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Maritime Liens and MortgagesBy
*Sani M. Adam
1. INTRODUCTION
One of the most important means of interaction between nation states is
trade and an important aspect of international trade is the shipment of
goods. In fact, the ability of nation states to maintain harmonious and
beneficial trade relations with each other depends on the efficacy and
standard of service rendered by the shipping industry, we are informed. 1
Ships by their vast size, weight and sophistication coupled with the
vulnerable nature of their voyages are open to varied risks traversing
many seas and continents of the world. This exercise, we are told, often
results in far reaching legal consequences where the ships are engaged in
commercial enterprise, whether as passenger and for Cargo vessel 2.
Hence, there must be understanding between nations particularly 0; the
legal issues, rights, obligations, immunities, benefits etc arising from the
innumerable and diverse situations arising during the course of the
voyage of the ships. These interests, says a writer, sometimes been
exposed to extinction or enforcement in foreign jurisdictions under laws
different from those applicable in the vessel's state of registration. 3 It is
such developments and the difficult experiences of parties involved that
led to the various International Conventions on Maritime liens and
mortgages. 4 These conventions were targeted at establishing uniform
rules for the recognition and enforcement of these varied interests within
the corpus jurist of the contracting and ratifying nations. The varied
interests which are legally recognisable as attaching and enforceable
against a ship or vessel have been classified into proprietary rights
because they affect the paper intends to examine some of the prominent
of such proprietary rights and interests in vessels, i.e. Maritime Liens and
67 I P age
Mortgages, their meaning, evolution, nature, types and the various
international Conventions on Maritime liens and mortgages.
2.0 MEANING, EVOLUTION AND NATURE OF MARITIME LIENS
2.1 Meaning of Lien:
Authors have offered different definitions to lien, though not substantially
differing. A lien has been defined as "A right to retain lawful possession of
a property of another until a claim by the person in possession against
the owner is met". 5 The author explaining further said, "It is sometimes
regarded as a form of 'self help' by the person claiming the lien in order
to induce the owner of the property to comply with his obligation to pay
or otherwise satisfy the claim of the other". 6
t.C, Ilogu defines a lien as
"that interest or right in the property of another which renders
or constitutes that property as a 'security' for any claim arising
from such identified interest or right". Usually, he explains,
"such interest or right arises from some commercial transaction
which imposes an obligation or Duty on the party who 'owns'
the property (the lienor). Where such obligation or duty remains
unfulfilled, the other party to the transaction (lienee) may
exercise the right of 'lien' over the identified property belonging
to the party in default until the obligation, duty or act is fulfilled
or remedied". 7
The foregoing therefore shows that the lien is connected to the asset or
property e.g. Vessel or Cargo or freight or in other cases, even landed
property, vehicles etc. The lien attaches to the property even where the
property is not in the hand or possession of the owner, but in possession
of the lienee exercising the right of lien or a third party.
68 I P age
The distinction between a liens and a mortgage lies in the nature of the
rights, for they are indeed similar. While the right of lien does not vest,
but remains dormant or silent until exercised, a mortgage specifically
vests on creation and describes its remedies from the moment it is
created and with either the express agreement or understanding of the
parties thereto as to the application of those remedies. 8
There are several types of lien which includes: Possessory lien, statutory
lien, equitable lien and maritime lien. Our concern is Maritime lien, but we
shall briefly consider other types first in order to bring out clearly, the
distinction between maritime lien and other types.
Possessory lien as suggested from the name, arises mainly from a party
being in 'Possession' of the property at the time of its accrual, and in most
Jurisdiction, at the time of enforcement. The lien is lost once the party
claiming damages by asserting the right loses 'possession' of the
property. 9 This feature of actual possession distinguishes it from Maritime
lien in which case the lien travels with the property or "res" and does not
depend on Possession. This type of lien (Possessory) is usually exercised
by ship builders, ship repairers or vehicle dealers who seek to retain the
vessel or vehicle until the cost of construction, repair, charges or purchase
price have been paid.
