The first attempt to achieve uniformity in maritime lien law was the International Convention for the Uniformity of Certain Rules Relating to Maritime Liens and Liens of 1926. THE ENFORCEMENT OF MARITIME LIENS - A GENERAL DISCUSSION (a) Enforcement against other creditors. i) South African Law (ii) English Law. A critical analysis of the common causes of enforcement of maritime lien against bona fide purchasers (i) Inchoate nature of maritime lien (ii) Security.
In fact, according to The Father Thames 1, the maritime lien is "easier recognized than defined". However, most writers 7 are of the opinion that The Bold Buccleugh 8 was the first case which gave a precise definition of the maritime lien. Justice Story spoke of maritime liens only in the sense of another legal right peculiar to the Admiralty Act.
The main distinguishing feature of the maritime lien is that, unlike common law liens, it. Another characteristic of the maritime lien is that it is a secondary right or interest and it is. Section 1 (1) (s) of AJRA read with s6 (1) leads to the conclusion that since English law confers maritime lien status on a wage claim, 56 a claim falling under s1 (1) (s) accordingly enjoys the protection of a maritime lien in South African law.
This chapter discussed the nature of the maritime lien and it was established that it is not an easy legal concept to define.
ENFORCEABILITY OF COMMON LAW LIENS, MARITIME LIENS AND THE STATUTORY RIGHT IN REM CONTRASTED
The court pointed out that 'the law requires that the costs arise while the party claiming is in possession of the object'. This is a common law right that grants the right to retain property that is already in the possession of the lien holder through the contract. 6. iii) Jackson7 referred to common law liens as a legal remedy. In other words, a maritime lien cannot be used to enforce a claim based on grounds completely independent of the lien. iv).
A statutory lien arises at the time the warrant of arrest is issued and not from the time the ship causes damage or when services are rendered to the vessel. Section 3(4)(b) of the AJRA states that a maritime claim can be enforced by an action in rem if the owner of the property to be arrested would be liable to the claimant in an action in personam in respect of the cause of action in question. Thus, in the case of The Monica S 35, in November 1966, cargo owners issued a writ in rem against shipowners, describing the ship against which proceedings were taken as the Monica Smith and claiming damages for breach of a contract of carriage of goods.
The court ruled that the defendants were not entitled to the compensation requested in the motion because "the change of ownership of the ship after the issuance of the title deed, but before service or arrest, did not extinguish the legal right in rem." He considers what the effect of the judgments would be if the ship was sold after the claim arose and the judgment was entered, but before the judgment was served on the ship.
CONCLUSION
The theory of personification is said to be one of the theories that forms the legal basis behind the concept of maritime lien. 10 Trichart Anton „Maritime liens and the Conflict of Laws‟ Transactions of the Center for Business Law (2011) Issue 47 at 40. 16 Hilton Staniland „Roman Law as the Origin of the Maritime Lien and the Action in rem in the South African Court (1996) 2 Fundamina 285.
The mere wood, iron and sails of the ship cannot in themselves violate the law. The usual mode of proceeding (in the sixteenth century) was by arrest either of the defendant or of his estate. This makes it difficult to explain the arrest of the vessel in cases where the owner is not personally liable.
Thomas has pointed out that the procedural theory does not explain why a maritime lien can be enforced against a bona fide purchaser and is not entirely consistent with the fact that certain maritime liens arise independently of the shipowner's personal liability. There may be a right in rem regardless of the existence of a maritime lien. The action in rem under a maritime lien is essentially a claim against the owner of the ship and the ship is not liable unless the owners are.
Recovery in a real action is not limited to the real value, if the defendant defended the real action. 43. These powers often overlapped with those of the common law courts, thus depriving them of some of their jurisdiction. Section 3(1) provides that a maritime claim may be brought in the Admiralty Court if it is a 'maritime claim' as defined in S1 AJRA.
Enforcement against an asset when the owner of the asset at the time of the attachment of the lien is not liable for the claim personally. 12. They argued that had it not been for the negligence of the master or pilot, the collision would not have occurred. That was clear from paragraph 10 of the First Schedule to the Succession Act 33 (which was a provision within the meaning of s 6(2) of the Admiralty Jurisdiction Regulation.
41 In The Barnstable 42, the Barnstable collided with the Fortune, resulting in the complete loss of the Fortune. The owners of the Barnstable barge accepted liability, but commenced proceedings for damages against the lessee of the barge.
ENFORCEMENT OF MARITIME LIENS AGAINST GOOD FAITH PURCHASERS WITHOUT NOTICE
Gilmore and Black noted that this doctrine can be used as a defense by the bona fide purchaser to erase the durability of the maritime lien. A critical analysis of the common grounds for enforcing maritime liens against bona fide purchasers. For example, in MV Andrico Unity 18 it was held that the 'right of lien is exercised by the arrest of the ship in brake and that it subsequently goes back to the time when it first moored'.
Another possible reason for enforcing maritime liens against third parties is to ensure that the lien holder can relinquish possession of the ship without hesitation. It is also arbitrary because some of the reasons provided by maritime lien law for such arrest are not sufficient to justify such seizure. There are a number of solutions that can help resolve the issue of enforcing liens against an innocent buyer.
Article 1(b) of the International Convention on Maritime Liens and Mortgages 1993 provides for the registration of mortgages, but is silent on the registration of maritime liens. Heathcote is of the view that the non-registration of liens prevents the buyer from providing information on outstanding claims of the vessel's liens, so he must rely on the information provided by the seller. 12 Boris Kazolchyk „The evolution and current state of the ocean bill from the perspective of banking law“.
The question of the indefeasibility of maritime liens has been an issue for years for a number of reasons. Firstly, since the introduction of the maritime lien, there has been a dispute between maritime lien and ship lien. 27 International Uniformity of Maritime Liens and Mortgage: The 1965 New York Conference of the Committee Maritime International (1966) 41 N.Y.U.L.
Howard AT, „Personification of the ship: fact or fiction Journal of Maritime Law and Commerce 319. Kazolchyk B, „Evolution and current state of the ocean Bill of Lading from a banking law perspective Journal of Maritime Law and Commerce 161. Staniland H, „Roman law as the origin of the maritime lien and the action in rem in the South African court' (1996) 2 Fundamina 285.
Trichart A, „Maritime liens and the conflict of law transactions of the Center for Business Law 373. Bradfield G, 2009, „The nature and scope of contemporary maritime liens in South African admiralty law‟ LLM dissertation.
