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Maritime Liens Revisited: From Historical

Development to Contemporary National Law; a


Journey towards International Unification



Tafsir Matin Johansson









January, 2011
















2

Table of contents

Introduction........................................................................................................................3
Chapter 1

1.1 Historical evolution of Maritime Liens....................................................................4
1.2 Defining Maritime Liens..........................................................................................5
1.3 Maritime Liens: Unique characteristics peculiar to maritime law..............................6
1.4 Types of Maritime Liens: analysis in terms of common wealth and civil law
countries......................................................................................................................8
Chapter 2

2.1 Precedence in respect of simultaneous maritime liens: exploring classic cases..........10
2.2 Justifying priority ranking of maritime liens in the United States...............................11
2.3 Priority ranking of maritime liens in the United Kingdom..........................................12
2.4 Maritime lien ranking in Canada: Subtle differences with the United Kingdom........13

Chapter 3

3.1 Examining the approaches of Choice of law in the Conflict of laws........................14
3.2 International conventions relating to Maritime Liens..................................................15
3.3 An overview of the 1926 convention...........................................................................16
3.4 1962 Convention v. 1967 Convention (comparison in system of priorities)...............17

Chapter 4

4.1 Examining the recent convention on maritime liens (the 1993 convention)...............18
4.2 Problems of present conventions in force (the 1926 and the 1993 convention)..........19
4.3 Different national approaches relating to maritime liens.............................................21
4.4 A viable answer: drafting a new convention considering domestic approaches..........22

Conclusion...........................................................................................................................23
References...........................................................................................................................24
3

Introduction

The substantive law as to the nature, number and priority ranking as between categories of
maritime claims vary in respect of different jurisdictions. Therefore, dissimilar national
approaches regarding foreign judgments on the subject of maritime liens has generated
divergence and discord among states. One of the core objects of the existing international
instruments on maritime liens is to categorize and limit the number of maritime liens which
precede maritime mortgage claims, so as to bring an international unification and secure the
rights of financers who contribute greatly in the development of maritime-fleet. In order to
understand conflicts of law in the domain of maritime liens it is important to compare
competing national laws. Although maritime liens and mortgages are inextricably connected
the scope of this paper is limited to the analysis and examination of maritime liens
exclusively and their priority ranking as incorporated in the international instruments as well
as the national laws of some of the major maritime countries. This is because in order to
examine maritime liens in the conflict of laws, it must be studied seperately. The key
objective of this paper is to trace the roots of maritime liens; examine the definition, nature
and classifications; emphasise on its priority ranking in three major maritime countries i.e. the
United States of America (hereinafter referred to as the United States), the United Kingdom
of Great Britain and Northern Ireland (hereinafter referred to as United Kingdom) and
Canada; analyse and compare the pertinent international conventions intended to categorize
and limit the number of maritime liens, pinpoint the drawbacks of those conventions, extract
different national approaches and finally provide recommendations on the matter of
international unification of maritime liens.
In an endeavour to scrutinise the maritime liens that exist in different
national laws and the international instruments, this paper narrows down to the ultimate
question, as to which law should be enforced to determine the priority ranking between
themselves, whether maritime liens can be restricted to limited numbers in an international
instrument and whether there can be a harmonization in this disunified international regime so
that problems as to conflict of laws may radically decline.





4

Chapter 1

1.1 Historical evolution of Maritime Liens

I, indeed, am Lord of the world, but the law is lord of the sea. Let it be judged by Rhodian Law, prescribed
concerning nautical matters, so far as no one of our laws is opposed.
1

The very reply of Emperor Antoninus to a complain of a shipwreck vibrates an example of
conflict of maritime laws in ancient Rhodian law assimilated in the Digest of Justinian.
2

Maritime liens as a proprietary interest in a res is an outcome of advancement through
centuries of custom, statute and judicial pronouncement and has ultimately taken a reshaped
and refined form in modern admiralty law. Evidence is deduced from the primitive and
ancient customs of the ancient Greek Law
3
and the Roman Law
4
to the Byzantine/Rhodian
Sea-Law
5
(seventh or eighth century A.D.) and the Basilica
6
(ninth century A.D.). From ninth
to twelfth century, an oral lex maritima in its authentic shape formed a part of the medieval
lex mercatoria (mercantile law), governed the relations of the merchants who merchandised
goods via sea.
7
With the increased sophistication of maritime business in the medieval period
numerous maritime codes were endorsed to synchronize commercial maritime endeavours
among which Consulate de la mer(a) was significant as it dealt with the right of the seamen
against the ship as a security for their wages and later, spread throughout the Mediterranean
basin.
8
The !"#$% '( )#*+',
-
(enu of the twelfth centuiy A.B.). which is the fiist iecoiueu

1
William Tetley, Maritime Liens and Claims, Second Edition, 1998, Les Euitions Yvon Blais, p.
8, paia. 1.
2
Ibid., p. 8, paia. S, wheie W. Tetley mentions that !/'012, 324 pieuates to c. 8uu B.C. the
coues of which weie fiist inuicateu in the 516$%7 '( 89%71,12,:
3
Ibid., p. 9, para. 1, where W. Tetley in brief extracts the essence of maritime liens from the case
of Zemonthemis v. Demon, where the hypothecation of the ship and the cargo by a master in a
foreign ship was permissible and established by declaration.
4
Ibid., p. 9, para. 3, where W. Tetley indicates the presence of four types of maritime liens i.e. the
nautical loan; a loan to build, buy or equip a ship secured by a privilege; a privilege for repairing
the ship or supplying the crew; and a privilege on cargo either by the ship-owner or the person
who lent money for the payment of freight.
5
Ibid., p. 11, para. 2, where W. Tetley states that, [t]he Byzantine/Rhodian Sea-Law is divided
into three main parts with many chapters in each part. Two chapters deal with primitive maritime
liens. In part III, chaptei 19, a captain in commanu, if he owns of the ship, woulu seem to
have the powei to boiiow money on the cieuit of the ship. In pait III, chaptei 16, captains
anu meichants who boiiow money on the ship, the fieight, oi the caigo may hypothecate the
ship. This hypothecate, the text notes, is unlike a lanu hypothecation".
6
Ibid., p. 11, para. 3, where W. Tetley reaffirms Walter Ashburner on The Rhodian Sea-Law,
1909, p xiii, that, [b]ook 53 of the Basilica contains considerable maritime law and it is thought
by Ashburner that the Byzantine/Rhodian Sea-law was attached to Book 53 as an appendix.
7
Ibid., p. 12, para. 12.
8
Paul M. Herbert, The origin and Nature of Maritime Liens, 1930, Tulane Law Review, The
Tulane University of Louisiana, pp. 382-384.
5

souice of contempoiaiy maiitime law stateu piinciples, iepoiteu juugments anu
incoipoiateu the uuties anu iesponsibilities of the mastei, the ciew, the ship-ownei anu
the meichants.
1u
The 324% '( ;1%<= which uevelopeu aiounu the Atlantic anu Baltic poits
weie mostly contingent on the !"#$% '( )#*+',. which uealt with the iights of the seamen
against the ship as the secuiity foi theii wages.
11
The piinciples tianspaiently
aiticulateu in the !"#$% coupleu with Consulate de la mer(a) were the determinants of the
Ordonnance de la Marine 1681 in France and contributed greatly to the growth of general
maritime law of England and Northern Europe.
12
The dearth of a settled guidance to
adjudicate disputes among sea-faring people during the medieval period paved the way for
recording of judgments in individual cases.
13
Apparently the recordings of these proceedings
led to the codification of the customary maritime laws which imposed a concrete obligation
on the mariners and the special maritime tribunals.

