Short answer. Yes, a creditor can immobilise a ship in a French port within hours, without having to show that recovery of the claim is at risk: it is enough that the claim appears well founded in principle (article L. 5114-22 of the Transport Code). Leave is granted on an ex parte application by the enforcement judge or the president of the commercial court of the port where the ship lies. The vessel may not sail until security has been provided, and the creditor then has one month to commence proceedings on the merits.
Ship arrest is the most effective weapon in maritime law because it reverses the balance of power within hours. A charterer who will not pay demurrage, an owner disputing a bunker invoice, a yard left unpaid, a shipper whose cargo arrived damaged: all have in common a debtor who is often foreign, hard to reach, and whose only accessible asset is the ship herself, in a French port for a few days. Arrest freezes that asset. It decides nothing, it secures. But it obeys precise rules, the omission of any one of which brings nullity, and it exposes the creditor to damages if it is wrongful.
1. A single condition: a claim that appears well founded in principle
Ordinary French conservatory measures require two things of a creditor under article L. 511-1 of the Code of civil enforcement procedures: a claim that appears well founded in principle, and circumstances likely to threaten its recovery. Maritime law removes the second. Article L. 5114-22 of the Transport Code provides that any person whose claim appears well founded in principle may apply to the court for leave to arrest a ship. Nothing more. The legislature took the view that the mobility of a ship is in itself the threat: a vessel sailing tomorrow for Singapore requires no further circumstance.
The difference is decisive in practice. The creditor need not prove the debtor’s insolvency, bad faith, or any scheme to organise insolvency. What must be shown is the appearance of a claim: a contract, invoices, a bill of lading, a survey report, correspondence acknowledging the debt. The judge does not examine the merits, only the plausibility. A disputed claim does not prevent arrest; an imaginary or manifestly time-barred claim does.
2. Which court, which port, which procedure
Jurisdiction lies with the court of the place where the measure is to be enforced, that is the port where the ship is or will be (article R. 5114-16 of the Transport Code). Article R. 5114-17 expressly disapplies the ordinary rule of article R. 511-2 of the Code of civil enforcement procedures, which would give jurisdiction to the court of the debtor’s domicile: for an owner domiciled in Athens or Singapore, that rule would make arrest impracticable. The creditor therefore applies to the enforcement judge of the judicial court of the port, or, under article L. 511-3 of the Code of civil enforcement procedures, to the president of the commercial court where the application is made before any proceedings on the merits and seeks to secure a commercial claim, which covers almost all maritime claims.
The application is made ex parte (article R. 511-1). It is not adversarial: the debtor is not warned, and must not be, or the ship sails. The application sets out the claim, its amount in principal, interest and costs, identifies the vessel by name, flag, IMO number, port of registry and expected position, identifies the owner, and evidences the appearance of the claim through the exhibits. In the ports where this firm acts, the order is granted the same day, sometimes within the hour where the vessel is announced for departure. The file must therefore be ready before the ship arrives.
3. Enforcement: the deed of arrest and the ban on sailing
Once the order is obtained, the arrest is carried out by a judicial officer, on board or at the harbour master’s office. Article R. 5114-18 of the Transport Code lists, on pain of nullity, the particulars of the deed: the court’s authorisation, annexed to it; the creditor’s name and address; the sum in principal, interest and costs; the address for service; the ship’s name, type, tonnage, port of registry and nationality; a statement that the ship may no longer leave port, reproducing article L. 5114-21; and notice that the debtor may challenge the arrest before the court that ordered it. A custodian is appointed and signs the deed, usually the master. The deed is served on the harbour master’s office (article R. 5114-19), which then refuses clearance.
The effect is immediate and physical. Under article L. 5114-21, a ship under arrest may not leave port save with the authorisation of the enforcement judge for one or more specified voyages, on proof of sufficient security; and where the ship has not returned to her port on expiry of the period fixed, the sum lodged as security accrues to the creditors. For an owner, every day of detention costs the equivalent of lost freight or hire, port dues, crew costs and often penalties towards charterers. It is that cost which makes arrest an instrument of rapid settlement: most files resolve within forty-eight hours through the provision of security.
4. Which ship may be arrested: the vessel concerned, a sister ship, a chartered ship
The 1952 Brussels Convention allows the arrest either of the ship to which the claim relates, or of any other ship owned by the person who was, at the time the claim arose, the owner of that ship (article 3, paragraph 1). This is sister ship arrest, invaluable where the vessel that gave rise to the claim does not return to France but another vessel of the same owner calls there. The condition is identity of ownership in the legal sense: two ships held by two distinct companies within the same group are not sister ships, and the practice of single-ship companies exists precisely to neutralise this possibility. Piercing the corporate veil remains exceptional and requires proof of a sham or of commingling of assets.
Where the claim arose against a bareboat charterer rather than the owner, article 3, paragraph 4, of the Convention permits arrest of the chartered ship herself or of any other ship owned by that charterer. By contrast, a claim against a time or voyage charterer, who has no nautical management of the vessel, does not in principle allow arrest of the owner’s ship, unless the claim is secured by a maritime lien which follows the ship into whosoever’s hands she passes: crew wages, salvage, damage done by the ship, and port dues among them. Characterising the claim and identifying the true debtor is therefore the first task, before the application is even drafted.
