Ship Arrest in France: Conditions, Procedure and Counsel

A ship never stays in one place long enough for a creditor to take his time. That is the whole point of ship arrest: immobilising, within hours and before departure, the only tangible asset of an owner or charterer often domiciled on the other side of the world, whose remaining assets lie beyond the reach of any French enforcement. The measure is blunt and remarkably effective; for a shipper, a cargo underwriter or an unpaid bunker supplier, it remains the most persuasive instrument in maritime litigation. Arrest does not punish an owner for what he owes: it prevents him from leaving before anyone has been able to ask.

A claim that appears well founded in principle is enough

Article L. 5114-22 of the French Transport Code sets a deliberately low threshold: any person whose claim appears well founded in principle may apply to the judge for leave to arrest a vessel. Conclusive proof of the debt is not required, that being a matter for the merits; what must be shown is a serious appearance of right. A bill of lading, an unpaid bunker invoice, a survey report or a demurrage statement will usually satisfy the judge. This deliberately modest evidentiary threshold is precisely what makes the remedy so powerful, and also why it is so often poorly prepared by creditors who rush to court without documenting, even summarily, the amount claimed.

The application is made to the enforcement judge of the place where the vessel lies, by way of ex parte petition, without prior adversarial debate. Surprise is the very condition of effectiveness: warning the owner would simply give him time to sail before the bailiff arrives. Nothing moves faster than a ship casting off.

Once leave is granted, the deed of arrest must comply, on pain of nullity, with the strict requirements of article R. 5114-18: precise identification of the vessel (name, type, tonnage, port of registry and nationality), reference to the judicial authorisation annexed to the deed, the amount claimed in principal, interest and costs, the creditor’s address for service within the jurisdiction of the competent enforcement judge, and a reminder of the prohibition on leaving port under article L. 5114-21. A ship keeper is appointed and signs the deed. Omitting a single one of these particulars exposes the arrest to annulment, and the careless creditor to damages for wrongful arrest.

Detained, unless sufficient security is provided

An arrested vessel may not leave port save with leave of the enforcement judge for one or more specified voyages, upon proof of sufficient security (article L. 5114-21 of the Transport Code). In practice that security takes the form of a bank guarantee or, more commonly in liner trades, a letter of undertaking from the owner’s protection and indemnity club, whose solvency the market generally presumes. If the vessel authorised to sail fails to return within the period fixed by the judge, the sum lodged as security accrues to the creditors, subject to the operation of insurance where the casualty is covered. It is this substitution mechanism, security against detention, that the parties’ lawyers almost invariably negotiate in the hours following the arrest, rather than waiting for the merits to be decided.

The arrested party is not without recourse. It may challenge the arrest and the conditions of its execution before the judge who ordered it, usually by way of an application to set aside. The debate, adversarial this time, will turn on the apparent merits of the claim, the formal regularity of the deed, or the disproportionate character of the measure having regard to the sum actually claimed.

A convention framework shared among maritime States

France is a party to the Brussels Convention of 10 May 1952 for the unification of certain rules relating to the arrest of seagoing ships, which lists the maritime claims giving rise to arrest and harmonises, among contracting States, the conditions under which a foreign flag vessel may be detained in a French port and conversely. A more recent convention, adopted in Geneva on 12 March 1999, updates that regime in the States that have ratified it; its interaction with the 1952 text must be verified case by case according to the vessel’s flag and the States involved. Many creditors in a hurry skip this step, wrongly: the vessel’s nationality directly governs the applicable convention regime, and therefore the nature of the claims that permit arrest.

Based in Paris, the firm acts in all French ports, from Le Havre to Marseille and from Nantes-Saint-Nazaire to Antibes, as well as before the Chambre arbitrale maritime de Paris, and works in English with shipowners, P&I clubs and foreign counsel.

Typical cases handled

The situations below are illustrative, anonymised scenarios. They show when the firm steps in and what the work consists of.

A vessel in port, an unpaid claim

A bunker supplier holds an unpaid invoice of 300,000 dollars; the vessel is expected at Le Havre. The firm prepares the arrest application and obtains the order before departure.

Release against security

Your client’s vessel is arrested for a disputed claim. The firm negotiates a P&I club letter and obtains release within forty-eight hours.

Wrongful arrest and liability of the arresting party

An arrest based on a non-existent claim immobilised a vessel for four days. The firm pursues the arresting party for the detention loss.

A vessel is sometimes arrested for a debt of its previous owner. The buyer who faces this had usually skipped one step: the pre-acquisition due diligence that traces maritime liens before the sale.

Frequently Asked Questions

Must the claim be conclusively proved to obtain an arrest?

No. Under article L. 5114-22 of the French Code des transports, a claimant whose claim appears well founded in principle may ask the court to authorise a conservatory arrest. No enforceable title, no judgment and no award are required: a serious appearance of a claim is enough, and the application is heard without the shipowner being present, which is what makes the remedy so fast. The counterpart is strict. A file built on a speculative claim, or aimed at the wrong vessel, exposes the arresting party to damages that regularly exceed the sum claimed, because a detained ship costs tens of thousands of euros a day in hire, bunkers and crew.

Which court hears the application?

The application is made where the vessel lies, to the enforcement judge or to the president of the commercial court depending on the basis relied on, which means the port of call decides the forum rather than the parties’ contract. That has a practical consequence worth anticipating: an arrest is available in France even where the underlying contract is governed by English law and contains a London arbitration clause, since the arrest secures the claim without deciding it. The merits then return to the agreed forum, and the security obtained in France follows the claim there.

Can the arrested vessel sail again?

Yes, as soon as sufficient security is put up. Release is normally obtained against a bank guarantee or a P and I club letter of undertaking covering the claim, interest and costs. The wording is negotiated, and it matters more than the amount: the guarantee should name the right forum, the right law and the right beneficiary, and it should not expire before the merits are decided. Where the parties cannot agree, the judge fixes the security and orders release. Because a ship under arrest costs money to everyone involved, that negotiation usually takes days rather than weeks, and it is often the moment when the dispute settles.

Can a vessel be arrested when it does not belong to the debtor?

Sometimes. The 1952 Brussels Arrest Convention allows the arrest of the ship to which the maritime claim relates and, for certain claims, of a sister ship in the same ownership. The test turns on ownership when the claim arose and when the arrest is sought, not on the identity of the charterer or the manager. Single ship companies exist precisely to defeat that test, so the exercise is one of proof: registry extracts, corporate records, shareholding, and sometimes an argument that the structure is a sham. The point is researched before the application is filed, because it cannot be improvised at the hearing on release.

How can a wrongful arrest be challenged?

By applying to the judge who made the order, who may withdraw or amend it. The shipowner will argue that the claim is not maritime within the meaning of the convention, that it is not well founded in principle, that the vessel is not the right one, or that material facts were withheld when the application was made without a hearing. Success does not only free the ship: it opens a claim in damages covering hire, bunkers, crew, charterparty exposure and, where established, the loss of a fixture. French courts award those sums where the arrest is shown to have been abusive.

How quickly can an arrest be obtained, and what does it cost?

An order is usually obtained within a few hours to two days, and the arrest is then served on board by a commissaire de justice and notified to the port authority. The direct cost is modest compared with the leverage gained: court fees are low, and the main items are counsel, the enforcement officer and, where detention runs on, the port’s own charges. The real exposure sits on the other side of the balance sheet. Because a wrongful arrest can be very expensive, the decision to proceed is a legal assessment of the claim rather than a commercial reflex, and it is best taken before the ship berths.