1.2 Defining Maritime Liens
Under a broad spectrum, the term lien may be deciphered as a legal right or interest in
anothers property that exists until a debt due in respect of it is satisfied.
14
And when it is
enclosed with maritime, it relates to a valuable yet effective method of enabling the injured
party to make the vessel herself available as a security.
15
The operation takes a turn to reality
by appropriation of the vessel itself and remains unaffected by alteration of ownership.
16
This
seizure of the vessel of the maritime property is seen as a privileged claim
17
, mostly owing to
the notion that in the past, judgments rendered regarding collisions reflected maritime liens as
a privileged claim. Gorell Barnes, J. in The Ripon City
18
held that:

9
Supra note 1, Willian Tetley states that, [t]he !"#$% came into existence towaius the enu of
the twelfth centuiy A.B. anu consisteu of both stateu piinciples anu iepoiteu juugments
ielating to the wine tiaue between Aquitaine (uuienne), Englanu anu Flanueis anu, latei on,
weie influential in much of the maiitime woilu, especially in the Baltic anu Noiuic
countiies."
10
Supra note 1, p. 13, para. 2.
11
Supra note 7.
12
Supra note 1, p. 18, para. 1.
13
Grant Gilmore and Charles L. Black, The Law of Admiralty, Second edition, 1957, New York
Foundation press, pp. 3-8.
14
Bryan A. Garner, A Dictionary of Modern Legal Usage, 1987, Published by Oxford University
Press (U.S.A), p. 341, See definition of lien.
15
Chorley and Giles, Shipping Law, Eighth edition, 1987, Published in Great Britain, p. 70,
para.1, See General (7.11).
16
Ibid.
17
Supra note 1, where W. Tetley states that, The maritime lien for its part is a right, a right found
in the lex maritima; in the civilian tradition, it is a privilege.
18
[1987] 7 Moo. P.C. 267 at p.284, 13 E.R. 884 at p. 890.
6

a lien is a privileged claim upon a vessel in respect of a service done to it, or injury caused by it, to be carried
into effect by legal process.
19

Then again, Scott, L.J., in The Tolten
20
opined that:
[t]he essence of the privilege was and still is, whether Continental or English law, that it comes
into existence automatically without any antecedent formality, and simultaneously with the cause of action, and
confers a true charge on the ship and freight of a proprietary kind in favours of the privileged creditor.
21

An analysis into the existing definitions demonstrate that till date it remains to be a
dormant title of empowerment to the injured by which a justified and legal claim can be
established and irreversibly executed by operation of law. Collisions among other hazards
that may befall a ship are capricious, and to compensate the aggrieved, maritime law has by
lien designed a proprietary interest in a res. Hence, the interest stands stagnant and clings to
the maritime property and the magnitude is further demonstrated where the lien stretches even
after the injurer intentionally or otherwise attempts to change the ownership. This absolute
right of the injured operates even against a good faith purchaser.
22
It is due to the reason of
the power of its enforceability; it is termed by lawyers as a right in rem (or, action in rem i.e.
a right enforceable against the world at large) as opposed to right in personam (a right
enforceable against a particular person).
23


1.3 Maritime Liens: Unique characteristics peculiar to maritime law
Maritime lien denoted as a special property interest (jus in re) in nineteenth century cases has
led theorists to state that the action in rem is brought literally against the vessel as the
offending thing.
24
A right against the property
25
and simultaneously, a right in the property
has established maritime lien as a subject peculiar to maritime law. Courts of common-law
countries designate it as hypothecation, an inchoate right, a proprietary right whereas in
France, it is known as Creances Privilegiees and in Japan as preferrential rights of ships

19
Supra note 1, p. 58, para. 4.
20
[1946] P. 135 at pp. 149-150, (1946) 79 Ll. L. Rep. 349 at p. 356.
21
Supra note 1, p. 59, para. 1.
22
Thomas J. Schoenbaum, Admiralty and Maritime Law, Fourth edition, Volume 1, 1987, West
Publishing Company, p. 515, para. 1.
23
Supra note 15.
24
Supra note 22, p. 526, para. 1.
25
A right based upon the legal fiction that the ship itself is the offender. Also, See, Christopher
Hill, Maritime Law, Sixth edition, 2003, Published in Great Britain, p. 119, where C. Hill states
that, It is a right which springs from general maritime law and is based on the concept that the
ship (personified) has itself caused harm, loss or damage to others or to their property and must
itself make good that loss. The ship is, in other words, the wrongdoer, not its owners. (emphasis
mine).
7

creditors.
26
Diverse as the terms may seem, the fundamental objective remains the same, and
under all circumstances it acts as a charge or encumbrance against maritime property.
Maritime lien as opposed to land-law-type lien is not influenced by either notice or
possession and preferred ship mortgage is only one of its kind which gets recorded in any
type of registry and therefore, maritime lien is a silent lien where custody over the property is
not a prerequisite.
27
It acts independent of possession where consent of parties or judicial
process plays no role and remains affixed wherever it may go or whosoevers
28
hand it may
fall. In short, it is fastened by law on the maritime property from the moment of occurrence
which manifests that a maritime lien has materialised. The claims fixed firmly by a maritime
lien are paid off from the proceeds of sale and this is accomplished in priority to all other
ordinary claims and mortgages. Then again, a maritime lien is a right against any maritime
property, whether it is against the ship herself, the freight or the accessories.
29
Considering
the fact that it operates against any maritime property, it does not only adhere to the
procedural side, but also observes the substantive side and attributes to the substantive part of
the common-law countries. Scott, L.J., in The Tolten
30
clarifies the substantive element of
maritime lien whereby it sets forth the operation of the Admiralty Courts executive function
of arresting and selling the ship.
31
Moreover, maritime lien travels with the res secretively yet
unconditionally and attaches to the vessel by law when a claim evolves.
32
The intention of
such unique characteristics lies in the fact that the holder of the lien may enforce his claim
against the ship and the owner (or person liable) is compelled to compensate or provide
security to avoid seizure or arrest of the ship in question. In this regard, it is not a prerequisite
for the owner to have personal liability, nor does the claimant need an absolute privilege
against any assets other than the ship i.e. bareboat or other demise charterer.
33
In the absence

