Conclusion : reconceptualising the maritime lien and the conflict of laws
| Published date | 01 January 2011 |
| Pages | 447-555 |
| DOI | 10.10520/EJC74139 |
| Date | 01 January 2011 |
447
11 CONCLuSION: RECONCEPTuALISING THE MARITIME
LIEN AND THE CONFLICT OF LAWS
11.1 Introduction
The burden of admiralty history is heavy, and in respect of the
maritime lien in the Anglo-common law jurisdictions it has assumed
albatross-like qualities.1 The fact that it is necessary to conduct a
historical investigation going back to ancient law is in itself evidence
of the failure, thus far, to rid the maritime lien law in the Anglo-
common law jurisdictions of unnecessary ballast.2 The maritime
lien is undoubtedly of judicial vintage, and an accepted concept
in maritime law. The maritime lien has been referred to as “one of
the first principles of the law of the sea”,3 a claim of a “very high
and sacred character”,4 and very far-reaching in its effects. One
therefore has to be bold to question the prevailing jurisprudence of
a concept referred to in such revered terms. However, matters of an
intellectual nature, especially those which are, to use a Gallicism,
the most accepted, should always be subjected to re-examination
and scrutiny by the holy goddess of Doubt.
The fact that the maritime lien remains an elusive and intriguing
subject with uncertainty still shrouding basic issues as to its
origin and nature, the fact that the law relating to the maritime
lien is in need of full development, and the fact that the question
of the recognition and enforcement of foreign maritime liens is still
unresolved in Australia, necessitate a fresh look at the concept of
the maritime lien in order to delineate it in accordance with, but
unconstrained by, the limitations of the prevailing jurisprudence. To
bind the maritime lien too tightly to its bygone roots seems unwise
1 This reference is inspired by JP van Niekerk, “Marine Insurance
Claims in the Admiralty Court: An Historical Conspectus” (1994) 6
South African Mercantile Law Journal 26.
307, Mclean J remarked that “Antiquity has its charms, as it is rarely
found in the common walks of professional life; but it may be doubted
whether wisdom is not more frequently found in experience and the
gradual progress of human affairs; and this is especially the case in
all systems of jurisprudence which are matured by the progress of
human knowledge. Whether it be common, chancery, or admiralty
law, we should be more instructed by studying its present adaptations
to human concerns, than to trace it back to its beginnings. Everyone
is more interested and delighted to look upon the majestic and flowing
river, than by following its current upwards until it becomes lost in its
mountain rivulets.”
4 The Hope (1973) Asp Mar Cas 565.
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in light of the notion that the law should be adaptable to the ever-
changing needs of society.5
In chapters 2 to 6, I examined the origin and development of the
maritime lien and its French equivalent, the maritime privilege, up
to and including its conceptualisation in England, America and
France respectively, using the historical-comparative method
of jurisprudence.6 This was done, conscious of the oft-quoted
aphorism that a “page of history is worth a volume of logic”,7 in
order to distil the essence of the concept of the maritime lien, not
in vacuo, but in the context of its function. My examination was not
done on the basis of the various theories that had been conjured
up,8 because “[m]aritime liens are not the product of theories
but rather of the evolution of statute, custom and judge-made
law. Maritime liens fall into no particular theory, they are part of
an evolving, living law, the product of national legislatures, of the
courts and history as seen in the general maritime law.”9
The absence of any single unifying theory as to the origin, nature
and justification of the maritime lien may be the result of the fact
that a strictly logical explanation of its origin and development is
not possible or practical. This is evidenced by the fact that early
English, and indeed also French, maritime law does not give
an exhaustive answer to the nature of the maritime lien.10 It is,
however, an entirely different matter to argue that it is proof of the
5 See DJ DeMordaunt, “Admiralty In Rem and In Personam Procedures:
Are They Exempt from Common Law Constitutional Standards?”
(1989) 29 Santa Clara Law Review 331 at 346; NG Letalik, Canadian
Maritime Lien (unpublished LLM thesis, Dalhousie University, 1980) at
35 and 205.
6 This is the popular method to ascertain the nature of rights and
study the law, and is inductive in character. Chan-Toon, The Nature
and Value of Jurisprudence (Reeves and Turner, London, 1889) at
36 points out that: “The Analytical is the method of classifying and
defining the component parts of positive laws; the Historical traces the
development of particular departments of law to their present forms;
the Comparative method ‘is to take the legal systems of two distinct
societies under some one head’” and to determine similarities.
7 See also Holmes J in New York Trust Co v Eisner 256 US 345 at
349 (1921).
8 See paragraph 1.7.
9 W Tetley, Maritime Liens and Claims (Blais, Montreal, 1998) 56.
See also Anonymous, “Personification of Vessels” (1964) Harvard
Law Review 1122 at 1124 who points out that the “usual similarity of
results in England and America suggests that the theories professed
are not controlling and that the conclusions have been reached on
other grounds.”
10 See E Margalioth, Maritime Liens: A Study on the Origins and Nature
of Maritime Liens according to English and Israeli (Ottoman-French)
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fact that this area of admiralty law, like many areas of the common
law, is a-theoretical.11 Hitherto, the analysis of the concept of
the maritime lien has been rather general and fragmented, if not
unprincipled, with resort being had to explaining the maritime
lien as being analogous to, for example, the even more abstruse
Greek and Roman maritime loan or the medieval deodand. It is not
only a case of ignotium per ignotius,12 but the result is that a solid
jurisprudential foundation for the concept of the maritime lien, from
which the maritime lien could be properly defined and from which
an analysis of the recognition and enforcement of foreign maritime
liens could be addressed, is lacking.
The speculative explanations about the origin, nature and
justification of the maritime lien have resulted in an avoidance of
analytical jurisprudence,13 almost as though abstract jurisprudence
would be a judicial straightjacket for the concept of the maritime
lien.14 The fact that the maritime lien has evolved over a period
of time and was conceptualised when analytical jurisprudence was
still in its swaddling clothes does not mean that the maritime lien
should not be analytically considered, especially in the context
of the conflict of laws.15 Like maritime legal problems in general,
maritime lien problems cannot be solved by admiralty law alone
because the law is so closely concatenated, in particular where a
“maritime lien is plainly a legal term of art which describes a juristic
concept which exists in many legal systems.”16 They present “a
legal kaleidoscope” of issues that even a modern legal Solomon
of pure admiralty jurisdiction would not be able to resolve.17 A
return to the elements of jurisprudence is necessary to define and
understand the maritime lien so that the question of the recognition
and enforcement of foreign maritime liens can be addressed.
Law (unpublished dissertation for the academic postgraduate diploma
in law, University of London (University College), 1959) 51.
11 The Australian Law Reform Commission, Civil Admiralty Jurisdiction
Report No 33 (Government Publishing Service, Canberra, 1986) 14.
12 It may be translated as “To explain the obscure by means of the more
obscure.”
13 This is the scientific method to ascertain the nature of rights and study
the law, and is deductive in character.
14 It is true that an analytic division only has an abstract or logical value,
and that it is not necessarily applicable to the concrete purposes of
technical law − see, F Harrison, On Jurisprudence and the Conflict of
Laws (Clarendon Press, Oxford, 1919) 62.
15 See paragraph 11.3.1.
10.3.3.
17 See SB Bradley, “An Introduction to Admiralty and Maritime Law”
[1959] University of Illinois Law Forum 81.
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