Maritime Liens and Mortgages

By
*Sani M. Adam 1.
INTRODUCTION

One of the most important trade and an important

means of interaction

between nation states is trade is the shipment harmonious of and and

1

aspect of international

goods. In fact, the ability beneficial trade relations

of nation states to maintain with each other depends

on the efficacy

standard of service rendered by the shipping industry, we are informed.

Ships by their vulnerable

vast size, weight of their voyages

and sophistication

coupled

with

the

nature

are open to varied

risks traversing

many seas and continents

of the world. This exercise, we are told, often where the ships are engaged in and for Cargo vessel
2.

results in far reaching legal consequences commercial enterprise, whether

as passenger

Hence, there must be understanding legal issues, rights, obligations, innumerable voyage and diverse

between nations particularly

0; the

immunities, arising

benefits etc arising from the during the course of the been

situations

of the ships. These interests, or enforcement

says a writer,

sometimes

exposed to extinction different

in foreign jurisdictions

under laws
3

from those applicable

in the vessel's state of registration. experiences Conventions were targeted

It is

such developments led to the mortgages. various

4

and the difficult International

of parties involved that on Maritime at establishing liens and

These conventions

uniform

rules for the recognition the corpus jurist interests against which

and enforcement

of these varied interests within nations. The varied

of the contracting are legally

and ratifying

recognisable

as attaching into

and enforceable proprietary rights

a ship or vessel

have been classified

because they affect the paper intends to examine some of the prominent of such proprietary rights and interests in vessels, i.e. Maritime Liens and

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Mortgages, international

their

meaning,

evolution,

nature,

types

and the

various

Conventions on Maritime liens and mortgages.

2.0 2.1

MEANING,

EVOLUTION AND NATURE OF MARITIME

LIENS

Meaning of Lien:

Authors have offered different

definitions

to lien, though not substantially

differing. A lien has been defined as "A right to retain lawful possession of a property of another until a claim by the person in possession against
5

the owner is met".

The author explaining

further

said, "It is sometimes

regarded as a form of 'self help' by the person claiming the lien in order to induce the owner of the property to comply with his obligation or otherwise satisfy the claim of the other".
t.C, Ilogu defines a lien as
6

to pay

"that interest or right in the property or constitutes from

of another which renders for any claim arising Usually, he explains, transaction

that property as a 'security' interest or right".

such identified

"such interest or right arises from some commercial which imposes an obligation

or Duty on the party who 'owns' or duty remains (lienee) may

the property (the lienor). Where such obligation unfulfilled, the other party to the transaction

exercise the right of 'lien' over the identified to the party in default until the obligation, or remedied".
7

property belonging

duty or act is fulfilled

The foregoing property property, property

therefore

shows that the lien is connected

to the asset or

e.g. Vessel or Cargo or freight

or in other cases, even landed even where the

vehicles etc. The lien attaches to the property

is not in the hand or possession of the owner, but in possession

of the lienee exercising the right of lien or a third party.

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The distinction

between a liens and a mortgage

lies in the nature of the

rights, for they are indeed similar. While the right of lien does not vest, but remains vests dormant or silent until exercised, its remedies a mortgage from the specifically it is of the

on creation

and describes

moment

created and with either the express agreement parties thereto as to the application

or understanding
8

of those remedies.

There are several types of lien which includes: Possessory lien, statutory lien, equitable lien and maritime lien. Our concern is Maritime lien, but we

shall briefly consider distinction

other types first in order to bring out clearly, the lien and other types.

between maritime

Possessory lien as suggested from the name, arises mainly from a party being in 'Possession' of the property at the time of its accrual, and in most Jurisdiction, claiming property. at the time of enforcement. by asserting the The lien is lost once the party right loses 'possession' of the

damages
9

This feature of actual possession distinguishes

it from Maritime

lien in which case the lien travels with the property or "res" and does not depend on Possession. This type of lien (Possessory) is usually exercised by ship builders, ship repairers or vehicle dealers who seek to retain the vessel or vehicle until the cost of construction, price have been paid. repair, charges or purchase

However,

it

has been

established

that

what

amounts

to

been

"in

Possession" of a vessel is a question Narada

10

of fact in any given case, in The

even though the master and crew remained on board, brando J. has a possessory repairers Newcastle lien while in The who carried were not out "in by

found on the facts that the repairer

Gregos" where it was held that the plaintiffs repairs while the vessel was berthed near

possession"

and had no right to exercise the remedy

of "self-help"

removing engine parts. In Nigeria, United Kingdom and most common law nations, the lien exercised by ship repairer is a possessory lien and also a

69 I P age

statutory dependent

lien. Under the United States law, it is a maritime on possession.

