This was an appeal in cassation against the order of the First President of the Bordeaux Court of Appeal, 10 May 1991. The Heidberg, which is owned by Partenreederei M/S Heidberg (Heidberg), of whom Mr Y and Arend X are the partners, and is managed by Vega Freidrich Dauber (Vega), hit and damaged a wharf located in Pauillac and belonging to Petroleum Shell (Shell). On the application of Shell, the President of the Commercial Court ordered the arrest of the Heidberg on 11 March 1991. On the application of Heidberg and Vega, the President of the Commercial Court, ruling on 8 April 1991, allowed for the constitution of a limitation fund and said that it would be validly constituted by a bank guarantee. The fund was subsequently constituted by an order on 16 April 1991. On the same day, Heidberg and Vega called for the release of the vessel from arrest. Shell requested the retraction of the orders of 8 and 16 April 1991 by claiming that the behaviour of those responsible for the damage was such that it fell within the scope of art 4 of the LLMC 1976, entailing the abolition of the right of limitation of liability. The First President refused Heidberg and Vega the right to appeal the order by which the summary Judge had suspended ruling on their application for the release of the vessel from arrest.

Held: Cassation.

Under art 13 of the LLMC 1976, read together with arts 380 and 380-1 of the new Code of Civil Procedure, after the constitution of a limitation fund, the lifting of the arrest of the vessel must be ordered. The failure to do so provided a serious and legitimate reason for appealing. The contested order violated the aforementioned provisions.

For these reasons, the order of the First President made on 10 May 1991 is struck down and annulled in its entirety. The case and the parties are returned to the position they were in before the aforementioned order, and the case is referred to the First President of the Poitiers Court of Appeal to be decided correctly.