A ship calling at a French port can be immobilised by protective arrest on a claim that merely appears well founded in principle, with no exequatur of the foreign judgment establishing it. Exequatur becomes necessary only to move on to execution and sale. The workable sequence is therefore to arrest first and obtain recognition afterwards.
A Singapore charterer obtained a High Court judgment against a Greek owner for 1.8 million dollars in demurrage and damages. The owner has paid nothing and owns nothing in Singapore. One of his bulk carriers, however, is due at Fos-sur-Mer in eleven days to load steel. The charterer wants to know whether that ship can be immobilised on arrival, on the strength of the Singapore judgment alone, and what he will then have to do to be paid.
The answer turns on a distinction foreign creditors rarely know: in French law, immobilising a ship and realising a ship do not follow the same regime. The first is a protective measure, open to anyone showing a claim that appears well founded in principle, and a foreign judgment makes it almost unanswerable. The second requires an enforceable title, that is exequatur of the judgment or recognition as of right of a European decision. This page sets out both stages, the maritime claim required by the Brussels Convention of 1952, the application to be filed before the call, release against security, forced sale, and the situations that complicate the exercise.
1. Two regimes that build on each other: immobilising the ship, then selling her
The Transport Code devotes a separate section to ship arrest, articles L. 5114-20 to L. 5114-29, and refers for the remainder to the Code of Civil Enforcement Procedures. Protective arrest is defined by article L. 5114-22 in a single sentence: any person whose claim appears well founded in principle may seek leave from the judge to levy a protective arrest on a ship. No enforceable title, no final decision and no exequatur are required. The regulatory part states that such arrests follow the general rules of the Code of Civil Enforcement Procedures, subject to international conventions and to the rules specific to ships (article R. 5114-15), and that the competent judge is the judge of the place where the measure is to be carried out (article R. 5114-16), by way of derogation from the general rule pointing to the judge of the debtor’s residence, expressly set aside for ships (article R. 5114-17). The creditor therefore applies to the judge of the port of call, wherever the owner is domiciled.
The effect of the arrest is described in article L. 5114-21: the ship may no longer leave the port, save with leave of the enforcement judge for one or more specified voyages, on proof of sufficient security. That immobilisation is what gives the measure its force. A bulk carrier or a container ship held alongside costs her operator, in port charges, charter penalties and lost freight, sums that within a few days often exceed the claim itself. Most ship arrests never reach a sale: they are resolved by a bank guarantee or a letter of undertaking from the owner’s protection and indemnity club, in return for release.
Sale belongs to execution, which is preceded by a formal demand for payment (article L. 5114-23), ordered by a judgment setting the reserve price and the conditions (article L. 5114-24), and carried out by public auction before the judge, unless the court orders a sale elsewhere, before a notary, through a broker or in the port (article L. 5114-25). The demand for payment presupposes an enforceable title, which the Singapore judgment is not in France. That, and only that, is where exequatur becomes indispensable.
2. The maritime claim, a condition laid down by the Brussels Convention of 1952
France is a party to the International Convention Relating to the Arrest of Sea-Going Ships, signed at Brussels on 10 May 1952. Where the ship flies the flag of a contracting State, as Greece, Malta, Cyprus, Panama, Liberia and most commercial flags do, the convention prevails over domestic law and permits arrest only for a maritime claim within the list in its article 1. That list covers the essentials of the operation of a ship: damage caused by the ship, in particular by collision, loss of life and personal injury, salvage, charterparties and contracts for the use of the ship, contracts for the carriage of goods, loss of or damage to goods, general average, towage, pilotage, supplies to the ship, construction, repair and equipment, crew wages, master’s disbursements, disputes as to ownership or co-ownership, and ship mortgage.
A foreign judgment does not escape that condition: what is arrested for is not the judgment but the claim it establishes. A judgment for demurrage or unpaid freight, a judgment awarding compensation after a collision, an arbitral award on a charterparty, all fall within the list. A judgment ordering the owner to repay a bank loan unconnected with the ship, or to pay brokerage commission on the sale of another unit, does not, and a ship flying the flag of a contracting State cannot be arrested protectively on that basis. Checking the nature of the claim is therefore the first task, before any application, and it is done from the operative part and the reasons of the foreign judgment, not from its title.
