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MARITIME LIENS: INTRODUCTION

MARITIME LIENS: INTRODUCTION. AJRA REFERENCES TO 'MARITIME LIEN' SECTION 1(1)(y) – MARITIME CLAIM SECTION 3(4)(a) – ENFORCEMENT PROCEDURE SECTION 11(4)(e) – RANKING AGAINST FUND NO STATUTORY DEFINITION MV FIDIAS 1986 (1) SA 714 (D) AT 717. DEVELOPMENT IN ENGLISH ADMIRALTY LAW.

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MARITIME LIENS: INTRODUCTION

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  1. MARITIME LIENS: INTRODUCTION • AJRA REFERENCES TO 'MARITIME LIEN' • SECTION 1(1)(y) – MARITIME CLAIM • SECTION 3(4)(a) – ENFORCEMENT PROCEDURE • SECTION 11(4)(e) – RANKING AGAINST FUND • NO STATUTORY DEFINITION • MV FIDIAS 1986 (1) SA 714 (D) AT 717

  2. DEVELOPMENT IN ENGLISH ADMIRALTY LAW • HARMER v BELL: THE BOLD BUCCLEUGH (1861) 7 Moore PC 267 A MARITIME LIEN DOES NOT INCLUDE OR REQUIRE POSSESSION. THE WORD IS USED IN MARITIME LAW NOT IN THE STRICT LEGAL SENSE IN WHICH WE UNDERSTAND IT IN COURTS OF COMMON LAW, IN WHICH CASE THERE WOULD BE NO LIEN WHERE THERE WAS NO POSSESSION, ACTUAL OR CONSTRUCTIVE; BUT TO EXPRESS, AS IF BY ANALOGY, THE NATURE OF CLAIMS WHICH NEITHER PRESUPPOSE NOR ORIGINATE IN POSSESSION. THIS WAS WELL UNDERSTOOD IN THE CIVIL LAW,… HAVING ITS ORIGIN IN THIS RULE IN CIVIL LAW, A MARITIME LIEN IS WELL DEFINED ... TO MEAN A CLAIM OR PRIVILEGE UPON A MARITIME RES TO BE CARRIED INTO EFFECT BY LEGAL PROCESS: ... THIS CLAIM OR PRIVILEGE TRAVELS WITH THE THING, INTO WHOSOEVER POSSESSION IT MAY COME. IT IS INCHOATE FROM THE MOMENT THE CLAIM OR PRIVILEGE ATTACHES, AND, WHEN, CARRIED INTO EFFECT BY LEGAL PROCESS, BY A PROCEEDING IN REM, RELATES BACK TO THE PERIOD WHEN IT FIRST ATTACHED.

  3. MARITIME LIEN • TRANSOL BUNKER BV v MV ANDRICO UNITY 1989 (4) 325 (A) • CORBETT CJ: `[T]HE ESSENTIAL EFFECT OF A MARITIME LIEN, IN ENGLISH ADMIRALTY LAW AT ANY RATE, IS THAT IT ATTACHES EX LEGE TO THE SHIP OR OTHER PROPERTY (FOR CONVENIENCE I SHALL MERELY REFER TO THE SHIP) IN RESPECT OF WHICH THE MARITIME CLAIM AROSE AND IT FOLLOWS THE SHIP, IRRESPECTIVE OF CHANGES OF OWNERSHIP OR POSSESSION, AND IRRESPECTIVE OF THE KNOWLEDGE OF THE NEW OWNER OR POSSESSOR. THE LIEN DOES NOT DEPEND UPON THE LIENEE ... ACQUIRING OR RETAINING POSSESSION OF THE SHIP ... [I]T ENABLES THE LIENEE TO BRING AN ACTION IN REM, EVEN THOUGH NO CLAIM IN PERSONAM LIES AGAINST THE OWNER OF THE SHIP, AND IT CONFERS ON THE LIENEE A CERTAIN PREFERENCE WHEN THE SHIP IS SOLD AND THEIR IS A LIMITED FUND FOR THE SATISFACTION OF CREDITORS’ CLAIMS. THE LIEN IS ASSERTED BY THE ARREST OF THE SHIP IN A PROCEEDING IN REM AND IT THEN RELATES BACK TO THE TIME WHEN IT FIRST ATTACHED.’

