Apollo Global Marine LLC (Apollo), the owner of a pleasure boat the MY Cristales, flying the flag of the Republic of the Marshall Islands, hired Mr GX as captain, and Ms YJ as chef and sailor for the operation of this vessel. In January 2019, in order to relaunch its commercial operation, Apollo began to prepare the transfer of the ship as cargo to the United States and the Caribbean, preparations in which GX and YJ participated.

Arguing that they were each the holders of a maritime claim in the amount of EUR 125,676 and EUR 107,448, consisting of unpaid wages, compensation for termination of the employment contract (pay in lieu of notice, compensation for paid leave, compensation for dismissal without real and serious cause), and compensation for concealed work, GX and YJ requested the seizure of the ship from the President of the Commercial Court of Antibes. The vessel was subsequently released against security.

At the same time, GX and YJ filed motions in the Cannes Labour Court, for the purpose of judicial termination of their employment contract. The Court dismissed their claims, analysing the situation as a resignation. GX and YJ appealed. That dispute is currently pending before the Aix-en-Provence Court of Appeal.

Apollo then sought a retraction of the claims in the Commercial Court of Antibes, in summary proceedings, and restitution of its security. The Court dismissed Apollo's application. Appollo appealed to the Aix-en-Provence Court of Appeal.

Held: Appeal upheld. The orders of the Commercial Court of Antibes are reversed, and Apollo's security returned to it.

It is common ground that the seizure of ships is, under French law, subject to a dual regime: an international regime expressed by international Conventions, and in particular the Arrest Convention 1952, and a regime specific to French law, resulting from arts L5114-22 and R5114-15 ff of the Transport Code.

In this respect, the disputed seizure of the ship was carried out both on the basis of the Arrest Convention 1952 and on the basis of French legal provisions.

The Arrest Convention 1952 applies to 'seagoing ships'. It specifies in art 6.2 that the rules of procedure relating to the seizure of a vessel, to obtaining the authorisation referred to in art 4, and to all other procedural incidents that a seizure may raise, are governed by the law of the contracting State in which the seizure was carried out or requested. It is therefore up to French law to determine the jurisdiction of the judge when the seizure takes place in France.

Article L 5114-20 of the Transport Code provides that the seizure of the vessel is governed by the provisions of this article, and Article L 5114-22 of the Transport Code provides that any person whose claim appears justified in principle may request the judge's authorisation to carry out a protective seizure of the vessel, without, however, specifying the competent judge.

However, it follows from the combined reading of art L511-3 of the Code of Civil Enforcement Procedures designating the judge with jurisdiction in matters of protective custody, and art L721-7-2° of the Commercial Code, that the competent judge is in principle the enforcement judge. The President of the Commercial Court has only residual jurisdiction in the matter, when this tends to preserve a claim falling within the jurisdiction of the Commercial Court.

It is therefore important to determine the nature of the claim, in order to determine the attribution of jurisdiction. Apollo maintains that the alleged claims are of an employment salary nature, while GX and YJ maintain that they are maritime claims, as defined by art 1 of the Arrest Convention 1952. To satisfy the qualification of a 'maritime claim' within the meaning of the Arrest Convention, the alleged claim must simply have one of the causes of which the Convention draws up an exhaustive list, and in particular corresponds to 'wages of Masters, Officers, or crew'.

However, the notion of a maritime claim does not have any consequences with regard to the attribution of jurisdiction, the latter only conditioning the regime of application once this jurisdiction has been determined, so that a maritime claim can also take on the character of a commercial, social, or civil claim.

In this case, given that the alleged claims were in the nature of wages, which only an industrial and non-commercial tribunal can hear, the President of the Commercial Court of Antibes was not competent to order the seizure of the ship.