Maritime liens and the conflict of laws - an exegesis of The Halcyon Isle and preceding Anglo-common law decisions
| Date | 01 January 2011 |
| Pages | 321-372 |
| Published date | 01 January 2011 |
| DOI | 10.10520/EJC74141 |
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9 MARITIME LIENS AND THE CONFLICT OF LAWS – AN
ExEGESIS OF The halcyon Isle AND PRECEDING
ANGLO-COMMON LAW DECISIONS
9.1 Introduction
More often than not, maritime liens involve foreign elements. The
hypothetical problem sketched in paragraph 1.1 is not farfetched.
Over the years, courts in Anglo-common law jurisdictions such
as England, Canada, South Africa and Singapore have been
confronted with similar scenarios which resulted in reported
decisions. Moreover, the highest courts in Canada and South Africa
have conclusively dealt with the question of the recognition and
enforcement of foreign maritime liens. Similarly, the Privy Council
has determined the question for Singapore. In England, although
there are a number of reported decisions by superior courts, the
House of Lords has yet to consider the issue. Although none of the
decisions in any of these jurisdictions is binding on an Australian
court, the reasoning in the various decisions in these countries
may serve as guidance when the question of the recognition
and enforcement of foreign maritime liens is finally determined in
Australia.
The Halcyon Isle1 is the cause celebre in respect of the recognition
and enforcement of foreign maritime liens in the Anglo-common
law jurisdictions. This issue has, however, been dealt with before
the Privy Council’s decision in The Halcyon Isle2 by courts in both
England and Canada. In this chapter, the pre-Halcyon Isle decisions
of the courts in England and Canada are reviewed and commented
on in chronological order. The English decisions are examined first,
and thereafter the Canadian decisions.
9.2 The pre-Halcyon Isle English decisions
9.2.1 Don v Lippmann − Remedies are determined by the Lex
Fori
In Don v Lippmann,3 the father of the appellant was in France in 1802
when hostilities recommenced between England and France after
the peace of Amiens. Like many other British subjects, the father was
“tyrannically detained” in France. While his father was imprisoned, a
Paris merchant drew two bills on the father ordering him, as acceptor,
to pay to Lippmann, who was named in the bills as payee, the sum of
20,000 francs in respect of each bill. Soon afterwards, the appellant’s
father returned to Scotland where he died.
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Lippmann instituted proceedings on the bills against Don as the
representative of his deceased father. The issue to be decided
was whether the law of France, where the bills were accepted and
payable, or the law of Scotland, where the debtor resided, should
be applied. The House of Lords, on appeal from the Scottish
Court of Sessions, held that the law on this point was well settled,
namely whatever relates to the remedy to be enforced, had to be
determined by the lex fori, and that “no one can say that because
a contract has been made abroad, the form of action known in the
foreign court must be pursued in the courts where the contract is to
be enforced, or the other preliminary proceedings of those courts
must be adopted, or that the rules of pleading, or the curial practice
of the foreign country must necessarily be followed.”4 It is now
universally accepted that the lex fori governs procedure.
9.2.2 The La Constantia − The First Decision on the Recognition
of Foreign Maritime Liens
The question regarding which system of law should determine the
existence of a maritime lien was debated by the English courts for
the first time in The La Constantia in 1846.5 In this case, a master
of a vessel sold part of the cargo in Rio de Janeiro in order to
pay for necessary repairs to the vessel. The owners of the cargo
claimed damages in the English courts and based their claim on a
maritime lien. They claimed priority to other creditors who relied on
a bottomry bond.
Dr Lushington CJ rejected the cargo owners’ claim because the
maritime lien they relied on was not recognised under English law.
He held that whoever sued in a court of law, be he a foreigner or
native, could only claim that remedy which the Court in which he
sued was in the habit of giving to all suitors according to the law it
usually administered.6 This statement of Dr Lushington CJ was of
great importance for the further treatment of maritime liens in the
conflict of laws, because together with the House of Lords’ decision
5 (1846) 2 W Robb H 487. See also R Steinmeyer, Die
Schiffsglaubigerrechte im sudafrikanischen nationalen und
internationalen Privatrecht (Verlag Peter Lang, Frankfurt am Main,
1985) 65 to 66. It should be noted, however, that in Hussey v
Christie (1807) 33 ER 417, at 419 the Court of Chancery exercising
admiralty jurisdcition (see also R v Carew (1682) 23 ER 306) held
that a lien which was acquired on goods in a foreign territory followed
the property, though it be carried into another country subject to a
difference jurisdiction. See also the notes by JR Ingersoll to Note XXIII
in F Rocci, A Manual of Maritime Law translated from the Latin by JR
Ingersoll (Hopkins and Earle, Philadelphia, 1809) 31.
6 The La Constantia (1846) 2 W Robb H 487 at 492.
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in Don v Lippmann,7 it laid the foundation for treating the maritime
lien in English law as a procedural remedy.
9.2.3 The Milford − An Unsatisfactory Decision
In this case, the plaintiff instituted proceedings in rem in England
for wages resulting from his service as a hares necessaries8 after
the death of the master of an American vessel.9 Under English law
he had a statutory lien against the ship and freight. It was unclear
whether he had such a lien under the lex loci, namely, the American
law.10 Since the court had no contract before it and the proceeding
originated in England, it was a question of remedy, not of contract
at all. It was unnecessary to decide whether a maritime lien existed
under the lex loci since the lex fori governed the remedy.
A number of observations may be made about The Milford.11 In
the first instance, it should be pointed out that there was no clear
conflict of laws problem.12 The decision appears to have been
based on the inconvenience involved in applying foreign law and
the consequent reluctance of the Court to do so.13 In other words,
the supposed “inconvenience” in ascertaining and applying foreign
law can lead a court to decide in a doubtful case that its own rule
of law is procedural and therefore applies, and can thus avoid
such “inconvenience”.14 It should be remembered that The Milford
15 was decided in the mid-nineteenth century when the principles
of conflict of laws were ill-developed, access to foreign law was
limited and cumbersome, and the courts had not yet thrown off their
reluctance to apply foreign law. If The Milford16 had to be decided
8 A “hares necessaries” is a person who takes command of a vessel
when the master is deceased.
9 The Milford (1858) 166 ER 1167. See also Steinmeyer, op cit n 5, at
66 to 67; and paragraph 10.3.5.4.
10 See also TAG Beazley, “Maritime Liens in the Conflict of Laws” (1978)
20 Malaya Law Review 111 at 116.
11 (1858) 166 ER 1167. For a discussion of The Milford, see for example,
DR Thomas, Maritime Liens (Stevens & Sons, London, 1980) at [580]
and [581]; Beazley, op cit n 10, at 116 to 118; EC Mayers, Admiralty
Law and Practice in Canada (The Carswell Company Ltd, Toronto,
1916) at 47.
12 H Staniland, A Comparative Analysis of Maritime Liens (unpublished
PhD dissertation, University of Southampton, 1990) at 641.
13 See J Sanger, The Applicable Law on Maritime Liens: A Comparative
Analysis of English, South African and Ger man Law (unpublished
minor Master’s thesis, University of Cape Town, 2000) 21.
14 Beazley, op cit n 10, at 117.
15 (1858) 166 ER 1167.
16 (1858) 166 ER 1167.
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