26
D. R. Thomas, Maritime liens, Vol. 14, 1980, London, Stevens and sons, p. 2.
27
Michael A. Orlando and Meyer Orlando on Gilmore and Black (The Law of Admiralty, second
edition, 1985), A Lien is a Lien, but a Maritime Lien is not, June 2003.
28
Supra note 15, p. 70, states a brief analysis of The Bold Buccleugh: Harmer v. Bell, (1850), 7
Moo. P.C.C. 267, 13 E.R. 884. The cause of action sparked when The Bold Buccleugh ran down
the plaintiffs vessel and prior to the proceedings in the Admiralty court, it was sold to a purchaser
without notice of the incident. It was held that, The lien operated against a bona fide purchaser
for value; it related back to the time when it attached. The lien is lost by negligence or delay,
neither of which was proved in this cause.
29
The Editorial Staff of the American Law Book Company, Corpus Juris Secundum, 1948, New
York: West Publishing Company, Vol. 55, p. 714.
30
Supra note 20.
31
Supra note 26, p. 23.
32
Essays on Maritime Legislation, Vol. 1, Seminar on Maritime Liens and Mortgages and on
Enforcement of Securities, Undertaken by Comite Maritime International, Genoa, Italy, 1990,
August, See Allan Phillip in Characteristic features of maritime liens p. 25, para. 1.
33
Ibid., para. 2.
8

of any connection between the owner and the loss, the payment in its entirety is recoverable
by the owner from the person held liable for the claim. Subjective liability may vary
depending on designations as regards to the vessel. For a bareboat charter, the charterer faces
liability and in the case of a time charter the owner is responsible considering the time of the
charter hire.
34
The charter party acts as the determiner (in the relationship between owner and
charterer) corresponding to third party claimants and most often the charter party may
incorporate a non-lien clause to exclude the charterers operation of the ship from giving rise
to maritime liens.
35
However, it cannot influence the protection of third parties assumed
explicitly in article 4 and article 7 of the International Convention for the Unification of
Certain Rules Relating to Maritime Liens and Mortgages, 1926. In addition to these
inimitable features, maritime liens are valid against everybody without registration while it
appears to be a precondition to safeguard other rights in a ship.
36


1.4 Types of Maritime Liens: analysis in terms of common wealth and civil law
countries
To ascertain and more specifically, in order to resolve the conundrums in matters of priority
between maritime liens, they have been categorized under two comprehensive headings; the
former relates to consensual arrangement and the latter corresponds to damages suffered from
tortious acts.
37
The first caption consists of liens which generates from bottomry and
respondentia
38
, salvage
39
, seamens and masters wages
40
, masters disbursements
41
; while the

34
Ibid., para. 4.
35
Ibid., para. 4-5.
36
Ibid., para. 6.
37
Supra note 15, p. 71.
38
Gustavus H. Robinson, Handbook of Admiralty Law in the United States, 1939, West publishing
Company, pp. 369-371, where it is expressed that neither bottomry or respondentia loan bear great
contemporary importance owing to the upsurge of facility in present day communication and
consequent ready touch with the owner. The rationalization of these claims was to support the
master in obtaining credit outside the ships home port, however, the development of
communication has helped the master to receive orders from the owner and the owner is
constantly aware of the condition of the ship during continuance of her voyage.
39
The creation of which should inevitably secure the remuneration of the salvors in cases where
the party saved intentionally refuses to satisfy thereof. Article 2 of the Convention for the
Unification of certain Rules of Law, Respecting Assistance and Salvage at Sea (1910 September
23, signed in Brussels) emphasises on the equitable remuneration which shall not exceed the value
of the property salvaged, for every act of assistance or salvage. See also; Supra note 26, pp. 139-
140, where D.R. Thomas states the preconditions for the creation of maritime salvage.
Considering the imminent danger that may befall a ship, pre-existence of salvage contract is not
necessary because security of the salvor lien is preserved by salvage lien which is affixed to the
salvaged property. Then again, right to salvage may arise from contract and the usual contract is
LOF (Lloyds Open Form), 1980 which is considered to be a standard form of salvage contract.
Since volunteering to act as a salvor is seen as a pre-condition, difficulties may arise for a person
who is not a volunteer to claim salvage lien under LOF terms. Salvors may seek security to be
9

second caption comprises of damage
42
done by ship.
43
The amalgamation of these classified
liens may under a broad term be addressed as traditional maritime liens, applicable in
England and the common-wealth states (according to the lex fori).
44
Other amenities or
damages
45
relating to a ship do not give rise to traditional maritime claims, rather to
statutory rights in rem where the right to arrest in an action in rem is awarded by the

provided to Lloyds whereby they provide consent as not to arrest or detain the ship if the security
is provided. See also Supra note 1, p. 341-342, where it is stated that The International Convention
for the Unification of certain Rules of Law Relating to Maritime Liens and Mortgages, ranked
salvage immediately after custodia legis and crew wages, the International Convention for the
Unification of certain Rules of Law Relating to Maritime Liens and Mortgages, 1967 ranked
salvage back in fifth position and the International Convention on Maritime Liens and Mortgages,
1993 ranked salvage further up the scale.
40
See Supra note 26, pp. 175,180,181-182 where it has been stressed that the foundation of
seamens wages does not root back from Roman law, but the initial maritime codes recognizes
that it ought to be given priority compared to other claims. In England, the indication of its
presence is set forth in Johnson v. The Black Eagle (1597) where a decree for seamens wages
was pronounced against a ship and ultimately it materialised indisputable privilege to the benefit
the seamen himself. It can be argued that, the privilege emerges from the notion of rendering
indispensable services to a ship and hence, the courts of admiralty from time immemorial have
sheltered and endorsed this as a traditional maritime lien. In addition, The Merchant Shipping Act,
1970, Section 18 provides that the master shall receive the same lien for his remuneration, similar
to seamen for his wages. Article 2(2) of the 1926 convention has explicitly laid down the
foundations of lien right against a ship for the master and left it in an equal footing with that of
seamen. But, neither master not seamen may assert their right of wage lien where a ship, except
cargo is completely demolished owing to the fact that this specific right stems from services
rendered exclusively to the ship. See also Supra note 1, p. 268-269, where it is stated that the 1926
convention ranked seamens and masters wages second immediately after law costs and custodia
legis, the 1967 convention ranked this lien in the first position and in the 1993 convention two
significant changes are brought in respect of this lien.
41
Supra note 1, p. 421-422, where it is stated that the theory of masters disbursement as a
maritime lien has been instituted in Article 2(5) of the 1926 convention and in the 1993
convention which is to rank after maritime liens incorporated in article 4 and registered mortgages.
See also Supra note 26, pp. 193-198, which states the pre-conditions that need to be satisfied under
the common-law for a legitimate disbursement. This lien is distinctive in the sense that it is
applicable to the advantage of the master and does not extend to either the seamen or the crew.
Furthermore, this lien does not venture beyond the scope of ship or freight. Emphasis is given to
the fact that the disbursement incurred or liability rendered must relate to an item or service
immediate and necessary for the voyage and must be done in the ordinary course of the masters
employment.
42
Supra note 15, p. 73,
43
Ibid., pp. 71-73, where it has been stated that the damage must be done by the ship herself. In
Currie v. MKnight (1976), the crew of the Dunlossit tore the cables of the Easlade resulting in
damage to the latter, where it was held that the owners had no maritime lien on the Dunlossit.
Moreover, the lien is futile in the absence of support of a personal action. For a lien to be invoked,
a liability of the owners for their own or the negligence or wrongful act of the employees must be
demonstrated and verified. The term owner does not limit itself to registered owners, but also
includes any other person in control of the ship. See also Supra note 1, p. 388-390, where it is
stated that the 1926 convention includes this lien in a restrictive form, the 1967 convention divides
it into two parts i.e. personal injury and property damage and the 1993 convention adds that such
injury may occur on land or on water.
44
William Tetley, Maritime Liens in the Conflict of Laws, Law and Justice in a Multistate World:
Essays in honor of Arthur T. von Mehren, Transnational Publishers Inc., Ardsley, N.Y. 2002 at pp.
439-457, < http://www.mcgill.ca/files/maritimelaw/marliensconf.pdf>, visited on 26 December
2010.
45
Necessaries provided to the vessel, claims for cargo damage, breaches of charterparty or
contributions of the ship in general average.
10

