In practice, it can regularly occur that a claim may arise against an airline company transporting passengers or goods. Claims can arise, for example, due to damage caused to shipments of goods  by delays or incorrect handling but this can also be because of unpaid invoices for maintenance, supplied fuel or other forms of services provided, including handling services at the airport.

Usually settlement of such claims with an airline or its agent is not problematic. But there can also be situations when it cannot be expected that the airline will settle the claim voluntarily. This could be due to the amount of the claim or the financial situation of the airline company. In these cases seizure can become interesting. In principle, claims can be filed against all of a debtor’s assets, thus also an airline’s aircraft. In this article we will briefly explain what is involved when a claim for seizure is made against an aircraft.

We will limit ourselves to the pre-judgment attachment (conservatory arrest) stage. This is the phase, prior to a judge’s ruling, when the debtor’s assets are secured in order to ensure receiving payment at a later date once proceedings have been lodged with a judge.

In procedural law a number of regulations apply for the pre-judgment attachment of aircraft. These are laid down in international treaties and the Netherlands Code of Civil Proceedings, in particular Sections 700-710 and 729-729 e Rv.

The law refers to aircraft. According to the law, the motors, propellers, radios and all other objects intended for use in or on the aircraft, irrespective of whether they are installed or temporarily separated, are considered components of the aircraft. Seizure of an aircraft therefore includes all of these parts.

A condition for obtaining permission for seizure from a judge is that the aircraft must be situated in the Netherlands. Aircraft not registered in the Netherlands can be seized if they are within the jurisdiction of the Netherlands. For practical reasons, the aircraft should be located at one of the Dutch airports. For aircraft not registered in the Netherlands it is important to determine if it is registered in a country that is party to the 1933 Treaty of Rome. This treaty lays down a number of rules for the conservatory arrest of aircraft. Various major aviation countries are not party to the treaty, such as, for instance, India, Russia and China.

Should this not be the case, however strange this might seem, a seizure of an aircraft may be initiated based on the rules for conservatory arrest on movable, tangible assets, thus applying the rules for pre-judgment attachment against debtors without a known address in the Netherlands, the so-called foreign attachment.

Read the full article in Cargo Magazine on page 30

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