However, it has been established that what amounts to been "in
Possession" of a vessel is a question of fact in any given case, in The
Narada 10 even though the master and crew remained on board, brando J.
found on the facts that the repairer has a possessory lien while in The
Gregos" where it was held that the plaintiffs repairers who carried out
repairs while the vessel was berthed near Newcastle were not "in
possession" and had no right to exercise the remedy of "self-help" by
removing engine parts. In Nigeria, United Kingdom and most common law
nations, the lien exercised by ship repairer is a possessory lien and also a
69 I P age
statutory lien. Under the United States law, it is a maritime lien who is not
dependent on possession. 12
A statutory lien is one that is created by statute where such statute
enables a party to a transaction to exercise a right attachable to the
property of another e.g. right of retention of the unpaid seller of goods by
the Lagos State Sale of Goods Act, 1972 and the Nigerian Admiralty
Jurisdiction Act, 199113 which confers a right of action "in rem" against
the vessel in cases which do not give rise to maritime liens once certain
statutory condition are satisfied.
A fundamental difference between statutory lien and maritime lien is that
the statutory right does not come into being until a writ is issued against
the "res". 14
An Equitable lien on the other hand may be implied or imposed into a
relationship owing to fairness or wrong conduct. Thus it is a right
enforceable against the property of a party who create it in a transaction
and those who acquire interest subsequently (third parties) in such
property with notice of such an interest.
This type of lien does not depend on "possession" as in the case of
possessoryLien. 15
2.1 Maritime Lien
Maritime liens are of a different nature from those noticed above and they
operate in a different way. A Maritime lien/we are informed, is a privileged
claim on a ship, or on her Cargo, or on either both of these and the
freight, in respect of service done to or injury caused by them. 16 A
maritime lien cannot generally exist in respect of a foreign state-owned
vessel or a vessel compulsorily requisitioned for public purposes by a
Sovereign state." An exception is however created where a vessel owned
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by a foreign state is engaged in ordinary trading, no immunity will be
granted to her."
Maritime lien is based on the concept that the ship (res) has itself caused
harm, loss or damage to others or their property and must itself make
good that loss or damage. The ship is deemed to be the wrongdoer and
not its owners and is liable to the party who suffers as a result of such
wrongdoing. Thus upon the happening of the wrongful act, a maritime lien
arises in favour of the party concerned and attached as a right in and
against the property of the ship concerned. It is therefore a right which
detracts from the absolute title of the owner of the res.
Its evolution (history) is traced back to the development of common
customs and practices of the Admirals in England and France in 14th
century, we are informed. 19 In France, these customs and practices were
later codified and recognised the rights of seamen to their wages, and
salvors of ships or cargo to reward which were accorded preferential
treatment over other claims before the Admiralty court as rights
enforceable against the vessels concerned. 20 Such claims became the
basis of the rights or interest referred to in modern maritime law of most
nations, as maritime lien.
Judicial decisions and writings of learned authors have traced the origin of
maritime lien and simultaneously exposing its important features. The
origin of maritime lien, as perceived under English law originated in 1851
following the decision in The Bold Buccleugh"'. The court here,
emphasised that maritime lien is a right which 'travels' with the ship into
whosoever possession it may subsequently go. Thus, it does not depend
on possession nor upon notice through filing at a registry as .n the case of
a mortgage. Emphasizing on this, a writer says:
"A maritime lien attaches to the vessel and gains priority without any
court action, deed or other written evidence or any registration, i.e. it
71 I P age
need not be registered, i.e. obvious reason for this is that a ship's master
or owner who salvage another sinking vessel, for instance, could not
reasonably be expected, mid-ocean or in a foreign port, to hurry to a
registry which possibly could be thousand miles away to register their
lien. Even where the facilities to undertake the registration exists, the
master would most probably have many pressing needs on his hands
ranging from safety at sea, crew problem to safety of cargo etc." 22
It is therefore often referred to as 'secret' lien and said to be indelible until
acted upon by the admiralty court in an action in rem and 'good against
the world' including a good faith purchaser of the vessel acting without
notice of the lien's existence.
From the historical point of view thus and having regard to some
jurisdictional variations, maritime liens usually arise either from contract,
tort or operation of law in respect of the following claims: Seamen's
wages, master's wages and disbursements, salvage, damage caused by a
ship's tortious act e.g. collision, supply of necessaries (now USA only) and
repairer's lien (USA only). From available sources, the following represents
the salient features of maritime lien as they are consequences associated
with same:
1. The lien arises upon the occurrence of the event creating it, i.e.
collision or wages becoming payable.