statue.
46
However, the United States and other civil law jurisdictions have granted the
aforesaid liens the complete status of maritime liens by the national legislation or
international conventions.
47
In the French code of Commerce of 1808, the claims secured by a
lien were featured as contractual and it was quite ambiguous whether the claims could be
secured against persons other than owners.
48
Embarking on a new voyage would terminate the
lien which arose from a previous voyage.
49
Moreover, the lien holders could not enforce it
against a voluntary sale of the ship and the performance of a voyage under the name of the
purchaser.
50
In Germany, the liens were granted to claimants who could enforce it only
against the ship and were subject to limitation of liability system in force.
51
Ultimately the
1926 convention has had a substantial impact on the civil law systems and the countries
within the scope of civil law
52
where the Convention had not been ratified.
53
Among the
quasi-maritime liens, general average is a condition under which unexpected sacrifice is made
or expenditure is incurred for the purpose of preserving from peril three classes of maritime
property i.e. interests in the ship, those in the freight, and in the cargo subject to common
maritime venture.
54


Chapter 2

2.1 Precedence in respect of simultaneous maritime liens: exploring classic cases
In the Stream Fisher
55
the ship collided in succession with the Squawk, the Criterion, the
Enable, and the Rio Leopold resulting in damage to the vessels and in a question of priority
among the four vessels it was held that, in respect of several claimants, they rank pari passu
unless one of the claimants get judgment in respect of a claim.
56
Since, all the judgments
(relating to four damaged vessels) were rendered thereafter subject to the issue of priority,
obtaining the first judgment could not be a possible solution, therefore the equitable answer

46
Supra note 43.
47
Ibid.
48
Supra note 32, p. 27.
49
Ibid.
50
Ibid.
51
Ibid., See Francesco Berlingieri in The maritime liens in the civil law systems, p. 28, para. 5.
52
e.g. Belgium, Brazil, France, Hungary, Italy, Poland, Rumania and Spain.
53
Ibid., p. 29, para. 3.
54
Supra note 1, p. 439, See also p. 444, where it is stated that the International Convention on
Maritime Liens and Mortgages did not include this type of lien unlike the previous two
conventions which advocated this quasi-maritime lien.
55
(1926) 26 Ll.L.Rep. 4
56
E.R. Hardy Ivamy, Casebook on Shipping Law, Fourth edition, 1987, Lloyds of London Press
Ltd, p. 14, para. 2.
11

was to set the claims on a common platform and rank them on equal footing. The Veritas
case
57
lays down the judgment that, a maritime lien in respect of salvage services formerly
rendered is suspended to a maritime lien relating to collision damage because the salvor was
seen in the same rank as a creditor who received a lien ex contractu and hence, damage
claims were given priority over prior claims ex contractu and prior salvage.
58
A maritime lien
in respect of collision damage was held to be postponed to a maritime lien of salvors in the
Inna case
59
because the services rendered by the salvors produced the res for the other lien to
take effect upon.
60
Then again, an accrued maritime lien of salvage has been pronounced to
take priority over the possessory lien of a ship repairer in the Russland case
61
, even though
they had benefitted from the repairs. Under a general heading of recent development, in the
group of maritime liens arising from contract, it is salvage that ranks ahead. This is followed
by wages and masters disbursement.
62
On the other hand, damages arising from tort rank on
equal footing even if it is proved that various damage liens took place at different hours.
63


2.2 Justifying priority ranking of maritime liens in the United States
The ranking of maritime liens are held to be governed stringently by American law (and
therefore by 46 U.S. Code section 31301 et seq.).
64
In the absence of dictatorial American
cases which dissertate an overall ranking of maritime liens, it pertains to becoming doctrinal
since majority of the work has been left in the hands of legal text writers.
65
The inverse order
rule has been given effect to compel the claimant to act promptly.
66
The sole special
legislative right (ranked first) existing in U.S is for wreck removal and is granted to the
Secretary of the Army.
67
Then again, the right of detention and sale granted to Saint
Lawrence Seaway Development Corporation for unpaid dues comprises the salient features of
special legislative rights. Expenses in custodia legis (ranked second) which reads at article
12(2)
68
of the 1993 Liens and Mortgages Convention has been expressly stipulated in 46 U.S.

57
[1900-3] All E.R. Rep. 501.
58
Supra note 55, pp. 15-16.
59
(1938) 60 LI.l.Rep. 414.
60
Supra note 55, pp. 16-17.
61
(1924) 130 L.T. 763.
62
Supra note 15, p. 80.
63
Ibid., p. 81.
64
Supra note 1, p. 876.
65
Ibid., p. 868-869, para. 2.
66
Ibid., p. 870, para. 1.
67
Ibid., pp. 70-71.
68
Ibid., p. 225, Article 12(2) of the 1993 convention states that, [t]he costs and expenses arising
out of the arrest or seizure and subsequent sale of the vessel shall be paid first out of the proceeds
12

Code section 31326(b)(1).
69
The preferred maritime liens
70
(ranked third) comprises of a)
wages of master and crew (including maintenance and cure), b) salvage and general average,
d) maritime torts including personal injury, death, property damage and cargo tort liens, e)
Longshoremen (individual, not stevedore company), and e) U.S. contract maritime liens
which are entered into before the filing of a U.S. preferred mortgage respecively.
71
In this
regard, the U.S. contract liens entered into after the filing of U.S. preferred ship mortgages
do not fall within the ambit of preferred maritime liens
72
and as a result rank low to
preferred ship mortgage liens.
73
Therefore, preferred ship mortgages
74
on U.S. documented
vessel as well as preferred ship mortgages on foreign ships whose mortgages have been
guaranteed under the Merchant Marine Act 1936, rank immediately after preferred maritime
liens.
75
Contract cargo damage liens and contract charterers liens rank instantly after foreign
ship mortgages and finally, unregistered mortgages, non-maritime liens (tax and other
government claims subordinate to maritime liens), state chattel mortgages and liens and liens
for maritime attachment secure the final rank in the hierarchy of maritime liens of the United
States.
76


