According to the judgment under appeal (Aix-en-Provence Court of Appeal, 12 November 2009), Indian Empress Ltd (the appellant) entrusted Nautical Technologies (the respondent) with carrying out work on the Indian Empress, the payment for which gave rise to a dispute between the parties. The appellant was ordered to pay the respondent EUR 192,000 out of the EUR 404,151.11 claimed by the respondent. On the basis of this order, the respondent obtained a precautionary seizure of the vessel in Malta, the release of which was procured by means of a deposit of EUR 210,000. In addition, the respondent obtained an order from the courts of Malta for the appellant to pay the respondent the sum of EUR 192,000, which was paid.

The respondent then sued the appellant in the Commercial Court of Marseille for EUR 404,151.11. The Court granted the respondent's claim. The Court of Appeal, by judgment of 6 March 2009, reduced the respondent's claim to EUR 304,151.11 plus EUR 80,000 in damages. According to authorisation given by the President of the Commercial Court of Cannes, the respondent obtained a subsequent protective seizure of the ship for security for the outstanding debt. The Court of Appeal upheld the second seizure of the ship.

The appellant argued that the prohibition on repeating a protective seizure on the same vessel for the same maritime claim in art 3.3 of the Arrest Convention 1952 applies to seizures made by a creditor who is a national of a Contracting State, in respect of a ship flying the flag of a Contracting State, including when that ship is sailing in the port of a non-Contracting State and one of the two seizures is physically carried out there, a fortiori in view of a court decision issued by a Contracting State. After noting that a first seizure had been carried out in Malta, by one company against another, where both were nationals of a Contracting State, it followed that the seizure of the ship could not be repeated in France in respect of the same maritime claim. The Court of Appeal did not follow the legal consequences of its own findings with regard to art 3.3 of the Convention.

A maritime claim results from the simple allegation of its existence, without even being necessary, to practice a seizure, that it appears founded, in whole or in part, in its principle; nor does it need to be noted by a judge. The provision for a claim granted by a summary Judge, and the balance of the same claim, discussed before the trial Judges, therefore correspond to two parts of the same alleged maritime claim, and cannot be invoked one after the another to make two successive seizures. By holding that the first seizure had been made on the basis of the provision allocated by the Judge in summary proceedings for the maritime debt for the repair work carried out on the Indian Empress, and that the second seizure corresponded to the balance of this debt, the Court of Appeal violated art 3.3 of the Convention.

Held: Appeal dismissed.

On the one hand, the Court of Appeal correctly held that art 3.3 of the Arrest Convention 1952, according to which a vessel cannot be seized more than once in the jurisdiction of one or more of the Contracting States for the same claim and by the same plaintiff, limited the scope of this prohibition to seizures carried out in the Contracting States. The Court correctly deduced that Malta not having signed this Convention, the seizure carried out in Cannes could not be retracted with regard to this article.

On the other hand, the Court of Appeal having thus ruled, the further reasoning by which it considered that, moreover, the granting of a provision by a Judge in summary proceedings did not in itself make it possible to prohibit collateral security for the balance of the invoked claim is superfluous.