2. Once created, the lien is enforceable even if the ship is sold and
whether or not the purchaser has notice of it;
3. The lien is enforceable through an action in rem and as part of this,
(a) the ship, cargo or freight subject to it is liable to arrest prior to a
hearing on the merit; (b) Jurisdiction on the merit is founded on the
service of a writ in rem and arrest;
4. In respect of the ship, cargo or freight, the target for the action, the
lien is enforceable against other creditors, (secured or unsecured)
and subject to existing possessory lien, taken priority over all other
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creditors whether the claims of those creditors arose before or after
the creation of the lien.
5. Properly arrested as part of an action in rem in the court enforcing
the lien may be subject to judicial sale and the proceeds are
available to a lien holder and other claimants in rem;
6. Judicial sale as a step in enforcement of the lien extinguishes it and
transfers the lien to the proceeds;
7. The lien is extinguished by the destruction of the ship, cargo or
freight to which it attaches;
8. The lien may be extinguished by larches, waiver or satisfaction of
the debt and, possibly by lodging of bail, or the provision of a
guarantee. 23
3.0 MARITIME MORTGAGES
This has been defined as the creation of a charge or encumbrance in
favour of the lender by the person wishing to borrow. 24 Thus, a ship owner
(mortgagor) who wishes to obtain money because of under-capitalisation
may do so by transferring his interest or property in the vessel to the
lender (mortgagee) as security for the loan. The mortgagor or owner is
free to continue operating and trading the vessel as a profit-making
possession provided he does not act in such a manner as to jeopardise or
put at risk the ship as security for the mortgage and thereby prejudicing
the mortgagee's position. The mortgagee does not take actual possession
because the whole idea behind the transaction is that the vessel shall be
redeemed and the constructive transfer to the mortgage is called off on
repayment of the amount due by the mortgagor.
But under the common law, the old practice was that the mortgage
absolutely conveyed the vessel to the mortgagee and on repayment by
mortgage will reconvey the vessel to the mortgage. This method was
discontinued since 1825 and substituted in most common law countries
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by the introduction of special forms of mortgage by statute (i.e. statutory
mortgage) 25
The essential feature of a mortgage is that it is only a security transaction
and upon satisfaction of the loan which is secured by the property is
redeemed. But where it is not redeemed by a time limit provided, the
property becomes realisable by the mortgage. The ship owner
(mortgagor) remains in actual possession, and continues to use the vessel
provided nothing detrimental to the mortgagee's interest is done.
An equitable mortgage may also be effected by the deposit of the deed of
legal mortgage in respect of an existing loan with another person in
consideration of another loan. This is possible because as earlier
maintained; actual possession of the vessel is still in the mortgagor. It
may also be created by means of an agreement to enter into a legal
mortgage in consideration of a loan. Also, where a vessel is under
construction, a deposit of the builder's certificate in respect thereto may
constitute an equitable mortgage of the vessel. The effect of an equitable
mortgage is to confer on the equitable mortgagee a preferential right over
the thing charged. It is however subject to the overriding interest of
existing legal mortgages and maritime lien holders.
It is essential to emphasise that while lien does not vest title in the vessel
on the lienee, the mortgage does vest title on the mortgagee as the most
distinguishing feature between lien and mortgage. Also, the lienee does'
not necessarily have the power of sale of the vessel (i.e. without due
process of law leading to a judicial sale etc.), the mortgagee has in the
event of default. 27 Further, most ship registries acknowledge sand
register mortgage transactions and thus giving notice, thereof, liens are
not registrable.
3.1 Registration
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A legal mortgage of a ship is normally done in writing and is registered or
recorded in the ship'!) register at the Port of registry of the vessel in most
jurisdictions. 21 There is no legal obligation to register, but it is usually
done to give proper legal effect to the mortgage. Any mortgagee who
does not register Is not entitled to the benefits under the Act especially in
terms of priorities to be discussed in the later part of this paper, failure to
register it must however be emphasised does not under the mortgage
void. It is also obvious that if a ship is not registered, no registration of
mortgage can be effected on it. Registration is deemed to be notice to the
public of the transaction since the ship's register is a public document
which is available for inspection by interested parties. The most important
advantage of registration is obtaining priority against later secured
creditors of the mortgagor against all non-registered mortgages. It gives
precedence to later registered encumbrances as the ranking in terms of
priority is governed solely by the date of registration of the mortgage.