2.3 Priority ranking of maritime liens in the United Kingdom
Certain general directions of ranking order in United Kingdom denote that liens ex delicto
rank ahead of liens ex contractu which latter rank among themselves in an inverse order
which attaches to the ship.
77
The general sequence is thus, maritime liens, possessory liens,
mortgages and statutory liens.
78
As a consequence of the decision made by the Privy Council
in The Halcyon Isle
79
it is now settled that the lex fori governs the recognition and ranking
of foreign maritime liens in the United Kingdom. Similar to the ranking order of U.S., special

of sale...The balance of the proceeds shall be distributed in accordance with the provisions of this
convention, to the extent necessary to satisfy the respective claims.
69
Ibid., p. 225.
70
46 U.S. Code sections 31301(5) and 31326(b)(1).
71
Supra note 44, pp. 11-12.
72
Because post-mortgage liens do not fall within the scope of 46 U.S. Code section 31301(5) and
are subordinate to preferred mortgage liens.
73
Supra note. 1, p. 875.
74
46 U.S. Code sections 31301(6) (A), 31322 and 31326(b) (1).
75
Supra note 1, p.875,
76
Ibid., p. 876
77
Ibid., p. 884.
78
Ibid.
79
The Halcyon Isle (Bankers Trust International Limited v. Todd Shipyards Corporation) |1981j
A.C. 221, |198uj 2 Lloyu's Rep. S2S, 198u ANC 1221 (P.C.), wheie Loiu Biplock iepiesenting
the majoiity opineu that maiitime liens encompass iights which aie iemeuial oi pioceuuial
anu theiefoie, is to be ueteimineu by English law as the #$> ('+1:
13

legislative rights (ranked first) and costs of arrest and custodia legis (ranked second) attains
the highest priority in the maritime liens hierarchy. Possessory liens (ranked third) and
traditional maritime liens (ranked fourth) which include a) salvage, b) damage liens, c)
seamens and masters wages, d) masters disbursements and e) bottomry, rank immediately
after each other.
80
It is seen that registered British ship mortgages take the subsequent
position preceding all unregistered ship mortgages irrespective of date and service of notice.
81

The ensuing position is reserved by the statutory rights in rem
82
whereby after issuing a writ
if the ship is sold to a third party, the right in rem would travel with the ship and this paves
the way for specific qualities of inchoate maritime lien travelling with the ship are
appropriated by the statutory right in rem.


2.4 Maritime lien ranking in Canada: Subtle differences with the United Kingdom
The order of ranking in Canada is proposed to correspond to similar rankings of maritime
liens suggested under United Kingdom law.
83
Here the term correspond maybe used in a
flexible form to portray the gap that seems to exist only in the statutory right in rem keeping
the position of the previous order of claims constant. However, the difference remains that
statutory right in rem is invoked in Canada by arrest of ship whereas in the United Kingdom it
takes place by issuing a writ.
84
Furthermore, the owner or beneficial owner possesses the
authority to bind a ship in Canada the authority extends to demise charterer as well.
85

Moreover, necessaries under statutory rights in rem extend to goods, materials, services and
insurance whereby in the United Kingdom it is confined to only goods and materials.
86
In
addition, the statutory right in rem is not preserved for stevedores in the United Kingdom as
opposed to Canada where the right can be duly exercised.
87


Chapter 3


80
Supra note 1, pp. 884-888.
81
Ibid.
82
Ibid, pp. 889-890, whereby it is stated that the statutory rights in rem include a) necessaries, b)
repairmens liens, c) towage liens, d) general average e) pilotage, f) cargo damage liens g)
charterers liens against the ship by virtue of section 20(2)(h) and (p) of the Supreme Court Act,
1981.
83
Ibid., pp. 892-897.
84
Supra note 44, p. 11.
85
Ibid.
86
Ibid.
87
Ibid.
14

3.1 Examining the approaches of Choice of law in the Conflict of laws
Due to the innate global feature of shipping, problems of conflict of law arise recurrently in
maritime law than any other fields. Under a broad spectrum conflict of law deals with choice
of the applicable law, jurisdiction of the courts and recognition coupled with enforcement of a
foreign judgment.
88
Disparate laws and procedures have led to disinclination to ensure and
implement foreign judgments. A number of hypotheses exists relating to choice of law.
Although in theory, the courts of each country could apply the rules of lex fori in terms of
foreign contracts, in practice it could lead to substandard results.
89
In the United Kingdom
where maritime liens have been termed as remedial rights rather than substantive property
rights reflects the weakness that the maritime claims have not been codified and invites forum
shopping.
90
Apart from relocating the law of jurisdiction it defeats the expectations of
necessariesmen whose title should fall within the ambit of maritime lienors and their claims
under the heading of maritime liens.
91
Foreign maritime liens are revered highly in the
United States than in any other jurisdictions
92
that pursue The Halcyon Isle.
93
Since many
maritime conflicts of law embrace governmental interests or international questions bearing
foreign affairs, hence, the choice of law, conflicts of laws, choice of forum and forum non
conveniens (where United States and foreign law overlap) are governed by federal law
principles which apply to extraterritoriality and foreign constituents.
94
The Canadian view is
influenced by the American system although the priority ranking is similar to the United
Kingdom.
95
The groundbreaking decision on this theme is the ?'2,,1% 52%@2#$#1% A7/$B
96

decided in 1972 by the Supreme Court of Canada where identification of maritime lien was

88
Supra note 32, See Allan Phillip in Conflict of laws, p. 54, para. 1.
89
Ibid., para. 5, where it is explained that Companies involved in financing the construction of
ships would be quite reluctant in the absence of certainty that mortgages created in one country
would be recognized by others.
90
Supra note 44, p. 15.
91
Ibid.
92
Ibid., pp. 16-18, In Transol Bunker B.V v. M.V Andrico Unity, 1989 (4) S.A. 325, 1989 AMC
1561, the appellate division of the Supreme court of South Africa (ignored the closer connection of
jurisdiction to Argentina where the Panamanian ship obtained supplies and later arrested in South
Africa; In Hassanein v. The Hellenic Island [1989] 1 C.L.R. 406, the Cyprus Supreme court held
that a claim for bunkers as maritime liens could not supersede a Singapore-registered first
preferred mortgage against a Singapore ship; In The Betty Ott v. General Bills Ltd., [1992] 1
N.Z.L.R. 655, the New Zealand court of appeal refused to recognise an Australian ship mortgage
as equivalent to a ship mortgage registered in New Zealand; In C'+#1,$% C2+171D$ E6$,F= 370: G
)+% v. H/$ I@9#J7'+ ;9F/$71F/, |1998j ANC 1727, the Feueial couit of E9%7+2#12 iejecteu the
necessaiies claim of a 0.S. containei lessoi unuei a lease agieement.
93
Ibid., p. 19.
94
Supra note 22, p. 265, para 2.
95
Supra note 44, p. 23.
96
|1974j S.C.R. 1248, |1974j 1 Lloyu's Rep. 174, 197S ANC 176 (Supieme Couit of Canaua).
15

subject to lex causae (the law governing the underlying legal relationship in question).
97
A
viable criticism opposing this approach would be that the parties may influence the choice of
law by supplementing a choice of law clause into their contract and provide for a maritime
lien not provided for in the proper law. However, in the United States a technicality is
adopted by applying the legal relationship to the creation of a maritime lien resulting in total
disregard to any agreements between the parties.
98