Where the ship flies the flag of a non-contracting State, article 8 of the convention allows arrest both for a maritime claim and for any other claim permitting arrest under the law of the forum, and French law then resumes its full scope: article L. 5114-22 is content with a claim appearing well founded in principle, whatever its nature. The flag of the target ship therefore governs the analysis, and it is checked before the call against maritime databases and the register of registration.
3. Which ship to arrest: the ship concerned, the sister ship, the chartered ship
The 1952 Convention permits the arrest of the ship to which the claim relates but also, under its article 3, of any other ship owned by the person who was the owner of the first when the claim arose. This is sister ship arrest. It is valuable where the ship at the origin of the claim has been sold or no longer calls at French ports, provided the owner is legally the same, which is far from given in a fleet where each unit sits in a separate company. French case law lifts the veil between companies of one group only where sham or commingling of assets is demonstrated, and common management is not enough.
Where the claim arose against a bareboat charterer, the convention allows the arrest of the chartered ship or of any other ship owned by that charterer, but not the owner’s other ships. Where the debtor is a time or voyage charterer, the question is more delicate, and arresting a ship owned by someone who is not the debtor exposes the creditor to swift release and to liability for wrongful arrest. The foreign judgment helps here in that it identifies the debtor precisely; it does not dispense with checking who owns the target ship on the day of the arrest.
4. The application before the call: judge, documents, order, deed of arrest
The competent judge is the enforcement judge of the place where the measure will be levied, that is of the port of call (article R. 5114-16 of the Transport Code and article L. 511-3 of the Code of Civil Enforcement Procedures, which reserves the jurisdiction of the president of the commercial court for a commercial claim before any proceedings). The application is filed before the ship arrives, as soon as the call is known, and it is examined without the owner being heard. It sets out the claim, producing the foreign judgment and its translation, the maritime nature of that claim under the 1952 Convention, the identity and flag of the ship, her expected date of arrival, and the amount for which arrest is sought, in principal, interest and costs.
The deed of arrest is drawn up by a commissaire de justice and must contain, on pain of nullity, the reference to the judge’s leave and a copy of it, the identity of the creditor, the sum claimed, an address for service, the name, type, tonnage, port of registry and nationality of the vessel, a statement that the ship may no longer leave the port together with the text of article L. 5114-21, and a statement that the debtor may challenge the arrest before the judge who ordered it (article R. 5114-18). A keeper is appointed and signs the deed. The deed is notified to the harbour master’s office (article R. 5114-19), which makes the immobilisation effective, and the arrest is published in the ship’s register (article R. 5114-19-1).
Two periods then run against the creditor. The arrest must be notified to the debtor within eight days. And, unless he already holds an enforceable title, the creditor must within one month commence proceedings capable of producing one, on pain of lapse (articles L. 511-4 and R. 511-7 of the Code of Civil Enforcement Procedures). For the holder of a foreign judgment, those proceedings are the exequatur action before the judicial court, or the exequatur application where an arbitral award is concerned. Article 7 of the 1952 Convention does allow the court of the place of arrest to hear the merits in several cases, but where the merits have already been decided abroad, it is the recognition of that judgment which constitutes the proceedings to be commenced.
5. Release against security, and the risk of wrongful arrest
An owner who wants his ship to sail has two routes. He may challenge the arrest before the judge who authorised it, arguing that the claim is not maritime, that it is not well founded in principle, that the ship does not belong to the debtor, or that the measure is disproportionate. He may also, and this is the more frequent route, offer security. Article 5 of the 1952 Convention requires the court to order release where sufficient bail or security is furnished, and article L. 5114-21 of the Transport Code allows one or more voyages to be authorised against security. In practice the security takes the form of a letter of undertaking from the owner’s protection and indemnity club or a bank guarantee payable on first demand, whose amount and wording are negotiated within a few hours between counsel, under the supervision of the judge in case of disagreement.