3.2 Priorities
Registration gives a mortgagee priority over:
(a) Earlier unregistered mortgages, whether or not the mortgagee has
knowledge of them;
(b) Later registered or unregistered mortgages;
(c) Unregistered debentures of earlier creation, even though the
mortgagee knew of them;
(d) Additional advances subsequently made under a prior registered
mortgage where under the agreement was that the mortgage
should cover present and future advances by the mortgagee (this
arises only under common law and not statute).
A mortgagee of a registered mortgage does not however have
priority over:
(a) Mortgages registered earlier;
(b) Maritime liens, whether earlier or later, 29
75 I P age
(c) Any claims in connection with which the vessel had already been
arrested at the time when the mortgage was entered into; and
(d) Any mortgages entered into under certificate of mortgage where
notice of the certificate of mortgage appeared on the register at the
time when the mortgagee entered into his mortgage. 30
L C. Ilogu however inform us that the issue of priorities only arises where a
'res' has or is to be sold by the order of a court of competent jurisdiction
or other authorised body in order to satisfy the monetary claim of a holder
of a proprietary right enforceable against the res where the ship owner
fails to appear to defend the sanction and put up security. We are
informed further that the mere fact of commencing action in rem or
obtaining judgement thereon does not enhance the claimant's ranking in
priority. The claimant's interest must be positioned as appropriate in the
given jurisdiction among other competing riqhts." Further, an examination
of some national laws or rules of procedure and the provisions of the
various conventions on maritime liens and mortgages seem to suggest
the following order of ranking of proprietary rights in ships, says t.C, Ilogu:
1. Statutory, court and other charges and costs;
2. Cost of arrest sand sale of the res;
3. Maritime liens which rank inter se from salvage, damage, seamen
and masters' wages to repairers (USA), necessaries (USA);
4. Possessory liens, necessaries;
5. Registered mortgages, and charges;
6. Statutory rights in rem which include cargo and charter party
claimants, repairers, tonnage, pilotage etc;
7. State liens or mortgagees (USA only) and
8. Other trade creditors. 32
It is submitted that in view of the differences in laws of countries and
jurisdictions, this order of priority enumerated by L.c. Ilogu is indeed a
better and more acceptable basis of determining priorities for the
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purposes of sharing the proceeds of sale of the res. It appear: to be the
most prevalent order of priority amongst nation states.
4. INTERNATIONAL CONVENTIONS ON MARITIME LIENS AND
MORTGAGES
From our examination of the issue of priorities, and the foregoing
discussion so far, it is obvious that the recognition of the principles and
rules relating to maritime liens and mortgages is no uniform and duties
among the countries of the world. Only very few principles and rules are
uniformly recognised. But the situation is still not helpful because of the
problem of enforcement resulting from jurisdiction differences and
problem. The aim of the various international conventions on maritime
liens and mortgages and other maritime claims, namely the 1926, 1967
and 1993, was to secure uniform framework for the recognition and
enforcements of these proprietary interest. The reasons responsible for
the little success is not farfetched. The primary reason is attributed to the
lack of consensus on the confect of laws principles governing the creation
and operation of maritime liens. Also, the difficulty in accepting the
priority of maritime liens over mortgages in some jurisdictions has been
attributed to the conflict between the operating interests, (i.e. ship
owners, salvors, crew) and the financial interests (lenders). The resultant
effect of all these is that many nations are yet to implement any of these
conventions and therefore subjecting the proprietary rights to divergent
enforcement regimes.
The 1926 convention for example recognises certain categories of
maritime liens and its priority over mortgages. The liens are also
extinguished after one year with a few registration in accordance with the
law of a contracting state in which the vessel is registered. We are
however informed by our sources that as at 1995, only 28 states had
ratified the convention, 69 years after."
77 I P age
The 1967 International Convention for the unification of certain rules
relating to maritime liens and mortgages retains substantial provisions of
the 1926 convention except for the removal of master's disbursements
from the recognised categories of maritime lien. The convention further
requires the deregistration of ships should be with the consent of the
registered mortgagees. Also, as at 1995, we are informed, only 4 states
had ratified it although some state laws which have not ratified it is said
to conform with its provisions, e.g. Germany. 34
The International convention on maritime liens and mortgages 1993 was
carried out under the auspices of the International Maritime Organisation
(IMO) unlike the previous ones which were initiated by the United Nations.