3.2 International conventions relating to Maritime Liens
Despite the perception that maritime liens supersede contractual burdens i.e. mortgages and
hypothecs has been acknowledged in both the common and civil law jurisdiction, the general
approach in the number and variety of claims secured by maritime liens instituted a principal
inconsistency between them. In the civil law jurisdiction contractual claims invoked maritime
liens as opposed to common law dominion where maritime lien status arose from claims
regarding services rendered to the ship and damages caused by the ship.
99
For the prevailing
inconsistencies and the need to bring an international uniformity in this respect a preliminary
work on a draft convention was initiated by Comite Maritime International (hereinafter
referred to as CMI) in Hamburg (in 1902), which later continued at conferences in
Amsterdam (in 1904), in Liverpool (in 1905), in Venice (in 1907) and ultimately the
diplomatic conference in Brussels in 1909 which paved the way for the adoption of the
International Convention for the Unification of Certain Rules Relating to Maritime Liens and
Mortgages, 1926 (hereinafter referred to as 1926 convention) and a revised form of that
convention in the International Convention for the Unification of Certain Rules Relating to
Maritime Liens and Mortgages, 1967 (hereinafter referred to as 1967 convention).
100
The
failure of the latter convention to replace the former, in 1985 the International Maritime
Organization and the United Nations Conference on Trade and Development, with the help
of CMI began working on a new convention the outcome of which was the International
Convention on Maritime Liens and Mortgages, 1993 which entered into force in 5 September
2004.
101
Then again, the concerned convention with arrest of vessels is the International

97
Supra note 44, p. 24.
98
Supra note 32, p. 56.
99
IMO, Considerations of Work In Respect of Maritime Liens and Mortgages..., LEG/55/4/1/, 18
September 1985, p. 16.
100
Jan Sandstrom, Abrogation of Maritime Liens for Masters Contracts, Sweden, Elander
Boktryckeri Aktiebolag, Goteborg, 1965, p. 13.
101
Implementation and interpretation of international conventions (CMI yearbook 2007-2008), A
Short Analysis Of Certain Rules On The International Convention On Maritime Liens and
Mortgage,1993, p. 321-322, < www.cmi2008athens.gr/sub4.4.pdf>, visited on 7 December 2011.
16

Convention Relating to the Arrest of Seagoing Ships, 1952 and the International Convention
of Arrest of Ships, 1999.
102
Subsidiary conventions associated are the Convention Relating
to the Limitation of Liability of Owners of Seagoing Ships, 1957 and the Convention of
Limitation of Liability for Maritime Claims, 1976.

3.3 An overview of the 1926 convention
The 1926 convention has furthered uniform recognition of ship mortgages and simultaneously
endeavoured to delimit the number of maritime claims entitled to the status of liens providing
uneven instructions with regards to priority demands.
103
Belgium, Denmark, Estonia,
Hungary and Spain are the first signatories of this convention (June 2
nd
, 1930) whereas
Belgium, France, Italy and Poland have enacted domestic legislations based upon the
provisions of this convention.
104
The principle that validity of ship mortgages should be
administered by the law of the flag has gained notable acceptance even in non signatory
countries i.e. the United Kingdom and the United States.
105
The absence of concrete security
to verify the recovery of loan granted for the building or purchase of a ship was in existence.
This existing problem of international facet was the ascertainment of the number of liens
entitled to take preference over mortgages.
106
The convention succeeded in limiting the
number of pre-mortgage liens in five general classes.
107
In fact, this convention provided a
framework for the priority of maritime liens among themselves and between mortgages and

102
Robert Force, A.N Yiannopoulos and Martin Davies, Admiralty and Maritime Law, Volume 2,
2008, Beard Books (Washington D.C),
<books.google.se/books?id=plh6HRaukKAC&printsec=frontcover#v=onepage&q&f=false>
visited on 7 December 2011, p. 266, where it is stated that, [e]nforcement problems raised by the
1952 Arrest Convention were addressed in 1999, in the International Convention on Arrest of
Ships (Geneva, March 12, 1999), which has not yet come into force internationally (it needs 10
parties to do so; it presently has seven).
1uS
John M. Criz, Ship Mortgages, Maritime Liens, And Their Enforcement: The Brussels
Conventions of 1926 and 1952, Duke Law Journal, Vol. 1963, No. 4 (Autumn, 1963), p. 672,
Duke University School of Law, accessed via Jstor, < www.jstoi.oigstable1S71249>,
accessed on 29 November 2010.
104
Ibid., pp. 674-675.
105
Ibid., p. 676.
106
Ibid., p. 677, where it is explained that a vessel which is subject to a ship mortgage would pick
u higher ranking of liens as it sailed from one port to another. Chances there may be that the ship
after calculating the number of liens could ultimately prejudice the security of mortgages.
107
Supra note 32, See Francesco Berlingieri in The 1926 and 1967 Conventions, p, 18, para 1,
Although the classes have been divided under a numerical order (five), but it must be remembered
that each class consists of several types of liens. a) Judicial costs, taxes, cost of watching and
preservation (of the ship), b) claims for wages for master and crew, c) claims for salvage reward
and contributions in general average, d) Indemnities for damages in respect of collision, personal
injuries and damage to goods and e) claims arising from contracts made by the master in his
capacity as such outside the ships homeport for the preservation of the ship or the continuation of
the voyage.
17

other claims.
108
It does not provide any bar, rather encourages national law to grant liens in
respect of claims not specified in the convention without altering the priority specified.
Furthermore, the convention is to apply to all contracting states when the vessel to which the
claim relates belongs to a contracting state.
109
Then again, article 3 of this convention
establishes that certain types of lien which include materialmens liens rank above mortgages.
This is as opposed to American law where under the preferred mortgages act of 1920,
registered mortgages take priority over succeeding materialmens liens and in the Great
Britain where registered ship mortgages rank higher than claims of supply and repairmen
under municipal law.
110
Difficulties may arise when a vessel of a nonconventional is arrested
and sold in a contracting state.
111
The reasons as to why important maritime countries
112
have
abstained from ratifying this convention is assumed due to the multiplicity that exists in the
domestic legislations relating to maritime law in different countries and the technical loophole
that exists therewith in obtaining the approval of different commercial entities. The 1926
convention does not warrant any assurance to the distribution from the proceeds of sale to
follow accordingly and neither does limiting the number of maritime liens provide a
mortgagee with a comparatively high position. Apparently the objective of unification is left
undone, with miniscule changes to the detriment of the mortgagee.

3.4 1962 Convention v. 1967 Convention (comparison in system of priorities)
The 1967 convention (propounded as a revision of the 1926 convention) was designed quite
similar to that of the 1926 convention, but differences remain on the fact that this convention
reduces the number of maritime liens in so far as it eliminates the claims based on contract by
changing the priority between them, including provisions connected to deregistration of
vessels and adding a provision for termination in the event of a forced sale.
113
It is meticulous
in the sense that the wording related to mortgages, priority ranking of liens and the authority