  4. CHARACTERISTICS OF MARITIME LIENS • PRIVILEGED CLAIM • MARITIME PROPERTY • FOR SERVICE RENDERED TO OR DAMAGED INFLICTED BY PROPERTY • ACCRUING FROM MOMENT OF OCCURRENCE OF EVENTS OUT OF WHICH CAUSE OF ACTION ARISES • TRAVELLING WITH PROPERTY SECRETLY AND UNCONDITIONALLY • ENFORCED BY ACTION IN REM

  5. COMPARISON WITH COMMON LAW LIEN • EUROMARINE INTERNATIONAL OF MAUREN v THE SHIP THE BERG 1984 (4) SA 647 (N) AT 652 • INDEPENDENT OF POSSESSION • NON-CONSENSUAL • NOT EXTINGUISHED BY TRANSFER TO A BONA FIDE POSSESSOR WITHOUT NOTICE • MAY ARISE WITHOUT PERSONAL LIABILITY OF OWNER OF PROPERTY

  6. CONSEQUENCES OF CLASSIFICATION OF CLAIM AS GIVING RISE TO A MARITIME LIEN • BASIS FOR ACTION IN REM • AJRA, s 3(4)(a) • PRIORITY IN RANKING • AJRA, s 11(4)(e) • CF ENGLISH ADMIRALTY LAW

  7. WHAT CLAIMS GIVE RISE TO MARITIME LIENS? • 'LOCAL' MARITIME LIENS • 'ESTABLISHED' • SALVAGE • DAMAGE DONE BY A SHIP • SEAMAN'S WAGES • MASTER'S WAGES AND DISBURSEMENTS • BOTTOMRY AND RESPONDENTIA BONDS • 'UNCERTAIN' • 'FOREIGN' MARITIME LIENS

  8. FOREIGN MARITIME LIENS • SHOULD THE SOUTH AFRICAN COURTS RECOGNISE FOREIGN MARITIME LIENS IN THOSE INSTANCES IN WHICH THE EVENTS GIVING RISE TO THE FOREIGN MARITIME LIEN WOULD NOT, IF THEY HAD OCCURRED WITHIN THE SOUTH AFRICAN COURT’S JURISDICTION, BE RECOGNISED AS HAVING GIVEN RISE TO A MARITIME LIEN? • WOULD AN ENGLISH COURT SITTING ON 1 NOVEMBER 1983 RECOGNISE FOREIGN MARITIME LIENS IN THOSE INSTANCES IN WHICH THE EVENTS GIVING RISE TO THE FOREIGN MARITIME LIEN WOULD NOT, IF THEY HAD OCCURRED WITHIN THE ENGLISH COURT’S JURISDICTION, BE RECOGNISED AS HAVING GIVEN RISE TO A MARITIME LIEN?

  9. SOUTH AFRICAN CASE LAW • MV KHALIJ SKY 1986 (1) SA 485 (485 (C) • MV FIDIAS 1986 (1) SA 714 (D) • MV ANDRICO UNITY 1987 (3) 794 (C) • MV KALANTIAO 1987 (4) SA 250 (D) • MV ANDRICO UNITY 1989 (2) 325 SA (A)

  10. ENGLISH LAW • CONFLICT RULES • PROCEDURAL – LEX FORI • SUBSTANTIVE – LEX CAUSA • AUTHORITIES • THE COLORADO [1923] P 102 • RANKING • FRENCH HYPOTHEQUE • THREE JUDGEMENTS • THE HALCYON ISLE [1980] 3 AllER 197 (PC) • RANKING • MARITIME LIEN • PRIVY COUNCIL • 3:2 SPLIT

