Authored by Rishabh Tiwari and Shashank Chaturvedi
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.[1]The phrase “maritime lien” was first used in Unite States in the Nestor[2]case. The word “lien” is derived from a Latin word “ligament” which means binding.[3] In common law, a lien is considered to be the right to hold or retain property which belongs to another person as a security for the performance of an obligation or for the payment of a debt. “Possessory liens” are usually contract based, whereas “maritime lien” may arise outside of contractual relationships[4]. Therefore “maritime lien” has very different characteristics from the “common law lien”.[5] When it comes to a common law lien the creditor is required to have an actual or constructive possession of the property and also require consent of the lienee. On the other hand, maritime lien arises automatically and once it is executed it arises without the holder of the lien obtaining possession of the res. [6]
Maritime lien and maritime claim both overlap each other at various levels, however both the terms are essentially different from each other. A maritime lien depends on the vessel, irrespective of any change in the ownership and it usually favors the claimant. On the other hand, a maritime claim ceases to exist if the vessel is sold to a third party. Therefore, in case of maritime claim, the claimant has a right in personam, which means that the claimant can only claim against a particular person. However, in case of maritime lien, there is right in rem, i.e. the claimant’s rights is protected against the world at large.[7]
A maritime lien is a quasi-proprietary right[8]and it usually provides many advantages to the plaintiff. Some basic characteristics of Maritime Lien is that it arises automatically, the jurisdiction cannot be questioned and it takes priority over any other form of security. These features differentiate a maritime lien from a common law lien and further as the res is seized it reduces the chance that the judgement will be frustrated and thus increases the scope of recovery.
Most of the jurisdictions today have provided for the use of the action in rem. To explain the concepts of action in rem and maritime lien, scholars have focused on two different theories which are “personality theory” and the “procedural theory”.[9]
Personality theory is based on the premise that if an object causes harm or death to a person then that particular object has to be forfeited to the person in compensation for the harm. This theory also holds a wrongdoing vessel liable even if the vessel is under charter when the incident took place. This theory states that action in rem is not a procedural device to obtain jurisdiction but it is a proceeding directly against the ship.[10]
On the other hand, the procedural theory states that maritime lien grew out of the process of arrest of a vessel to compel the appearance of its owner in order to secure finances through which any judgment may be awarded. Thus, this theory holds that a ship is liable in action in rem and subject to a maritime lien only if the owner of the ship is personally liable at the time when the action was brought.
Indian law does not define the term “maritime law”, however India is a signatory to the international convention on Maritime Liens and Mortgages 1993 (1993 Convention), according to which following claims will be considered as maritime liens:
- Claims regarding wages and other sums due to the master, officer and other members of the vessel.
- Claims regarding loss of life or personal injury occurring whether on land or on water which is in direct connection with the vessel.
- Claims for reward for the salvage of the vessel.
- Claims regarding canal. Port and other waterways.
- Claims which arise out of physical loss or damage caused by the operation of the vessel.
Therefore, maritime lien is riddled with exceptions, conflicting judicial opinions and qualifications and it is a confusing mix of statutes and cases.
Maritime lien under English Law
There have been various international convention with regard to maritime law in the past, the definition of maritime law, though, differs in every jurisdiction. A place of arrest holds a significant importance under English law. A claim would equivalent to the maritime lien as per the law of the place of arrest. There are various ways one can invoke maritime lien against a person/party. Maritime lien can be invoked in respect of claims for damage done by the ship to property or persons, salvages, crew wages and wages and expenses of the Master. There are Statutory lien which encompasses mortgages and claims in respect of goods and services supplied to a vessel. Statutory lien, though not maritime liens strictly, still invoke the right to arrest a vessel under the Supreme Court Act[11].
Brussels Convention was signed in 1952[12] in Brussels by various nations including UK. They entered into an international accord called the convention on Arrest of Sea- Going Ships. This convention put forth a concurred list of claims that might be upheld by capturing sea-going ships. English statute incorporated these claims. Nonetheless, Brussels Convention introduced a number of additional claims in view of ancient maritime liens through the extended list of claims. English court did not recognize ‘Notional’ liens as maritime liens. They are usually referred to as statutory liens.[13]
UK and jurisdictions that follow the English law framework, there is only one way that a ship arrest can happen that is in rem (against the vessel) instead of in personam (against a person/party). There are only 3 types of claims under English law that Maritime lien gives: Salvage; Crew wages; Damages done by a ship. Under Maritime Lien, the claimant automatically gets a privilege to proceed in rem against the ship despite of the ownership of the arrested ship.[14]
Maritime Lien Under Indian Law
Under Indian laws the very concept of maritime lien is based on the presumption that services have been rendered to the vessel and since the vessel itself is supposed to be a person the claims which attach to the vessel are to be discharged by the vessel only. It is such a binding claim that in the case of a sale of ship the proceeds of such sale are made available for the satisfaction of the maritime lien. The modern maritime law of India has developed over a century, from colonial times, vide the Admiralty offences (colonial) Act, 1849, the Inland Steam vessels Act, 1917, the Coasting Vessels Act, 1838, the Indian Registration of Ships Act(1841) Amendment Act, 1850, Indian Ports Act, 1908, Indian Merchant Shipping Act, 1923, the Control of Shipping Act, 1947, Territorial Waters Jurisdiction Act, 1878 and so many others. As far as India position is considered, the Merchant Shipping Act, 1958, Admiralty Courts Act, 1861 and the judicial decisions are in consonance with international practices.
