Cassation appeal directed against the judgment delivered on 8 February 2011 by the Ghent Court of Appeal.

Held: Appeal rejected.

On the first ground of cassation:

1. It appears from art 3.1 of the Arrest Convention 1952 and art 1469(1) of the Judicial Code which corresponds to it, as well as from art 9 of the Arrest Convention 1952, that where the vessel to which the maritime claim relates is transferred after the occurrence of the claim, a creditor who does not have a claim against that vessel in respect of title or ownership, mortgage or hypothecation of any ship, cannot exercise a provisional seizure over it.

2. An assignment of the ship is effective against the seizor only if the transfer is effective against third parties under the applicable law.

3. This ground of appeal incorrectly presupposes that the appellate judges created in favour of this creditor a right which is not provided for either under the Arrest Convention 1952 or under the Judicial Code in holding that, notwithstanding the assignment of the ship, a creditor may engage in protective seizure on that ship when the conditions of enforceability of the assignment against third parties were not met at the time of the transfer.

This ground of appeal has no validity.

As for the second ground:

4. Under art 6.2 of the Arrest Convention 1952, the rules of procedure relating to the arrest of a ship, to the application for obtaining the authority referred to in art 4 of the Arrest Convention, and to all matters of procedure which the arrest may entail, shall be governed by the law of the Contracting State in which the arrest was made or applied for.

5. Pursuant to art 1472(3) of the Judicial Code, if the vessel is not registered in Belgium, the warrant of arrest and a certified copy thereof are presented to the Belgian Naval Register which merely records the delivery of the documents in the Register of Deposits, except for registration if registration is subsequently required.

6. The plea which, in this connection, presupposes that the validity of the seizure of a vessel of foreign nationality exercised in Belgium depends on compliance with the publicity requirements of the flag State is incorrect.

7. The plea in this branch rests on the erroneous legal basis that the master of a ship cannot be regarded as the legal representative of the shipowner.

This ground of appeal has no validity.