5. Release: bank guarantee, club letter of undertaking
The arrested debtor has two routes. He may challenge the arrest before the court that authorised it, arguing that the claim is not plausible, that the ship was not liable to arrest for that claim, or that the deed is void. Or he may, as usually happens, provide security. Article L. 512-1 of the Code of civil enforcement procedures provides that an irrevocable bank guarantee matching the measure sought brings about release, and that the court may substitute for the arrest any other measure apt to protect the parties’ interests. Article 5 of the 1952 Convention likewise provides for release of the ship against sufficient security.
In maritime practice the security often takes the form of a letter of undertaking from the owner’s P&I club. It is not a bank guarantee within the meaning of article L. 512-1 and the creditor is not bound to accept it; he accepts it where the club is of the first rank and the letter is properly drafted: an amount covering principal, interest and costs, submission to the agreed forum or arbitration, an undertaking to pay on a final decision or settlement, and no conditions precedent. The negotiation of that letter, played out within a few hours between the parties’ lawyers and the club, is where the creditor’s counsel gains the most. A poorly drafted letter, by contrast, may prove unenforceable three years later.
6. The one-month deadline and the substantive action
A conservatory arrest is provisional by nature. Article L. 511-4 of the Code of civil enforcement procedures requires the creditor, on pain of lapse, to commence proceedings capable of producing an enforceable title, and article R. 511-7 fixes the period at one month from enforcement of the measure. If that month passes without a writ on the merits or without commencement of the arbitration provided for in the contract, the arrest lapses, and with it the security given for release where it was so conditioned.
Before which forum? Article 7 of the 1952 Convention confers jurisdiction on the courts of the State where the arrest was made in a number of cases, notably where the claimant has his habitual residence or principal place of business there, where the claim arose there, or where it concerns the voyage during which the arrest was made. But most maritime contracts contain an arbitration clause, often London, or a jurisdiction clause. Arrest is no obstacle: it is compatible with arbitration, and it is the commencement of the arbitral proceedings within the month that preserves the measure.
7. The creditor’s risk: wrongful arrest
The speed of the measure has a counterpart. Under article L. 121-2 of the Code of civil enforcement procedures, the enforcement judge has power to order the release of any unnecessary or abusive measure and to award damages against the creditor for wrongful arrest. An arrest founded on a non-existent claim, levied on a ship not liable to arrest, or maintained after a satisfactory offer of security, exposes the creditor to compensating the detention of the vessel: port dues, lost hire, penalties towards charterers, demurrage. On a commercial vessel those figures run into tens of thousands of euros a day.
There is a second, quieter risk. The amount fixed in the order governs the security the debtor must post to obtain release. Overstating it invites reduction and damages; understating it deprives the creditor of part of his security. Good practice is to quantify the principal precisely, add interest over the likely duration of the dispute, and include a reasonable provision for costs.
8. How long it takes, and what it costs
A well-prepared arrest unfolds in three stages. Preparation, ahead of the call: identifying the vessel and her owner, characterising the claim under the 1952 Convention, assembling the exhibits, drafting the application. Enforcement, on the day of the call: order, deed of arrest, service on the harbour master, within a few hours. Resolution, in the following forty-eight hours: negotiation of security, release, and commencement of the substantive action within the month. Costs comprise fees, the judicial officer’s charges and, where applicable, custodianship; they bear no comparison with the claim secured, and are generally recovered on the merits.
The counterpart of that efficiency is a short window. A commercial vessel stays in port between twelve and forty-eight hours. A creditor who waits for the call to instruct counsel misses it. The right reflex is to prepare the arrest as soon as the claim is certain and the debtor stops replying, and then to monitor the movements of the vessel and of her sister ships.
Is a vessel belonging to your debtor due in a French port? The file is prepared before the call, not during it. An initial discussion establishes whether the claim supports an arrest and fixes the amount.
Frequently asked questions
Must a creditor prove that recovery of the claim is threatened in order to arrest a ship?
No. Unlike the ordinary rule in article L. 511-1 of the Code of civil enforcement procedures, article L. 5114-22 of the Transport Code requires only a claim appearing well founded in principle. The mobility of the ship takes the place of the threat.
Can a ship be arrested for a claim against the charterer?
If the charterer is a bareboat charterer, yes, under article 3, paragraph 4, of the 1952 Brussels Convention. For a time or voyage charterer, the owner’s ship is in principle liable to arrest only where the claim is secured by a maritime lien which follows the vessel.
How long does the ship remain detained?
Until sufficient security is provided: an irrevocable bank guarantee, which brings release as of right under article L. 512-1 of the Code of civil enforcement procedures, or a P&I club letter of undertaking accepted by the creditor. In practice most arrests are lifted within forty-eight hours.
What happens if the creditor takes no action on the merits after the arrest?
The arrest lapses. Article R. 511-7 of the Code of civil enforcement procedures requires proceedings on the merits to be issued, or the contractual arbitration to be commenced, within one month of enforcement of the measure.
Does a wrongful arrest engage the creditor’s liability?
Yes. Article L. 121-2 of the Code of civil enforcement procedures allows the enforcement judge to order release of an abusive measure and to award damages against the creditor, covering the cost of detaining the vessel.
Further reading: maritime litigation, maritime contracts and which regime applies, general average.
Written by Hervé Guyader, avocat at the Paris Bar, doctor of law. This content is general information and is no substitute for advice on your own matter.