12

lien who is not

A statutory

lien is one that

is created

by statute

where such statute to the

enables a party to a transaction

to exercise

a right attachable

property of another e.g. right of retention of the unpaid seller of goods by the Lagos State Sale of Goods Act, 1972 and the Nigerian Jurisdiction Admiralty

Act, 199113 which confers a right of action "in rem" against liens once certain

the vessel in cases which do not give rise to maritime statutory condition are satisfied.

A fundamental the statutory the "res".

14

difference

between statutory

lien and maritime

lien is that

right does not come into being until a writ is issued against

An Equitable relationship enforceable and those

lien on the other hand may be implied owing to fairness or wrong conduct.

or imposed Thus

into a

it is a right

against the property of a party who create it in a transaction who acquire interest subsequently (third parties) in such

property with notice of such an interest. This type possessory Lien.

15

of lien does not depend

on "possession"

as in the case of

2.1

Maritime Lien

Maritime liens are of a different

nature from those noticed above and they

operate in a different way. A Maritime lien/we are informed, is a privileged claim on a ship, or on her Cargo, or on either freight, maritime in respect of service done to or injury both of these and the caused by them.
16

lien cannot generally

exist in respect of a foreign requisitioned

state-owned by a

vessel or a vessel compulsorily Sovereign state." An exception

for public purposes

is however created where a vessel owned

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by a foreign

state is engaged

in ordinary

trading,

no immunity

will be

granted to her."

Maritime lien is based on the concept that the ship (res) has itself caused harm, loss or damage to others or their property and must itself make and

good that loss or damage. The ship is deemed to be the wrongdoer

not its owners and is liable to the party who suffers as a result of such wrongdoing. Thus upon the happening of the wrongful act, a maritime of the party concerned and attached lien

arises in favour

as a right in and a right which

against the property

of the ship concerned.

It is therefore

detracts from the absolute title of the owner of the res.

Its evolution customs

(history)

is traced

back to the development

of common

and practices

of the Admirals
19

in England and France in 14th

century, we are informed. later codified salvors treatment enforceable

In France, these customs and practices were the rights of seamen to their wages, and which were accorded the Admiralty
20

and recognised

of ships or cargo to reward over other claims before

preferential as rights

court

against the vessels concerned.

Such claims became the law of most

basis of the rights or interest referred to in modern maritime nations, as maritime lien.

Judicial decisions and writings of learned authors have traced the origin of maritime lien and simultaneously exposing its important features. The

origin of maritime following the

lien, as perceived under English law originated in The Bold Buccleugh"'. The court

in 1851 here,

decision

emphasised whosoever

that maritime

lien is a right which 'travels' with the ship into go. Thus, it does not depend

possession it may subsequently

on possession nor upon notice through filing at a registry as .n the case of a mortgage. Emphasizing on this, a writer says:

"A maritime court action,

lien attaches

to the vessel and gains priority evidence

without

any i.e. it

deed or other written

or any registration,

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need not be registered, or owner who salvage reasonably registry be expected,

i.e. obvious reason for this is that a ship's master another sinking vessel, for instance, could not

mid-ocean

or in a foreign

port, to hurry to a their

which possibly could be thousand to undertake

miles away to register the registration

lien. Even where the facilities master would most probably

exists, the

have many pressing

needs on his hands

22

ranging from safety at sea, crew problem to safety of cargo etc."

It is therefore

often referred to as 'secret' lien and said to be indelible until court in an action in rem and 'good against of the vessel acting without

acted upon by the admiralty the world' including

a good faith purchaser

notice of the lien's existence.