It is substantially similar to the earlier conventions and recognises the
categories of maritime liens as in the previous conventions, but it has
excluded from the list of maritime lien claims wreck removals, general
average contributions and damage arising from the carriage of oil and
other hazardous substances where compensation is payable under
another convention or statutory provision. With regards to mortgages, the
convention contains similar provisions on earlier ones which relates to
recognition, enforcement and priority of interests registered in accordance
with the law of the stage of the vessel's registration. This convention
provides for registered mortgages to be extinguished by judicial or forced
sale of the vessel except where the sale takes place in the state or
registry and there is consent as between the parties that the mortgage
should continue.
The provisions of these conventions may differ from those obtained under
national laws which are often at variance with the convention. Also, the
conventions have not been ratified by most nations especially the
powerful maritime nations such as Japan, United States and the United
Kingdom have not ratified the earlier conventions. This has increased the
conflict of laws principles and rules governing the creation and operation
of these proprietary rights.
78 I P age
Thus, the positive effects of the provisions of these conventions have not
been appreciated in view of the fact that conflicting national laws is
applied more often in resolving conflicts arising from the creation and
operation of these proprietary interests or rights to the detriment of the
holders of such rights or interests.
4.1 Nigeria
Although Nigeria is yet to ratify and for implement any of these
conventions earlier mentioned, most provisions of its national laws
relating to maritime liens and mortgages substantially conforms with the
provisions of these conventions. S. 5(3) of the Nigerian Admiralty Act,
1991 defines maritime liens and recognises the following categories of
maritime liens:
(a) salvage; or
(b) damage done by ship; or
(c) wages of the master or a member of the crew of a ship; or
(d) master's disbursements.
The Nigerian Merchant Shipping Act, 1990 provides in S. 374(1) a two
years limitation period for pursuing such claims. As for mortgages, the
Nigerian Admiralty Jurisdiction Act, 1991 defines mortgage in 8.26(1) to
include "a hypothecation, or pledge of and a charge on the ship or share"
while the Merchant shipping act, 1990 provides the requirements for
mortgaging Nigerian vessels, registration and priority of such mortgages
etc which are substantially the same as the provisions of the International
Conventions earlier examined.
From an examination of the national laws of some countries especially the
common and civil law jurisdictions, even though they have not ratified the
various conventions some of their laws conform substantially with the
79 I P age
provision of the various International Conventions on Maritime liens and
mortgages.
5.0 ENFORCEMENT PRINCIPLES
The International enforcement of the proprietary rights of maritime liens
and mortgages necessarily involves the consideration of conflicts of law
principles arising from differences in national laws and procedures
governing the various categories of maritime claims. A conflict of law
arises where a court in a jurisdiction is under an obligation to adjudicate
upon a matter involving some system of law other than that of the trial
court in any given situation with a view to fulfilling the reasonable and
legitimate expectations of the parties to a transaction. E.g. contract made
or to be performed in a foreign country and or be foreign parties.
In resolving conflict of law problem, three basic issues arise, namely (a)
jurisdiction or Choice of forum; (b) Choice of Law; and sometimes (c)
Recognition of foreign judgement.
5.1 Jurisdiction
jurisdiction relates to the ascertainment of the power or authority of the
court to try the subject matter presented by the parties under the
applicable national legislation establishing the court or relating to the
subject. jurisdiction may be declined where the court lacks such, e.g. on
account of forum or arbitration clause in a contract or subject matter. 35
Also, some conventions may curtail jurisdiction of court, e.g. a convention
imposing the domicile of the defendant as the primary basis of jurisdiction
in countries within the European Union. 36
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5.2 Choice of Law
After resolving the issue of jurisdiction and it is determined that a court is
conferred with jurisdiction, the next issue for determination is what law
will apply? Many rules on determining choice of law have been evolved,
but the significant ones in relation to maritime claims are:
1. Lex Fori, which means the domestic or national law of the forum; and
2. Lex causae, which means the law which governs the question or
transaction and which may further be reduced into the law of
domicile (Lex domicili) or law of place of contract (Lex contractus).
It is a generally recognised principle of International law that the
substantive rights of the parties to an action may be determined by
foreign law (Lex causae) while matters of procedure are determined by
the lex fori (local law). The problem that often arise is the difficulty of
determining what is a substantive issues and a procedural one. 37
The Nigerian approach appears to be lex fori and therefore procedural.
