This was a cassation appeal against the judgment of 27 September 2022 by the Court of Appeal of Rennes (3rd Commercial Chamber) (CMI2257), in a dispute between the appellant, Société Dune, and Mr ZI, the respondent in the cassation appeal. Mr ZI, a professional skipper, had ordered the precautionary seizure of a vessel belonging to the appellant in order to secure his claim for damages following the termination of their collaboration. The appellant sought to have the arrest of its vessel lifted, but the Court of Appeal confirmed the first instance Court's finding that the arrest was valid in terms of the Arrest Convention 1952.

The appellant argued, first, that the application of an international Convention is subject to the existence of a foreign element. By applying the provisions of the Arrest Convention to this ship arrest, and finding that the respondent had a maritime claim against the appellant and that the ship arrest was regular, without characterising any foreign element, the Court of Appeal ruled on improper grounds in violation of art 8.4 of the Arrest Convention, together with art L 5114-22 of the Transport Code, art L 511-1 of the Transport Code, civil enforcement procedures, and art 12 of the Code of Civil Procedure. Secondly, only provisions of domestic law are applicable to the arrest of a ship flying the French flag by a person having his habitual residence or his principal establishment in France. In this case, it emerged from the Court of Appeal's own findings that the respondent had his habitual residence in France and that the vessel subject to the precautionary seizure flew the French flag. By applying the provisions of the Arrest Convention, the Court of Appeal did not draw conclusions from its own findings and violated the aforementioned provisions.

Held: Cassation appeal upheld. The decision of the Court of Appeal is quashed and annulled, and the case and the parties are returned to the state they were in before this judgment and are referred to the Rennes Court of Appeal, differently constituted.

Article 8.1 of the Arrest Convention provides that its provisions 'shall apply to any vessel flying the flag of a Contracting State in the jurisdiction of any Contracting State'. However, art 8.4 provides that '[n]othing in this Convention shall modify or affect the rules of law in force in the respective Contracting States relating to the arrest of any ship within the jurisdiction of the State of her flag by a person who has his habitual residence or principal place of business in that State'.

Article L 5114-22 of the Transport Code provides that any person whose claim appears to be founded in principle may request authorisation from a judge to carry out a precautionary seizure of a ship.

The Court of Appeal applied the Arrest Convention and held that the respondent, who alleges loss of profits due to the breach of a contract, had a maritime claim against the appellant allowing him, by virtue of arts 4 and 5 of the Convention, to seize the relevant vessel with the authorisation of the Court, on the basis that the general provisions of the Code of Civil Enforcement Procedures take precedence over the special provisions of the aforementioned Convention.

The place of arrest, the flag of the ship, and the residence of the arresting party were in France. In the absence of a foreign element, the precautionary seizure of this ship was governed by the Transport Code. The Court of Appeal violated arts 8.1 and 8.4 of the abovementioned Convention by false application, and art L 5114-22 of the Transport Code by non-application.