assigned to this purpose;2° Floating craft constructed and equipped for maritime navigation and assigned to public services of an administrative, industrial or commercial nature.II. Unless otherwise provided, the provisions of this Code do not apply to French or foreign warships. Are considered as warships all vessels undergoing trials or in service in the French Navy or a foreign navy.

It should be noted that article L5000-1 specifies that surface or submarine navigation at sea is governed by these provisions. Consequently, a civilian submarine is considered to be a ship.

The procedure for the seizure of a vessel is a special and little-known procedure that is at the estuary of the ordinary law seizure of movable property and the seizure of real property. It is also an extremely efficient procedure.

In the first instance, we will focus on the seizure of property procedure:

As is the general principle for protective attachments, they may be carried out without an enforceable title, with the authorisation of the court, but also, as in movable property matters, a creditor may have a protective attachment carried out without the authorisation of the court when he avails himself of an unpaid cheque, an unpaid rent under a contract of lease of immovable property, or an enforceable title.

Article L5114-22 states that:

Any person whose claim appears to be well-founded in principle may apply to the court for authorization to carry out the precautionary seizure of a vessel.

And article R5114-15 of the transport code also provides for

The conditions under which ships may be subject to precautionary seizures shall be governed by the general provisions of the Code of Civil Enforcement Procedures, subject to the application of international conventions and the specific provisions of this subsection.

On the other hand, the court competent to authorise the measure is that of the place of enforcement of the measure, by way of derogation from the general principle laid down in Article R511-2 of the Code of Civil Enforcement Procedures.

Once authorisation has been obtained from the enforcement judge or the President of the Commercial Court if necessary, the bailiff shall personally go to the se aport in order to proceed with the sequestration, giving precise details of the vessel, in particular its name, tonnage, home port and nationality.

At the same time, we notify the harbour master's office of the seizure, in order to make it impossible to move the vessel.

Just as in the case of the precautionary seizure of aircraft, the precautionary seizure of a vessel prevents any movement of the vessel.

Unless the seizure has been regularised by virtue of an enforceable title, the creditor must take the necessary steps to obtain an enforceable title within one month.

As we have seen, the writ of arrest is an act which allows us toact by surprise, to avoid the disappearance of the vessel. That is not the case with seizure and execution, which must be preceded by a command, which is why we have the habit, as far as we are concerned, of having seizure and execution preceded by provisional seizure.

The seizure execution of vessel:

As seen above, the seizure execution of a vessel must necessarily be preceded by the service of a command:

Article L5114-23 of the Transport Code :
The seizure execution of a ship is preceded by the service of a command to pay.

This command must be carried out within a double time limit: at least 24 hours before the seizure (24 full hours, not 1 day, which is why we time stamp our actions), and a maximum of 10 days before.

Note that this command must necessarily specify that seizure of the vessel is being considered.

Therefore, the owner of a vessel has in fact 24 hours to put the vessel out of reach of the bailiff, for example by reaching a foreign port.

Fortunately, to counter this, we have a structured network of enforcement agents (judicial officers and others) throughout Europe. We also have experience in this matter and we proceed to the provisional seizure, making any movement of the vessel prohibited.

Once the time limit has expired, we will proceed with the seizure. Again, we give precise details of the vessel, including its name, type, tonnage and nationality, as well as a description of its rowboats, canoes, tackle and other ship's gear, provisions and bunkers.

This act shall be notified to the harbour master's office in order to avoid any displacement.

Special case of a vessel flying a foreign flag :

Our firm has become a specialist in foreign debt collection. In the particular case of ships, it is not uncommon for a ship, whether or not belonging to a foreign national, to fly a foreign flag.

Reminder: The term flag has two meanings:

• the first material is the national flag carried on the back of the ship;
• the legal mate; it designates the nationality of attachment of the vessel, that in which it is registered and to which it belongs, in particular on the high seas.

Many French people sail under the Belgian or Dutch flag, which allows them to free themselves from slightly more restrictive French regulations, even though the law on the Blue Economy of June 2016 has made it compulsory for French people, even those flying foreign flags, to comply with French obligations as soon as they enter French territorial waters.

For information purposes only, it should be noted that the Belgian flag makes it possible, for example, to sail without any notion of category, whatever the equipment and type of boat, to adapt one's safety equipment without obligation or constraint , or to pilot a motor boat without a licence in the maritime domain.

These reasons explain the large number of foreign flags.

In the specific case of the seizure of a vessel flying a foreign flag, this simple foreign element obliges us to act also at the consular or diplomatic level by handing over the act of seizure to the consul of the State whose flag the vessel is flying or (if the State does not have a consul), a diplomatic representative of the State.

These elements are carried out by us within three days of the seizure, then we proceed with the registration on the special register held by the Registrar of Maritime Mortgages, if the vessel is French-flagged (if it flies the French flag).

Where the vessel is not French-francised, the act of seizure shall be entered in the special register kept at the maritime mortgage registry with territorial jurisdiction over the place of seizure.

Once these steps have been taken, the sale procedure can be initiated. It is the Enforcement Judge who is seized by writ of summons, who sets the date of the adjudication hearing.

We put our expertise at the service of our clients to ensure a quick seizure of the vessel, anywhere in France or Europe.

Feel free to question us.