From the jurisdictional tort

historical

point

of view

thus

and

having

regard

to some

variations,

maritime

liens usually arise either from contract, of the following claims: Seamen's

or operation

of law in respect

wages, master's wages and disbursements,

salvage, damage caused by a

ship's tortious act e.g. collision, supply of necessaries (now USA only) and repairer's lien (USA only). From available sources, the following the salient features of maritime with same: 1. The lien arises upon the occurrence collision or wages becoming payable. 2. Once created, the lien is enforceable even if the ship is sold and of the event creating it, i.e. lien as they are consequences represents associated

whether or not the purchaser has notice of it; 3. The lien is enforceable through an action in rem and as part of this,

(a) the ship, cargo or freight subject to it is liable to arrest prior to a hearing on the merit; (b) Jurisdiction service of a writ in rem and arrest; 4. In respect of the ship, cargo or freight, the target for the action, the lien is enforceable against other creditors, (secured or unsecured) on the merit is founded on the

and subject to existing possessory lien, taken priority over all other

721 P age

creditors whether the claims of those creditors arose before or after the creation of the lien. 5. Properly arrested as part of an action in rem in the court enforcing the lien may be subject to judicial sale and the proceeds are

available to a lien holder and other claimants in rem; 6. Judicial sale as a step in enforcement transfers the lien to the proceeds; 7. The lien is extinguished freight to which it attaches; 8. The lien may be extinguished the debt and, possibly guarantee.
23

of the lien extinguishes

it and

by the destruction

of the ship, cargo or

by larches, waiver or satisfaction of bail, or the provision

of

by lodging

of a

3.0

MARITIME

MORTGAGES

This has been defined

as the creation

of a charge or encumbrance
24

in

favour of the lender by the person wishing to borrow. (mortgagor)

Thus, a ship owner

who wishes to obtain money because of under-capitalisation his interest or property in the vessel to the or owner is

may do so by transferring lender (mortgagee) free to continue

as security operating

for the loan. The mortgagor the vessel

and trading

as a profit-making or

possession provided he does not act in such a manner as to jeopardise put at risk the ship as security for the mortgage the mortgagee's position. The mortgagee and thereby

prejudicing

does not take actual possession is that the vessel shall be is called off on

because the whole idea behind the transaction redeemed repayment and the constructive transfer

to the mortgage

of the amount due by the mortgagor.

But under the common absolutely mortgage conveyed

law, the old practice

was that

the mortgage by was

the vessel to the mortgagee

and on repayment This method

will reconvey

the vessel to the mortgage.

discontinued

since 1825 and substituted

in most common

law countries

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by the introduction mortgage)

25

of special forms of mortgage

by statute (i.e. statutory

The essential feature of a mortgage and upon satisfaction redeemed. property (mortgagor)

is that it is only a security transaction is secured by the property is the

of the loan which

But where it is not redeemed becomes realisable by the

by a time limit provided, mortgage. The ship

owner

remains in actual possession, and continues to use the vessel to the mortgagee's interest is done.

provided nothing detrimental

An equitable

mortgage

may also be effected by the deposit of the deed of of an existing loan. This loan with another because person in

legal mortgage consideration maintained; of

in respect another

is possible

as earlier It

actual possession of the vessel is still in the mortgagor. by means of an agreement to enter

may also be created mortgage

into a legal is under may

in consideration

of a loan. Also, where

a vessel

construction, constitute

a deposit of the builder's certificate

in respect thereto

an equitable

mortgage of the vessel. The effect of an equitable mortgagee a preferential to the overriding right over interest of

mortgage is to confer on the equitable the thing charged. It is however

subject

existing legal mortgages and maritime

lien holders.

It is essential to emphasise that while lien does not vest title in the vessel on the lienee, the mortgage does vest title on the mortgagee distinguishing not necessarily feature between lien and mortgage. as the most

Also, the lienee does' due

have the power of sale of the vessel (i.e. without sale etc.), the mortgagee ship registries

process of law leading to a judicial event register of default. mortgage

27

has in the sand

Further,

most

acknowledge

transactions

and thus giving notice, thereof,

liens are

not registrable.