1u8
Article 1 of the International Convention for the Unification of Certain Rules Relating to
Maritime Liens and Mortgages, 1926, p. 31, The American Journal of International Law, Volume
27, No. 1, Supplement: Official Documents (January 1933), <www.jstoi.oigstable221SS98>,
visited on 29 November 2010.
109
Ibid., Article 14, p. 34.
110
Supra note 98, pp. 677-678.
111
Ibid.
112
The United Kingdom, The United States of America, The Federal Republic of Germany, Japan,
The Netherlands, The USSR.
113
Report by the UNCTAD (United Nations Conference on Trade and Development), secretariat,
Maritime Liens and Mortgages: Preliminary analysis of possible reforms in the existing
international regime of maritime liens and mortgages, Working group on International Shipping
Legislation, Tenth session, Geneva, 24 September 1984, p. 12, [53(B)].
18

of the state to introduce liens are not listed.
114
However, certain differences exist between the
two conventions. The 1926 convention separated costs due to the state and expenses incurred
by one or more creditors as opposed to the 1967 convention which is free from such
dichotomy only states that such cost is to be awarded by the court.
115
Tonnage dues, light or
harbour dues and charges of same character (1926 convention, Article 2, No. 1) are
preserved in the 1977 convention with a slight change in wording i.e. port, canal and other
waterway dues.
116
Then again, the cost of watching and preservation from the time of entry
of the vessel into the last port (1926 convention, Article 2, No. 1) are incorporated as cost
awarded by the court and arising out of the arrest and subsequent sale of the vessel in the
1967 convention (Article 11, paragraph 2).
117
Furthermore, indemnities for loss of or damage
to cargo or luggage (1926 convention, Article 2, No. 4) was not retained in the 1967
convention.
118
The fifth category of liens entered into article 2 of the 1926 convention was
quite rightly abolished by the 1967 convention owing to the fact that ship-owners should not
be permitted to borrow money for day-to-day operation of the ship so as to affect the interest
of the mortgage or hypothec.
119
This reflects the prudence of CMI to avoid certain maritime
liens which have been the main criticism in so far as many countries are aware that the
commercial duties of the master have been reduced.

Chapter 4

4.1 Examining the recent convention on maritime liens (the 1993 convention)
The convention of 1993 signed by 57 countries and ratified (or acceded) by 11 countries came
into force in 5 September 2004 and has gained satisfactory international acceptance.
120
An
extension which states ...including costs of repatriation and social insurance contributions
payable on their behalf is affixed to article 4, 1(i) of the 1967 convention and reserved in the
1993 convention [4, 1(a)] which.
121
Article 4, 1(iii) of the 1967 convention relating to claims

114
Ibid.
115
Supra note 32, See Francesco Berlingieri in Unification of substantive law on maritime liens:
the 1926 and 1967 Brussels Conventions, p. 49.
116
Ibid., See Francesco Berlingieri in The 1926 and 1967 Conventions, pp. 19-20.
117
Ibid., p. 21.
118
Ibid., whereby it is explained that owners of cargo or luggage do not require such protection as
they are free to choose the carrier and moreover they are entitled to insurance depending on their
willingness to insure.
119
Ibid., p. 22.
120
Supra note 98.
121
International Convention on Maritime Liens and Mortgages, 1993, Held at the Palais des
Nations , Geneva from 19 April to 6 May
19

in respect of loss of life or personal injuries have safely secured its position in article 4, 1(b)
of the 1993 convention.
122
However, article 4, 1(ii) of the 1967 convention on port, canal and
other waterway dues and pilotage dues of the 1967 convention, despite of being safely
preserved in the 1993 convention has been endowed a lower rank [article 4, 1(d)] compared to
the former convention. A change in the order is also observed where claims for salvage as
incorporated in article 4, 1(v) of the 1967 convention is given a rather high position [article 4,
1(c)] of the 1967 convention.
123
It is also monitored that claims for salvage also ranks higher
than port, canal and other waterway dues and pilotage dues, a category which was given
second highest position in the 1967 convention. Then again, the claims based on tort arising
out of in respect of damage to property enumerated in article 4, 1(iv) of the 1967 convention
has been slightly modified by including physical loss or damage [article 4, 1(e)].
124

Moreover, this category has been positioned in the last rank whereas it was prioritised over
claims for salvage, wreck removal and contribution in general average in the 1967
convention. It appears that the 1993 convention is lenient in so far as it empowered national
law to grant other maritime liens [article 6] in respect of claims not specified in the
convention.
125
As regards to the peculiar features of maritime liens, article 8 of the 1993
convention states that the maritime liens incorporated in article 4 follows the vessel,
notwithstanding any change of ownership or of registration or of flag.
126
As regards to
extinction of maritime liens, it safely preserves the one year period [article 9] as mentioned in
article 8 of the 1967 convention.
127


4.2 Problems of present conventions in force (the 1926 and the 1993 convention)
Neither has the 1926 convention nor the 1967 convention has achieved pervasive
international acceptance.
128
Despite the effort to revise and replace the former convention, the
1967 convention signed by 22 states was ratified by only four states, namely, Denmark,

1993.<www.jus.uio.no/lm/un.imo.maritime.liens.and.mortgages.convention.1993/portrait.pdf>, p.
2, visited on 7 January 2011.
122
Ibid.
123
Ibid.
124
Ibid.
125
Ibid., p. 3.
126
Ibid., p. 4, See Supra note 32, by Francesco Berlingieri in Unification of subtsantive law on
maritime liens: the 1926 and 1967 Brussels conventions, p. 51, where it is stated that, the 1926
convention governs two peculiar features of maritime liens, the fact that they travel with the ship
and the priority of claims secured thereby. On the other hand, the 1967 convention deals with all
the unique characteristics of maritime liens.
127
Ibid.
128
Supra note 99.
20

Finland, Norway and Sweden.
129
Till date only 11 countries have ratified or acceded the 1993
convention and therefore, the 1926 convention is still in force in certain jurisdictions. The
CMI anticipated in amalgamating and uniting the maritime law of liens and mortgages
ultimately improving the status of ship mortgage by reducing the number of liens.
130
The
futile venture of such amalgamation and unification is reflected in the number of countries
ratifying the conventions. It has been assumed that the failure of both 1926 and 1993
conventions is probably the fact that maritime liens and mortgages have been under the
dominion of national legislation from time immemorial.
131
Since national approaches differ
from one another regarding the number of claims ultimately has a repercussion on ship
financing possibilities.
132
Both the existing conventions of 1926 and 1993 apparently
recognised too many maritime liens although the categories have been confined into five
classes. Some states put forward the proposal of increasing the number of liens or in the scope
of a particular lien in the 1926 convention.
133
The most frequent suggestion of incorporating
social insurance contribution within the lien for wages which took its place in the 1993
convention.
134
The signatories of the 1926 convention questioned the high ranking of port,
canal and other waterway dues and pilotage dues.
135
In the 1993 convention this doubt was
eliminated by lowering its rank. Although the CMI has done much within its scope to
rearrange the orders and adhere to the preferences of the state parties, it seems that it still
remains to be inconsistent with various national approaches. It is argued that the inclusion of
manager in the 1993 convention is pertinent as the manager acts in the name and for the
account of the ship-owner and whatever liabilities are created during execution of the duties
are rendered upon the ship-owner. An intricate flaw of the 1993 convention is that the 1993
convention (article 4) does not state whether the maritime lien covers the claim itself or its
accessories as well.
136
It bears a great significance for the application of this convention by its

129
Supra note 98, See footnote 3, where it is elaborated that Belgium, Brazil, Estonia, France,
Hungary, Italy, Poland, Romania and Spain have ratified the 1926 convention and Algeria,
Argentina, Cuba, Haiti, Iran, Lebanon and Madagascar have acceded to it. It has been in force the
member states from 1931. Denmark, Finland, Norway and Sweden had ratified the 1926
Convention but denounced it in 1 March 1965.
1Su
The Difficult quest for a Uniform Maritime Law: Failure of the Brussels Conventions to
Achieve International Agreement on Collision Liability, Liens and Mortgages, The Yale Law
Journal, Volume 64, No. 6, 1995, May, p. 894, <www.jstoi.oigstable794114>, accessed on
29 November 2010.
131
Supra note 110, p. 20, See (B), Different national approaches ,68.
132
Ibid.
133
Ibid., p.19, See 67(j).
134
Ibid.
135
Ibid., See 67(k).
136
Supra note 98, p. 329.
21

signatories. Then again, in certain jurisdictions wages cannot be attached or assigned and
therefore, the maritime lien arising from such claim cannot be attached.
137
These diverse
characteristics and multiple preferences of maritime liens in different jurisdictions have acted
as hindrance in limiting the number of liens and leading to the failure of unification of the
present conventions in force.