The wording of the security deserves particular attention where a foreign judgment is involved. Article 7 of the convention provides that, where the court of the place of arrest has no jurisdiction on the merits, the security must be given to secure enforcement of the decision to be given by the court having jurisdiction. Transposed to a judgment already given, this means that the security must cover payment of the sums due under the foreign judgment once exequatur has been granted in France, and not merely a hypothetical new French decision. Badly worded security can prove unusable when the time comes to call on it.
The other side of the coin is the arrestor’s liability. Article 6 of the convention refers to the law of the place of arrest for damage caused by a wrongful arrest, and article L. 512-2 of the Code of Civil Enforcement Procedures allows the creditor to be ordered to make good the loss caused by a measure that has been released. The loss of a ship wrongly immobilised runs into tens of thousands of euros a day. From that point of view the foreign judgment is the creditor’s best protection: it makes it very hard to show that the claim was not well founded in principle.
6. From immobilisation to sale: exequatur, demand for payment, auction
If no security is furnished and the owner leaves the ship alongside, the creditor must turn his protective arrest into execution. The first condition is the enforceable title. For a judgment given outside the Union, that is the exequatur judgment of the judicial court, obtained on the conditions set out in the six points that decide whether a foreign title will be enforceable: indirect jurisdiction of the foreign court, conformity with international public policy, absence of fraud. For an arbitral award, it is the exequatur order of the judicial court of Paris, obtained on application within a few weeks. For a judgment given in a Member State, no procedure is needed: the decision is enforceable as of right on production of the certificate under article 53 of Regulation (EU) No 1215/2012, whose article 71 expressly preserves conventions on particular matters, first among them the 1952 Convention.
Armed with the title, the creditor serves a demand for payment (article L. 5114-23), then applies to the enforcement judge for the judgment ordering the sale and setting the reserve price (article L. 5114-24). The sale takes place by public auction (article L. 5114-25), the adjudication brings the master’s functions to an end (article L. 5114-26), and the purchaser deposits the price with the Caisse des depots et consignations, failing which the sale is rescinded as of right and the defaulting bidder answers for the difference (article L. 5114-28). Only creditors who have filed an opposition share in the distribution of the price (article L. 5114-29).
This is where an unsecured creditor sometimes discovers that the ship will not pay him. Maritime liens, first among them crew wages, legal costs, salvage awards and tort claims arising from the operation of the ship, rank ahead of the ship mortgage, which itself ranks ahead of ordinary creditors. A ship mortgaged to her bank for close to her value leaves nothing to the holder of a demurrage judgment. Examining the register and the recorded mortgages, before the application is even made, avoids incurring arrest and keeper costs for a ship whose price will be absorbed by creditors of higher rank.
7. Special cases: yachts, State-owned ships, flags of convenience
The yacht of an individual debtor is arrested like a merchant ship, with two practical differences. The first concerns ownership: large yachts are almost always held by a company, often registered under a flag of convenience, and a foreign judgment against the individual does not allow the company’s ship to be arrested unless the interposition is shown to be a sham. The second concerns the claim: a divorce judgment, a tax debt or a personal loan are not maritime claims, and a yacht flying the flag of a contracting State cannot be arrested protectively on that basis. Ownership through a company and the choice of flag, both lawful arrangements, are also obstacles the creditor must anticipate.
A ship belonging to a foreign State or operated by it falls under immunities. Article L. 111-1-1 of the Code of Civil Enforcement Procedures makes any protective or enforcement measure over property of a foreign State subject to prior leave of the judge, and article L. 111-1-2 allows it only where the State has consented to enforcement, has allocated the property to satisfaction of the claim, or the property is used otherwise than for non-commercial public service purposes. A merchant ship operated commercially by a State company can be arrested; a warship, a research vessel or a ship assigned to a public service cannot. The question arises frequently with national carriers and with arbitral awards against States.