3.1

Registration

741 P age

A legal mortgage of a ship is normally done in writing and is registered or recorded in the ship'!) register at the Port of registry of the vessel in most jurisdictions.
21

There is no legal obligation

to register,

but it is usually who

done to give proper legal effect to the mortgage.

Any mortgagee

does not register Is not entitled to the benefits under the Act especially in terms of priorities to be discussed in the later part of this paper, failure to register it must however be emphasised does not under the mortgage no registration of

void. It is also obvious that if a ship is not registered, mortgage can be effected on it. Registration public of the transaction

is deemed to be notice to the is a public document

since the ship's register

which is available for inspection by interested advantage creditors of registration of the mortgagor is obtaining

parties. The most important against later secured It gives

priority

against all non-registered encumbrances

mortgages.

precedence

to later registered

as the ranking in terms of of the mortgage.

priority is governed solely by the date of registration 3.2 Priorities

Registration gives a mortgagee priority over:

(a)

Earlier unregistered knowledge of them;

mortgages,

whether

or not the mortgagee

has

(b) (c)

Later registered or unregistered Unregistered mortgagee debentures

mortgages; creation, even though the

of earlier

knew of them; advances subsequently the made under a prior registered was that the mortgage (this

(d)

Additional mortgage

where

under

agreement advances

should cover present and future

by the mortgagee

arises only under common law and not statute). A mortgagee priority over: (a) (b) Mortgages registered earlier; Maritime liens, whether earlier or later,
29

of a registered

mortgage

does not however

have

75 I P age

(c)

Any claims in connection

with which the vessel had already

been

arrested at the time when the mortgage was entered into; and (d) Any mortgages entered into under certificate of mortgage where

notice of the certificate

of mortgage appeared on the register at the entered into his mortgage.

30

time when the mortgagee

L C. Ilogu however inform us that the issue of priorities only arises where a 'res' has or is to be sold by the order of a court of competent or other authorised of a proprietary fails to appear informed obtaining further jurisdiction

body in order to satisfy the monetary claim of a holder against the res where the ship owner and put up security. action We are in rem or ranking in in the

right enforceable to defend

the sanction

that the mere fact of commencing

judgement

thereon does not enhance the claimant's interest must be positioned riqhts."

priority. The claimant's given jurisdiction of some national

as appropriate

among other competing

Further, an examination of the

laws or rules of procedure on maritime

and the provisions

various conventions

liens and mortgages

seem to suggest

the following order of ranking of proprietary 1. 2. 3. Statutory,

rights in ships, says t.C, Ilogu:

court and other charges and costs;

Cost of arrest sand sale of the res; Maritime liens which rank inter se from salvage, damage, seamen

and masters' wages to repairers (USA), necessaries (USA); 4. 5. 6. Possessory liens, necessaries; Registered mortgages, and charges; Statutory claimants, 7. 8. rights in rem which include cargo and charter party

repairers, tonnage, pilotage etc; (USA only) and

State liens or mortgagees Other trade creditors.

32

It is submitted jurisdictions, better and

that in view of the differences enumerated

in laws of countries

and

this order of priority more acceptable

by L.c. Ilogu is indeed a priorities for the

basis

of determining

76 I P age

purposes of sharing the proceeds of sale of the res. It appear: to be the most prevalent order of priority amongst nation states. 4.
INTERNATIONAL MORTGAGES CONVENTIONS ON MARITIME LIENS AND

From

our examination

of the

issue of priorities,

and the

foregoing and

discussion so far, it is obvious that the recognition rules relating to maritime among the countries uniformly problem problem. recognised. of liens and mortgages

of the principles

is no uniform

and duties

of the world. Only very few principles and rules are But the situation resulting is still not helpful because of the from jurisdiction differences and

enforcement

The aim of the various

international

conventions

on maritime

liens and mortgages

and other maritime uniform

claims, namely the 1926, 1967 for the recognition and for

and 1993, was to secure enforcements

framework interest.

of these proprietary

The reasons responsible

the little success is not farfetched.