4.3 Different national approaches relating to maritime liens
The United Kingdom has not ratified any of the three conventions and the classes of liens
under English law have emanated from both common law and statute.
138
The categories of
incidents invoking maritime liens in the United States
139
appear to be wider than under
English law and with the emergence of new situations it has to be decided whether the claim
falls within the ambit of liens.
140
Under English law, a person in charge of supplying repairs
or other necessaries has to rely on possessory lien or a statutory action of right in rem under
section 20(2) (h) of the Supreme Court Act, 1981. But a person advocating the similar claim
will enjoy a maritime lien under the law of United States.
141
The French maritime liens
142
is
a major replication of article 2 of the 1926 convention. Then again, the laws of Australia,
India and New Zealand have a limited number of liens and similar to the United States it does
not include port, canal and other waterway dues and pilotage dues or wreck removal
expenses.
143
China, the Republic of Korea, the Union of Soviet Socialist Republic, and
Poland have adopted the list incorporated in the 1926 convention while the maritime liens of
Denmark, Finland, Norway and Sweden are a reflection of article 4 of the 1967 convention.
144



137
Ibid.
138
Supra note 110, p. 20, where a succinct list of claims have been stated; a) bottomry, salvage,
seamens wages, collision damage, b) masters wages and disbursements, c) fees and expenses of
receivers wreck, d) remuneration for services rendered by coastguards, e) damage to adjoining
lands in case of shipwreck assistance.
139
Supra note 13, p. 512, where it is stated, [t]hey include liens for salvages, wages of officers
and crew (but not masters wages), torts like collisions, claims for loss of life or personal injuries,
loss of or damage to cargo, general average contribution, equipment, supplies and repairs to the
ship, towage, pilotage, stevedores fees and dock duties.
140
Ibid., p. 21, para. 71.
141
Ibid.
142
Ibid., where it is explained that the French maritime liens are governed by Law number 67-5 of
3 January 1967 and decree number 67-967 of 27 October 1967. Article 31-1 and 31-2 consist of
claims enlisted in article 2 with the deletion of expenses incurred in the common interest of the
creditors in order to preserve the vessel and light dues. Furthermore article 31-3 covers claims
which arise from contract of engagement which comprise of indemnities owed to the master and
crew and fees featuring social character and connected to contract of agreement.
143
Ibid.
144
Ibid.
22

4.4 A viable answer: drafting a new convention considering domestic approaches
Attainment of uniformity among maritime liens of dissimilar jurisdictions (diverse national
approaches) is within the sphere of possibility. It should not be the self-confined approach of
the international maritime authorities, but the combined effort of national and international
shipping communities, banks and other financial institutions concerned.
145
Maritime liens
ensure the safety of the ship and the safe continuance of its voyage. But this should not in any
way affect mortgagees security in the ship and obstruct ship financing. As regards to the
burning issue of the need for an uneven yet constant and international standard uniform list
of maritime liens, it must be acknowledged that uniformity means uniformity with regards to
the categories of liens and the ranking of liens.
146
One of the major reasons as to why major
maritime states have abstained from ratifying the conventions on maritime liens is due to
wide range or restricted list of maritime liens.
147
Furthermore, with respect to ranking, many
countries adhere to the law of the flag while some countries observe the law of the forum (lex
fori) which frustrates the enforcement of maritime claims.
148
Although the conventions
empower state parties to accept other forms of maritime liens apart from those mentioned in
the convention, it again leaves a gap of uncertainty as to whether maritime liens accepted by
one jurisdiction be accepted in other jurisdictions. It is apparent that an entire amendment of
the conventions is a cumbersome process. One alternate approach maybe to draft a
completely new convention comprising a set of uniform rules of conflict of laws.
149

Meticulous Re-examination of the existing conventions coupled with careful observation of
different national approaches to maritime liens should be prioritised. The new convention
should refer to the law of the flag in so far each country may be warranted that its own rules
on substantive law, including the rules on priority will apply to its own ships in all contracting
states.
150





145
Jan Aser, Maritime Liens and Mortgages in the conflict of Laws, , Elander Boktryckeri
Aktiebolag, Goteborg, 1963, p. 30, para. 1.

146
Ibid., para. 2.
147
Ibid.
148
Supra note 44, p.29, where it is explained that the Rome Convention 1980, by virtue of aritcle 3
and 4 should change the Halcyon Isle rule and establish the applicable law on contract rather than
determination by the lex fori.
149
Ibid.
150
Ibid.
23

Conclusion

Although the existing conventions did not receive the international acceptance as expected, in
principle, the solution as regards to the law which should govern the ranking of maritime liens
is the law as stated in the convention. It is derived from the purpose of implementing a unified
law among the convention countries. Nevertheless, provisions as laid down by the convention
bestow the scope to accept maritime liens other than those stated in the conventions. This
must under all circumstances be interpreted as an obligation towards other states in so far as
the states are under the privilege to accept maritime liens acknowledged by other states. As to
the question of restricting the number of maritime liens, so as to secure the rights of the
mortgagee or the financer, it can be assumed that countries which have wide categories of
claims giving rise to maritime liens must come to a common plateau with other states for the
common benefit of the shipping industry. This restriction must be done taking into account
the national laws of every state intertwined with shipping business. The major maritime states
(developed countries) should step forward and assist CMI and UNCTAD (United Nations
Conference on Trade and Development) in narrowing down the most essential maritime liens.
This act of concession by states with acceptance a wide range of maritime liens will
encourage states that have abstained from ratifying the convention in accepting the uniformity
brought about by the process. Strategies should be formulated for either amendment of the
existing conventions or the creation of a complete new set of international instrument which
will comprise restricted number of maritime liens which preserves the security of maritime
claimants at large and at the same time balancing the security of the mortgagee. This must
however, not be crafted to favour the mortgagees at the expense of other claimants. Thus,
greater international participation can contribute in making a difference in the realm of
maritime shipping development. Furthermore, in order to reduce the problems in conflict of
laws, the weaknesses of the lex fori (which is applied only in procedural matters) must be
acknowledged. This encourages forum shopping where the party will attempt to obtain results
from the country where the law is favourable. In such a situation the law of the flag is most
preferable. The lex fori should not in any ways be allowed to displace the law of the
jurisdiction which is connected to the parties. In this way, the problems will dissipate
uplifting harmonization in the realm of conflict of laws.



24

References

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25

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