According to the judgment under appeal (Aix-en-Provence Court of Appeal, 13 November 2008), Blue Shadow Cruising Ltd (the respondent) sold the yacht Blue Shadow C to Blue Medshadow Ltd (the appellant), flying the British flag, by granting it, for the payment of the price, a loan secured by a first mortgage on the vessel. The appellant defaulted on its mortgage repayments and the respondent was authorised to proceed, in the port of Cannes, to seize the yacht. However, this decision was reversed on the grounds that a Lebanese Court, at the request of a third party, claiming to be a creditor of the respondent's parent company, had authorised the garnishment in the hands of the appellant of all sums due by it in respect of the sale of the vessel and the subsequent loan.

The appellant argued that even if the Lebanese judgment constitutes a legal fact producing effects in France notwithstanding any exequatur, that is to say it establishes the existence of a seizure on the sale price in the hands in particular of the respondent, this seizure does not constitute payment and leaves the undisputed claim to subsist, especially since the attachment was initiated by a third party to guarantee a claim against Jet Aviation, a legal person distinct from the respondent and that the links existing between these different companies with distinct personalities and distinct assets have no impact on the right to payment of the appellant's claim from the respondent; and that this procedure puts in danger the recovery of the debt by the respondent.

The appellant contended that the Court of Appeal, by declaring at the same time that the garnishment had no impact on the right to payment of the debt of the respondent, and that this procedure endangered the recovery of the debt, had ruled on contradictory grounds and violated arts 2 and 3 of the Arrest Convention 1952.

Held: Appeal dismissed.

Neither the unavailability of the debt which is the cause of the seizure, nor the absence of circumstances likely to threaten its recovery, preclude the protective seizure of a vessel. Having held that the respondent alleged a maritime claim which, within the meaning of art 1.1.q of the Arrest Convention 1952, was based on a mortgage, the Court of Appeal has, by these reasons alone, legally justified its decision.