  11. THE HALCYON ISLE [1980] 3 AllER 197 (PC) • MAJORITY • MARITIME LIEN PROCEDURAL RIGHT • JURISDICTIONAL AND REMEDIAL IN NATURE • LEX FORI • PAROCHIAL POLICY CONSIDERATIONS • MINORITY • MARITIME LIEN AS SUBSTANTIVE RIGHT • LIMITED RIGHT OF PROPERTY SECURING CLAIM • CONFERRED BY LEX LOCI • ORDER OF PRIORITY THAT OF LEX FORI • LEGITIMATE EXPECTATIONS OF CREDITOR

  12. MV ANDRICO UNITY 1989 (2) 325 SA (A) • MAJORITY APPROACH IN HALCYON ISLE • ARGUMENTS IN FAVOUR OF LEX FORI APPROACH • GENERAL CHOICE OF LAW RULE THAT FOREIGN CONTRACT GIVEN SAME LEGAL CONSEQUENCES AS ACCORDED UNDER PROPER LAW NOT APPLICABLE WHERE DEALING WITH DISTRIBUTION OF LIMITED FUND • PRIORITIES IN RANKING BEAR NO RELATION TO RULE APPLICABLE TO OTHER CHARGES ON PROPERTY AS SECURITY FOR DEBT • NOT ONLY AFFECT PRIORITIES BUT ALSO GIVE RISE TO NEW CLASSES OF CLAIMANTS ENTITLED TO BRING ACTION IN REM • TWO BASES • QUESTION OF JURISDICTION • PROCEDURAL AND REMEDIAL RIGHTS

  13. CRITICISMS OF DECISION IN ANDRICO UNITY • RECOGNITION NEED NOT POSE RANKING DIFICULTIES WHILE NON-RECOGNITION FAILS TO GIVE EFFECT TO MOST IMPORTANT SUBSTANTIVE ATTRIBUTES OF MARITIME LIEN • DETRACTS FROM INTERNATIONAL UNIFORMITY • DIFFERENCES IN RANKING BETWEEN ENGLISH LAW [PRINCIPLE] AND SOUTH AFRICAN [STATUTORILY DETERMINED] • COMPLEX NATURE OF LIEN: JURISDICTIONAL; PROCEDURAL; SUBSTANTIVE; REMEDIAL; PROPRIETARY • FAILURE TO DIFFERENTIATE BETWEEN VARIOUS MARITIME LIENS

  14. INTERNATIONAL CONVENTION ON MARITIME LIENS AND MORTGAGES 1993 • INTERNATIONAL UNIFORMITY • RECOGNITION TO SALIENT CHARACTERISTICS OF ENGLISH MARITIME LIEN • RANKING • LIST OF CLAIMS GIVING RISE TO MARITIME LIENS • LIMITED LIFESPAN OF ONE YEAR • FLEXIBILITY • DOMESTIC LIENS • 6 MONTHS • TRAVELS WITH SHIP INTO BONA FIDE NEW OWNERSHIP 60 DAYS

  15. TRANSFER AND EXTINCTION OF MARITIME LIENS • TRANSFER • AJRA, s 11(8) • THE ARGUN 2003 (3) SA 149 (C) • EXTINCTION • DISCHARGE OF UNDERLYING DEBT BY PAYMENT OR RELEASE • DESTRUCTION OF PROPERTY OR CAPTURE • AGREEMENT • JUDICIAL SALE • PROVISION OF SECURITY OR UNDERTAKING TO OBTAIN RELEASE OF PROPERTY FROM ARREST • INTERVENTION OF INSOLVENCY WHILE LIEN INCHOATE • LACHES (DELAY IN ASSERTING THE LIEN) • EXTINCTIVE PRESCRIPTION

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