Introduction

• Published date: 01 January 2011
• Date: 01 January 2011
• DOI: 10.10520/EJC74149
• Pages: 1-37

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1 INTRODuCTION

1.1 Raison d’etre for the Monograph

This monograph deals with maritime liens in a conf‌lict of laws

situation, and more particularly with the question of recognition

and enforcement of foreign maritime liens in Australia − informed

by a preliminary study of the origins of maritime law and maritime

liens generally. It is about the maritime lien, “a nasty little beast who

continues to stalk the unwary”1 and the conf‌lict of laws. In view of

the vagaries of maritime liens and the involute nature of conf‌lict

of laws, the discourse on this subject area is one of the most

complex in international maritime law and practice.2 One may say

in Churchillian rhetoric that the conf‌lict of laws problem in maritime

lien law is a “riddle wrapped in a mystery inside an enigma”.3

It is important to understand the international dimension of

maritime liens, because they inevitably involve more international

components than any other maritime situation.4 Consider the

following hypothetical problem expressed in post-modern

parlance.5

1 FJJ Cadwallader, “‘The Court of Admiralty and Equity’: Principles and

Practice of Maritime Law” (1990) 138 Royal Society of Arts Journal

119 at 120.

2 See E Gold, A Chircop, and H Kindred, Maritime Law (Irwin Law Inc,

Toronto, 2003) 266.

3 See Markakis v Liberian SS The Mparmpa Christos 161 F Supp 487

(1958) at 489.

4 See NG Letalik, Canadian Maritime Liens (unpublished Master’s

thesis, Dalhousie University, 1980) 130; PK Mukherjee, “The Law of

Maritime Liens and Conf‌lict of Laws” (2003) 9 Journal of International

Maritime Law 545; and WF Dougherty, “Multi-Contact Analysis for

a Multinational Industry: The United States’ Approach to Choice of

Law Analysis in the Enforcement of Maritime Liens” (2000-2001) 13

University of San Francisco Maritime Law Journal 75 at 77.

5 See MJ Frug, “A Postmodern Feminist Legal Manifesto (An Unf‌inished

Draft)” (1992) 105 Harvard Law Review 1045 at 1045 to 1048 on style

in post-modern work. For comments on the effect of feminisation of

ships in maritime law, maritime parlance and admiralty courts − see

RM Jarvis, “Sexual Equality before the Silver Oar: Lifting the Fog on

Women, Ships, and the Law of Admiralty” (1985-1986) 7 Cardozo Law

Review 93 at 136.

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Unlike Blackacre,6 Blackship7 − a f‌ictional maritime res − is mobile

and of necessity a wanderer.8 Because of her inbuilt “wanderlust”,

the builders and bankers who have facilitated and f‌inanced her

expensive birth secure their interest in Blackship before she leaves

the shipyard. Blackship then plies the seas to transport goods and

passengers, berthing in various ports where services are rendered

and necessaries supplied to her. Blackship may have claims

against her from several different mortgagees and maritime lienees,

all of whom may be of different nationalities. The mortgages and

maritime liens may accrue or arise in different jurisdictions or, in the

case of maritime liens, on the high seas. The maritime liens attach

to her appurtenances as well as her hull and are like a “leech to a

human skin”9 or a cloud hanging over Blackship. “It is a black cloud

that both the debtor and the lien holder can see, but to the innocent

purchaser it is a colourless, odourless and invisible vapour, that

only turns into a visible black cloud when the lien holder arrests

the ship and makes his lien known to the purchaser.”10 Both short

and long term creditors must keep abreast of Blackship’s f‌inancial

status. They must assure themselves that she remains not only

seaworthy but also creditworthy.

Blackship may be owned by one owner and yet sailing under a

f‌lag of convenience.11 Blackship may also change her registration

before, during or after mortgages and maritime liens have attached

to her. It is well known that ships such as Blackship are frequently

changing owners; still more frequent are claims and rights against

them for wages, repairs, and supplies.12 Blackship’s owner itself

may be abroad, its f‌inancial standing unknown, and no action in

personam may be available, thus leaving Blackship as “an elusive,

6 “Blackacre” is the proverbial example of real estate in hypothetical

property problems − see the entry “blackacre” in BA Garner, A

Dictionary of Modern Legal Usage (University Press, Oxford, 1990).

