This was an appeal in cassation against the judgment of the Rouen Court of Appeal, 15 February 1990. A cargo of sugar was loaded at Dunkirk on board the Holy Star, chartered by Marseille Fret (the carrier), and bound for the Algerian port of Annaba. While entering this port, an accident occurred during the manoeuvre. The tearing of the ship's hull resulted in the loss of the entire cargo. The Office National de Commercialisation (the consignee) and its insurer, the Caisse Algérienne d'Assurances Transport (the claimants), sued the carrier for compensation for the damage before the Algerian courts. The confirmatory judgment of the Algerian Court of Appeal upholding the claimants' claim was subsequently quashed by the Algerian Court of Cassation.

In addition to the Algerian proceedings, the claimants arrested the Antilles, belonging to Comarin, a subsidiary of the carrier, in the port of Marseille. The arrest was authorised by an order of the President of the Commercial Court who then rejected a request for release. This decision was overturned by the contested judgment.

The claimants criticised the judgment for having ordered the lifting of the protective seizure of the Antilles. They argued that, first, by subordinating the possibility of arrest of a vessel to the condition of a claim founded in principle, in accordance with art 48 of the Code of Civil Procedure, although the Arrest Convention 1952 only requires the allegation of a right or a claim, the Court of Appeal violated the provisions of art 1.1 of the Convention; and secondly, by holding that the responsibility of the carrier was not engaged because the accident was due, not to a commercial fault of the ship, but to a nautical fault of the master, the Court exceeded its powers.

Held: Appeal dismissed.

First, in their pleadings before the Court of Appeal, the claimants relied on the provisions of art 48 of the Code of Civil Procedure to maintain that the claim invoked was founded in principle, and did not claim that the authorisation of the disputed protective seizure was subject only to the allegation of a right or a claim on the basis of art 1 of the Arrest Convention 1952. This ground is therefore incompatible with that argued before the trial Judges.

Secondly, in order to rule on a request for the release of the protective seizure of a ship, the summary Judge, who only noted a point of fact as to the circumstances of the marine accident and did not in any way decide a question relating to the merits of the dispute, made a necessary assessment which did not exceed the Court's powers.