This was a cassation appeal by Bur-Mar Shipping & Trade Co Ltd (Bur-Mar), a Turkish company, against the judgment of 10 October 2023 of the Court of Appeal of Pau (2nd Chamber, Section 1), in its dispute with Monjasa AS (Monjasa), a Danish company.

Bur-Mar time chartered the Burhan Dizman to the Turkish company Arcoship Denizcilik Nakliyat ve Ticaret (ADNVT). The vessel was redelivered to Bur-Mar on 31 July 2023, and Bur-Mar subsequently chartered it to AMS Amaropa Marketing & Sales AG.

Monjasa subsequently obtained authorisation to seize the vessel as security for its claim for non-payment of bunker supplies against ADNVT. Bur-Mar sued Monjasa to have the order authorising the ship arrest revoked. Its claim was dismissed.

Bur-Mar appealed, arguing that art 3.4 of the Arrest Convention 1952 provides that, in the case of a charter of a vessel with transfer of nautical management, when the charterer alone is liable for a maritime claim relating to that vessel, the claimant may arrest that vessel, or any other vessel belonging to the charterer, in compliance with the provisions of the Convention, but no other vessel belonging to the owner may be arrested by virtue of that maritime claim. Further, according to art 9 of the Convention, nothing in it shall be considered as creating a right of action which, apart from the Convention provisions, would not exist according to the law to be applied by the court seized of the dispute. The Convention thus does not confer on claimants any right of action, other than that granted by the Convention itself or by the MLM Conventions if the latter are applicable. It follows that, when a charter has ended and the vessel has been rededicated, only a creditor holding a maritime lien, according to the law of the forum (French law), may arrest a vessel not belonging to its debtor.

Held: Partial cassation.

The Court has regard to arts 3, 4, and 9 of the Arrest Convention 1952. By application of art 3 of this Convention, the holder of a maritime claim can seize a ship to which its claim relates, even if the owner has sold it since the creation of the claim (Com, 31 March 1992, appeal no 90-17.337) (CMI1322), and even if the charter had ended (Com, 13 December 1994, appeal no 92-14.307) (CMI1318).

Since a judgment of this Court of 4 October 2005, reversing case law to take into account the provisions of art 9 of the Convention, the Court of Cassation now rules that, by application of arts 3 and 9, the arrest of a ship no longer belonging to the debtor can only be authorised if the arrestor claims a maritime lien within the meaning of the law of the forum (Com, 4 October 2005, appeal no 02-18.201) (CMI1212).

This interpretation gives effect to art 9, reserved by art 3, from which it follows that nothing in the Convention shall be considered as creating a right to an action which, apart from the stipulations of the Convention, would not exist according to the law to be applied by the court seized of the dispute, must also be applied to the case where the arrest of the ship has been carried out on the allegation of a claim against the charterer of the ship to which the claim relates, when the charter has ended and the ship has been redelivered to its owner.

In refusing to set aside the order authorising the precautionary attachment, the appealed judgment held that it is clear from art 3.1 of the Convention that the claimant may attach either the vessel to which the claim relates or any other vessel belonging to the party who, at the time the maritime claim arose, owned the vessel to which that claim relates. Therefore, it is only necessary to determine whether the alleged claim is a maritime claim within the meaning of art 1 of the Convention. If so, the arrest of the vessel was validly ordered, without any need to add a further condition to the right of arrest by requiring that the maritime claim be given priority.

In so ruling, when ADNVT, against which Monjasa asserted a maritime claim, was no longer the charterer of the vessel to which that claim related, the Court of Appeal violated the aforementioned provisions.

The Court therefore quashes and sets aside (apart from one point) the decision of the Court of Appeal of Pau and remands the case and the parties to the state in which they were before that judgment, and refers them to the Court of Appeal of Bordeaux.