A maritime lien adheres to the ship (res), from the time that the facts happened which gave the maritime lien, it travels with the ship (res) and is binding on the ship until it is discharged and it is immaterial as to who is in possession of the ship (res) even though he may be innocent of any liability to the lien holder and had no notice of the lien. Maritime lien continues until it is discharged, either by being satisfied or from the laches of the owner, or in any other way which, by law it may be discharged. It commences and there it continues binding on the ship until it comes to an end. Action in rem and admiralty jurisdiction can be invoked for maritime lien.
Under Indian rules of conflict of laws, a foreign maritime lien may not be recognized and enforced as such by the Indian courts even though the proper law of the claim accords it a maritime lien status, e.g. a preferred ships mortgage, necessaries, repairs, supplies, towage, use of dry-dock, and a like, under United States law.[15]
The Indian Supreme Court in the case of MV AL Quamar v. Tsavliris Salvage (international) Ltd.[16] and MV Elizabeth v. Harwan Investment and Trading (P) Ltd.[17] held that there are two attributes to maritime lien: first a right over a part of property in the res and a secondly a privileged claim upon a ship in respect of services rendered to or injury caused by that property. This indicates that our laws are in consonance with international law.
About the Authors
Rishabh Tiwari is a 4th year law student at National Law University Odisha. He has been associated with the centre for the past one year. He has a keen interest in Maritime Law.
Shashank Chaturvedi is a 2nd year law student at the National Law University Odisha. He is currently associated with the centre for Maritime Law as a member. He has a keen interest in the field of Maritime Law.
[1]Bowmans, The Maritime Lien – Bowmans. (Jul. 26, 2019) https://www.bowmanslaw.com/insights/shipping-and-logistics/the-maritime-lien/.
[2]The Nestor, 18 Fed. Cas. 9, 11 (C.C.D. Me. 1831) (No. 10,126).
[3]Dictionary of Law 267 (3rd ed. 1997) (1983).
[4]Arthur L. Shipman, Maritime Lien, 2 YALE L.J. 9, 18 (1892-).
[5]Marine Insight. (2019). Is Maritime Lien an Important Aspect of Maritime Law? (Jul. 26, 2019) https://www.marineinsight.com/maritime-law/is-maritime-lien-an-important-aspect-of-maritime-law/.
[6]The Bold Buccleugh, [1843-60] Eng. Rep. 125, 128 n.42 (P.C. 1852) (appeal taken from Eng.).
[7]Irmi.com, A Lien Is a Lien Is a Lien, but a Maritime Lien Is Not | Expert Commentary | IRMI.com (Jul. 26, 2019) https://www.irmi.com/articles/expert-commentary/a-lien-is-a-lien-is-a-lien-but-a-maritime-lien-is-not
[8]The maritime lien itself does not confer any proprietary right. Once carried into effect by the appropriate legal process (the action in rem) a maritime lien confers proprietary rights on the holder of the maritime lien and these rights are backdated to the date of creation.
[9]John Mansfield, Maritime Lien , 4 L. Q. REV. 379, 393 (1888).
[10]The Bold Buccleugh, [1843-60] Eng. Rep. 125, 128 (P.C. 1852)
[11]Supreme Court Act 1981.
[12]International Convention relating to the arrest of seagoing ships..
[13]Mondaq.com. (2019). Maritime Arrest Under English Law – Transport – UK. [online] Available at: http://www.mondaq.com/uk/x/97606/Marine+Shipping/Maritime+Arrest+Under+English+Law [Accessed 26 Jul. 2019].
[14]Black’s Law Dictionary (Jul. 26, 2019) https://thelawdictionary.org/in-personam-in-rem/.
[15] Shrikant Hathi, Ship Arrest in India and Admiralty Laws of India, ADMIRALTYPRACTISE.COM (Jul. 21, 2019, 10:53 PM), http://admiraltypractice.com/chapters/43.htm.
[16] (2000) (8) SCC 278.
[17] 1993 Supp (2) SCC 433.
Centre for Maritime Law 