THE MARITIME LIEN
A maritime lien is often described as “the barnacle” attaching to a ship’s hull. This description is due to the fact that a maritime lien in respect of a particular ship, travels with that ship, irrespective of whether or not that ship changes ownership. Ultimately, it is the ship itself which owes obligations which may be breached.
While South African law recognizes the existence of a maritime lien, our legislature has never defined exactly what a maritime lien is. This is not unique to South Africa, with the courts in England stating that a maritime lien is “more easily recognized than defined.” Indeed, even international conventions such as the International Convention on Maritime Liens and Mortgages, 1993 do not specifically define what a maritime lien is.
In terms of our case law, only certain claims will give rise to a maritime lien in South Africa. These are claims for damage done by a ship, salvage, crew wages, bottomry (when the owner of a ship borrows money and uses the ship itself as collateral), respondentia (the hypothecation of the cargo or goods onboard a ship as security for repayment of a loan) and the Masters wages and disbursements.
The neccessary characteristics of a maritime lien are well settled in law. Essentially, a maritime lien is a privileged charge upon a ship, which comes in to existence immediately as soon as the facts giving arise to it occur, and which then travels with the ship unconditionally, until such a time as it is perfected by being enforced by an action in rem. The in rem action is an action against the property (the ship) itself.
A distinctive characteristic of the maritime lien is that its existence does not depend on possession of the ship. In the circumstances, a maritime lien holder who allows a ship to sail without the holder having recovered his debt in respect of that ship has not waived his lien, and in the accordingly he may still take action against the ship at some later stage by exercising his lien.
It is however important to note that a maritime lien is a secondary interest. What this means is it always accompanies the principal claim- for example, a crew member may have a claim for unpaid wages, and exercise his maritime lien for recovery of the wages. However, the principal claim remains the claim for unpaid wages.
A maritime lien will not always follow a ship which it has attached to- it may be discharged if the debt is paid; if the creditor waives his right to payment; if the ship is physically lost; if the ship is captured in times of war; if it is excluded contractually; or if the lien holder asserts his right with an unreasonable delay resulting in harm to the owner of the ship, or upon judicial sale of the ship by a competent court.
The origins of the maritime lien are obscure, as well as the reasons why particular claims are awarded lien status. It is possible that some of the claims in respect of provision of services which give rise to maritime liens (such as crew wages) were historically regarded as being vital to the operation of the ship and accordingly deserved special protection.
Three main theories exist in respect of the origin of the maritime claim. These are the personification theory, the procedural theory and the conflict theory. Briefly, the personification theory proceeds on the basis that a ship is itself an entity separate from her owner, and that the ship may incur liability itself. The procedural theory puts forward the view that the maritime lien and consequent arrest of a ship is a procedural method of “flushing” out the owner to defend his ship and release it from arrest by putting up security, in order to secure finance which a Judgment could be executed against. The conflict theory has roots in the fact that the Admiralty Court in England was once rather poorly treated by the (at that time) more highly ranking common courts who took exception to the Admiralty Courts receiving finance which they believed they were entitled to, and so took to issuing writs of prohibition against the Admiralty Courts commanding them to cease prosecutions in Admiralty cases on the basis they lacked jurisdiction. This theory suggests that these “prohibitions” restrained the Admiralty Court from acting against persons but not against ships or their cargo. In the circumstances, the Admiralty court was obliged to accept the arrest of the vessel to obtain jurisdiction, and in order to justify the arrest, the concept of the maritime lien was born.
It is noteworthy that the South African courts will not enforce foreign maritime liens which do not fall within the lien categories recognized by the South African law. That said, if the principal claim underlying the foreign lien is a maritime claim as recognized by our courts, the principal claim itself may still be enforced as an action in rem, but the claim will not have the status of a maritime lien.
This article first appeared in the Sunday Tribune