This was an appeal in cassation against the judgment of the Bordeaux Court of Appeal, 25 April 1994. Following the protective seizure of the Sandal, authorised by the President of the Commercial Court on the request of the Autonomous Port of Nantes-Saint-Nazaire (the Port), the shipowners of the Sandal, represented by the master, proposed to the Port the substitution of a bank guarantee for the seizure. The Port accepted this in principle. However, the Port required that the formula 'by final judgment' appearing in the letter of guarantee that the insurers of the Sandal intended to issue, be replaced with 'by judgment'. The President of the Commercial Court, to which this discrepancy was submitted at the same time as the request for release from the seizure, pronounced the vessel's release on condition that the original of the letter included the words 'by judgment'. In the Court of Appeal, the parties gave respectively to the expressions 'by final judgment' and 'by judgment' the same scope in French law as 'irrevocable decision' and 'simply executory decision' respectively.

The shipowners criticised the Court of Appeal judgment on the basis that, under arts 5 and 7.2 of the Arrest Convention 1952, the release of a ship from arrest may be granted when a bond or sufficient guarantee has been provided, the guarantor thus committing to guarantee the execution of all judgments pronounced subsequently by the court competent to rule on the merits. If an appeal can still be carried out by virtue of a simple enforceable decision, payment of the guarantee must be suspended pending a decision rendered on the merits that is final. By authorising the beneficiary of the guarantee to proceed with the forced execution thereof on the sole presentation of a simply enforceable judgment, the Court of Appeal violated arts 5 and 7.2 of the Arrest Convention 1952.

Held: Appeal dismissed.

The judgment noted that the dispute related only to the modalities of execution of the guarantee. Article 7.2 of the Arrest Convention 1952 does not require that the judgments, which would be pronounced later on the merits and for the execution which the guarantee had been provided, must be irrevocable. The Court of Appeal therefore correctly decided that the judgments covered by the guarantee should only be enforceable.