This is derived from decisions such as Pavlos Chiladakis v. Owners of MN
Rinio. 38 Thus, this absence of uniform international means in resolving
choice of law problem tend to encourage forum shopping by claimants on
the one hand and on the other hand causes inequity or injustice in certain
jurisdiction.
5.3 Recognition of Foreign Judgements
As a general rule the judgement of the court of a foreign country has no
direct application in another country unless enforced or recognised. 33 The
procedure for the enrolment or registration of foreign judgements are
mainly issues of lex fori and vary from jurisdictions, the common factors
for consideration been that it is a final judgment and that the due process
of law has been complied with.
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5.4 Procedures and Types of Action
In most common law and some civil law jurisdictions, 2 types of legal
action are maintainable, namely; an action against the vessel itself known
as an 'action in rem' and/or action against the owner known as 'action in
personam'.
There are conflicting schools of thought as to whether an action in rem is
procedural or substantive in nature. It is regarded as procedural in the
United Kingdom and here it is predicated on the commencement of legal
action and the arrest of seizure of the vessel. The substantive thought is
prevalent in U.S.A. and Canada and it is based on the legal principle that
the right of actions is enforceable against the "res" or person of the
vessel. The debate is not our concern, but judicial decisions do shed some
light on the controversy. Hence, where procedural approach is adopted,
the conflict of laws is resolved by lex tori." In practice, it is usual to
commence an action 'in rem' against the res in a jurisdiction where the
vessel can be located since any order or judgement of the applicable court
is to be directed at the res itself. On the other hand, an action 'in,
personam' being directed at the person of the owner, charter or operator
of the vessel should be commenced where he can be found, either
personally or in relation to his business.
While in most common law jurisdictions, writs 'in rem' and 'in personam'
can be served through master of the vessel to enforce maritime liens and
mortgages, in civil law countries, 'in rem' actions are unknown and in
some of these countries e.g. France and Belgium, enforcement of
maritime claims are done by applying the 'Saisae Conservatioire' or
conservatory attachment which prevent -the defendant's assets from
being removed from jurisdiction or dissipated. This approach is likened to
orders for arrest, attachment, detention or even mareva injunction which
821 P age
can only be sought in common law countries after issuance of a writ in
rem or in personam, the most commonest being the Arrest Order which
serves as a form of interim relief or provisional remedy; a ground of
jurisdiction over the matter and as a way of obtaining 'security' for the
claim. In the U.S.A., there is an additional process similar to arrest
procedure in Nigeria and U.K. called 'Action in Personam with Attachment'.
The procedure for judicial sale of vessels may vary from jurisdiction to
another, but the end result is often that all rights in rem are extinguished.
40 A sale by a competent court of authority confers good title to the new
owner of the vessel free from all encumbrances and will be so recognised
in other jurisdlctlons." In support of this assertion. Brown D. J. in The
Trento 42 said:
II the doctrine that the sale of a vessel by a court of
competent jurisdiction discharges her from liens of every
description is the law of the civilised world:
6.0 OBSERVATIONS. CONCLUSIONS AND SUGGESTIONS
The foregoing analysis obviously present numerous legal problems which
requires attention and solutions internationally at first and then within
individual country's jurisdiction. In the first place, there is the difficulty in
defining the scope and maritime liens uniformly among nation states. The
end result as earlier noticed is the inequity and injustice resulting from the
non-recognition of some in certain jurisdictions. Some writers have put
forward suggestions on the need to introduce a system of registration of
Maritime liens as done in the case of mortgages within a limited period of
its accrual. While we concede to this suggestion, we shall be quick to point
out that such is only practicable written the scope of maritime liens is
uniformly recognised by nation states, otherwise the major problem of
non-recognition will still constitute a barrier. Another problem likely to
pose with registration of maritime lien is the difficulty earlier noted by
83 I P age
Justice R. D. Muhammed when he said " .. it need not be gist fired. the
obvious reason is that a ship's master or owner who salvage another
sinking vessel, for instance could not reasonably by expected, mid-ocean
or in a foreign pert to hurry to a Registry which possibly could be
thousand miles away to register their lien. Even where the facilities to
undertake the registration exists, the master would most probably have
many pressing needs 0:1 his hands ranging from safety at sea, crew
problem to safety of cargo etc
There is the compelling need for the International Community to ratify the
various conventions for the unification of the conception and enforcement
principles on maritime liens and mortgages. Thus there is the need for
adoption and integration of the International Conventions into the national
laws for uniformity of rules and principles, the compelling need for this
cannot be emphasised bearing in mind the importance of the maritime
industry in the development of International trade and relations between
nation states especially with the increasing level of International trade and
transportation by sea and use of ships.