A flag of convenience, finally, is no bar to arrest; it merely complicates identification of the true owner and the analysis of recorded interests. The registers of Panama, Liberia and the Marshall Islands are accessible and issue certificates of registry and of mortgage. A creditor contemplating an arrest is well advised to consult them before the call, and to cross-check that information against ship positioning data, which allows arrival to be predicted to within a few hours.
8. What the foreign judgment brings, and what it does not
The foreign judgment brings, first, evidential weight. Before the enforcement judge hearing the application, a claim established by a court, even a foreign court and even one not yet recognised in France, is very hard to contest in principle, and an owner challenging the arrest has to move to other ground: the nature of the claim, ownership of the ship, disproportion. It brings, next, the amount, with interest at the rate set by the foreign court and the costs awarded, which allows arrest for a precise sum rather than an estimate. And where it has become final abroad, it brings a negotiating position on security: the owner knows the merits are lost and that release only defers payment.
What it does not bring, so long as it is not recognised, is the right to sell and the right to be paid out of the security. A club letter issued in return for release will be called on production of the exequatur judgment or, if it has been properly drafted, on production of the foreign judgment once enforceable in France. A well advised creditor therefore commences exequatur proceedings as soon as the arrest is levied, without waiting for the outcome of the discussions on security, before the judicial court of the place of arrest or of the defendant’s domicile, asking for provisional enforcement where circumstances justify it. Arresting the ship and obtaining exequatur are not two files but two limbs of one file, conducted in parallel.
The firm acts both for creditors seeking to arrest and for owners seeking swift release; its ship arrest page and its exequatur page describe the situations in which it is most often instructed, and the contact form allows a case to be outlined in a few lines, including in the urgency of an announced call.
Frequently asked questions
Is exequatur of the foreign judgment needed to arrest a ship in France?
No to immobilise her, yes to sell her. The protective arrest of article L. 5114-22 of the Transport Code is open to any person whose claim appears well founded in principle, with leave of the enforcement judge of the port, and a foreign judgment largely establishes that principle. Execution, which leads to sale by auction, requires a demand for payment and therefore an enforceable title, which the foreign judgment only becomes after exequatur, except for decisions of EU Member States, enforceable as of right.
Can a ship be arrested if she no longer belongs to the debtor?
In principle no. The Brussels Convention of 1952 allows the arrest of the ship to which the claim relates or of any other ship owned by the person who owned her when the claim arose. If the ship has been sold to a bona fide third party, protective arrest is no longer available against the new owner, except where the claim is secured by a maritime lien that follows the ship, such as wages or salvage, or by a recorded mortgage. The creditor is then left to look for the debtor’s other ships.
How long does the ship stay immobilised?
Until release, which most often comes within a few days against a bank guarantee or a protection and indemnity club letter, or until forced sale if no security is furnished, which takes several months since exequatur of the foreign judgment must be obtained first, then a demand for payment served and the sale ordered by the enforcement judge. The creditor must commence exequatur proceedings within one month of the arrest, on pain of the measure lapsing.
What becomes of the security given to obtain release?
It replaces the ship. Under article 7 of the 1952 Convention the security is given to secure enforcement of the decision on the merits, that is, where the merits have already been decided abroad, payment of the sums due under the foreign judgment once recognised in France. The creditor calls on it on production of the exequatur judgment. Its wording must be checked before release is accepted: security drafted for a future French decision may not cover enforcement of the foreign judgment.
Can a yacht be arrested like a merchant ship?
Yes, articles L. 5114-20 and following of the Transport Code and the 1952 Convention apply to any sea-going ship. Two obstacles are frequent. The yacht is almost always held by a company, so that a judgment against the individual who uses her does not allow an arrest unless a sham is shown. And where she flies the flag of a State party to the convention, protective arrest is available only for a maritime claim, which a personal loan, a tax debt or an ordinary money judgment are not.
On the same subject, on other assets: attaching a bank account in France on a foreign judgment; on ship arrest generally: how to arrest a ship in France to secure a maritime claim; on the applicable regime: the six points that decide whether a foreign title will be enforceable; on common law judgments: enforcing an American or English judgment in France.