7 This suppositious name is inspired by LB Squires, “Statutory Liens

on Vessels in Washington: When does State Law govern Liens on

Blackship?” (1985) 60 Washington Law Review 967.

8 See EC Benedict, The American Admiralty, Its Jurisdiction and

Practice (Banks Gould, New York, 1850) 164. See also the judgment

of the Supreme Court of India in Liverpool & London SP&I Association

Ltd v MV Sea Success I [2003] 4 LRI 805 at [104].

9 See C Hill, Maritime Law (LLP, London, 2003) at 119.

10 P Heathcote, “Maritime Liens: How to Protect the Innocent Purchaser”

(2003) 17 MLAANZ Journal 125.

11 See Antares Shipping Corporation v Delmar Shipping & Portland

Shipping Co Ltd [1977] 1 Lloyd’s Rep 180; The Atlantic Star [1973] 2

Lloyd’s Rep 197.

12 See the comments of Ware J in The H B Foster 11 Fed Cas 952 (1858)

at 953.

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and the only, defendant − a single moving target.”13 Blackship may

escape from a jurisdiction, and a creditor may have no choice but to

institute proceedings against her in the next available jurisdiction.

Blackship may be arrested when she enters another port,14 as in

due course she must − unless she is The Flying Dutchman15- and

sold in yet a third jurisdiction. When a mortgagee of Blackship

seeks to have her sold by judicial sale after which she will be

scraped clean of all encumbrances, it will not be unusual to have

creditors from all over the world claiming against her proceeds.

Such proceeding usually involves the ranking of competing claims

among the mortgagee and necessaries suppliers from various

jurisdictions around the world. A vessel in the position of Blackship

is often a Lady in Red16 and the proceeds of the sale are invariably

insuff‌icient to satisfy the claims of all the claimants. Thus, priorities

among creditors become relevant.

13 See H Staniland, Comparative Analysis of Maritime Liens (unpublished

PhD dissertation, University of Southampton, 1990) 638. Legally speaking

a ship is chattel, but one of quite a special nature − it has considerable

permanence, is often of sizeable value, possess a high degree of mobility

and often has a great potential to do damage. Thus, it is not surprising

that the ship has a central position in all maritime legal relations − see S

Braekhus, “Choice of Law Problems in International Shipping (Recent

Developments)” [1974] 3 Recueil de Cours 261 and 262.

14 See RG McCreary Jr, “Going for the Jugular Vein: Arrests and

Attachments in Admiralty” (1967) 28 Ohio State Law Jour nal 19

and 20 for a melodramatic narration of a hypothetical surprise

arrest of a vessel at midnight. In Mackensworth v American Trading

Transportation Co 367 F Supp 373 (1973), Edward R Becker, District

Judge, alluded to the action in rem as follows in a judgment wholly in

verse form: “Admiralty process is hoary, with pleadings that tell a sad

story, of libels in rem - The bane of sea-faring men”.

15 The Flying Dutchman was a spectre ship, supposed by popular belief to

haunt the waters round the Cape of Good Hope. According to legend,

the captain of the vessel, van der Decken, was condemned to sail

forever round the Cape, on account of his blasphemous vow to round

the Cape even if he had to f‌ight God and the devil until doomsday. The

devil took the captain’s word and damned him to stay on as captain of

his ship, now a ghost ship, sailing the seas, until judgment day comes.

The devil left him just one small hope − only through the love of a

woman could he be released. The Flying Dutchman became the curse

of the seas, being avoided by everyone and not allowed in any port.

Wagner’s opera, Der f‌liegende Hollander, is based on this legend.

16 This reference is inspired by K Gross, MS Newman, and D Campbell,

“Ladies in Red: Learning from America’s First Female Bankrupts”

(1996) 40 American Journal of Legal History 1. It is interesting to note

that the use of gender-inclusive pronouns in bankruptcy legislation

dates back to 1570 when An Acte touchyng Orders for Banckruptes

13 Eliz, c 7, was enacted in England.