ENDNOTES*Sam M. Adam (LLM)
Dept. of Property & Commercial Law Faculty of Law
University of jos
1. Christopher Hill, Maritime Law (Great Britain: The Pitman Press,
1981) p. 23
2. i.c. Ilogu. Modus International Law & Business Quarterly, Vol. 2 No.
2, June 1997, p. 35
3. Ibid
4. The 1926, 1967 and 1993 International Conventions on Maritime
Liens & Mortgages
841 P age
5. justice R. D. Muhammed, jCA, Commenting on Maritime Liens and
Mortgages: International Perspective, Abuja, 1997, p. 1 and citing
Alfred H. Sivertown: The Law of Lien (1988)
6. Ibid
7. L. C. Ilogu, op cit, p. 35
8 See generally "Enforcement of maritime Claims" by D.C. jackson,
2nd ed. as cited by t.C, Ilogu, op cit, p. 36
9. See The Ally (1952)2 Lloyd's Rep. 427; The Scio (1867) 1A & E353
10. (1977)1 lloyd's Rep. p. 256
11. (1986)2 lloyd's Rep. p. 347
12. See S. 91 Maritime Lien Act (46 US Code)
13. S. 5 (4) of the Act
14. See The Monicas (1967)2 lloyd's Rep. 113
15. See The Ugland Trailer (1985)2 lloyd's Rep. 372 and The Annangel
Glory (1988)1 loyd's Rep. 4'j
16 Fhe Rippon City (1897) p. 226
17. Vascongada v. Cristina (1938) AC 485 or (1938)1 Alier 719
18 See S. 10(2) The State Immunity Act, 1978 of U.K. and The
Philippine Admiral (1976) 1 Alier 78
19. L. C. Ilogu, op cit, p. 37.
20. William Tetley, Maritime liens & Claims, 1st ed; Chapter 1, p.38-41
and cited in t.C, Ilogu, op cit, p. 37
21. (1851)13 ER at 890
22. justice R. D. Muhammed, jCA, op cit, p.2
23. L. C. Ilogu, op. cit, p. 38
24. Christopher Hill, op, cit, p. 23
25. See S. 323 (i) Nigerian Merchant Shipping act, 7990 and U.K.
Merchant Shipping Act, 1988 which amended the 1894 Act
26. See King v. King (1735) 3P WMS 358
27. See S. 326(2) Nigerian Merchant Shipping act, 1990
28. See S. 323 (2) Nigerian Merchant Shipping Act, 1990; S 31 ID U.K.
Merchant Shipping Act 1894 (As amended by the 1988 Act)
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29 See The Loannis Daskaleiis (1974) 1 lloyd's Rep. 174: The
Pickanranny (1960)1 teyfs Rep. 533 and TheColorado (1923) 14
lloyd's Rep. 251
30. A Certificate of Mortgage is made to cover circumstances where the
ship owner desires to mortgage it outside the country in which the
ship's port of registry is located. The ship owner then applies to the
registrar at the port of registry to issue a certificate of mortgage.
See S. 42 of the U.K. Merchant Shipping act, 189431. t.C, Ilogu, op cit p.46
32. Ibid
33. Ibid. p. 40
34. Ibid
35. See The Eleftheria 11969)2 ALLER 641; The Nordwind (1987)3 NSCI;
The Atlantic Star (1974); The Abidin Daver (1984) AC 398
36. See The Loannis Daskelelis (1974) 1 lloyd's Rep 174; The Halcyon
Isle (1980)2 lloyd's Rep 325; The Scotia 35 F907 (SD. NY 1880)
37. (1986)2 NSC638
38. See Dicey and Morris "The Conflict of Laws" 11th ed; cap 14 p. 418
as cited in t.C, Ilogu, op. cit, p.44
39. See Phrantzes v. Argenti (1960)2 QS 19 at 35
40. See The Edith (1976) 74 US 518
41. Per Lushington in the Tremont 166 ER 534 at 534
42. (1888) 4F 657 at 662 E.D. Mien.
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