The primary reason is attributed

to the

lack of consensus on the confect of laws principles governing the creation and operation priority of maritime liens. Also, the difficulty in accepting the

of maritime to the

liens over mortgages conflict between the

in some jurisdictions operating interests interests,

has been (i.e. ship

attributed

owners, salvors, crew) and the financial

(lenders). The resultant any of these

effect of all these is that many nations are yet to implement conventions enforcement and therefore regimes. subjecting the proprietary

rights to divergent

The

1926

convention liens and its

for

example over

recognises mortgages.

certain The

categories liens are

of also

maritime

priority

extinguished

after one year with a few registration state in which the vessel

in accordance with the is registered. We are

law of a contracting however informed

by our sources that as at 1995, only 28 states had 69 years after."

ratified the convention,

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The 1967 International relating to maritime the 1926 convention from the recognised

Convention

for the unification

of certain

rules

liens and mortgages

retains substantial

provisions of disbursements further

except for the removal of master's categories of maritime

lien. The convention

requires the deregistration registered mortgagees.

of ships should be with the consent of the only 4 states

Also, as at 1995, we are informed,

had ratified it although

some state laws which have not ratified it is said

34

to conform with its provisions, e.g. Germany.

The International

convention

on maritime

liens and mortgages

1993 was

carried out under the auspices of the International (IMO) unlike the previous ones which were initiated It is substantially categories excluded average other similar to the earlier conventions

Maritime Organisation by the United Nations. and recognises the

of maritime

liens as in the previous

conventions,

but it has general

from the list of maritime contributions and damage

lien claims wreck removals, arising from the carriage compensation

of oil and under

hazardous

substances or statutory similar

where

is payable

another convention convention recognition, contains

provision. With regards to mortgages, the on earlier ones which relates to

provisions

enforcement

and priority of interests registered registration.

in accordance

with the law of the stage of the vessel's provides for registered

This convention

mortgages to be extinguished where the sale takes

by judicial or forced place in the state or

sale of the vessel except registry

and there is consent as between the parties that the mortgage

should continue.

The provisions of these conventions national

may differ from those obtained under with the convention. nations Also, the the

laws which are often at variance have not been ratified

conventions powerful

by most

especially

maritime

nations such as Japan, United States and the United This has increased the

Kingdom have not ratified the earlier conventions. conflict of laws principles and rules governing of these proprietary rights.

the creation and operation

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Thus, the positive effects of the provisions of these conventions been appreciated applied operation in view of the fact that conflicts conflicting national

have not laws is and

more often in resolving of these proprietary

arising from the creation

interests

or rights to the detriment

of the

holders of such rights or interests. 4.1

Nigeria

Although conventions

Nigeria earlier

is yet

to

ratify

and

for

implement of its

any

of these laws

mentioned,

most

provisions

national

relating to maritime provisions

liens and mortgages

substantially

conforms with the Act, of

of these conventions. maritime

S. 5(3) of the Nigerian Admiralty the following categories

1991 defines maritime (a) (b) (c) (d) liens:

liens and recognises

salvage; or damage done by ship; or wages of the master or a member of the crew of a ship; or master's disbursements.

The Nigerian

Merchant

Shipping Act, 1990 provides

in S. 374(1) a two the

years limitation

period for pursuing Jurisdiction

such claims. As for mortgages,

Nigerian Admiralty

Act, 1991 defines mortgage

in 8.26(1) to

include "a hypothecation, while the Merchant

or pledge of and a charge on the ship or share" act, 1990 provides the requirements for

shipping

mortgaging

Nigerian vessels, registration

and priority

of such mortgages

etc which are substantially

the same as the provisions of the International

Conventions earlier examined.

From an examination

of the national laws of some countries especially the even though they have not ratified the laws conform substantially with the

common and civil law jurisdictions, various conventions some of their

79 I P age

provision mortgages.

of the various International

Conventions

on Maritime

liens and

5.0

ENFORCEMENT

PRINCIPLES

The International and mortgages principles governing

enforcement necessarily from

of the proprietary

rights of maritime of conflicts and

liens of law

involves the consideration in national of maritime laws

arising

differences categories

procedures of law

the various

claims. A conflict

arises where a court in a jurisdiction upon a matter involving

is under an obligation

to adjudicate

some system of law other than that of the trial with a view to fulfilling the reasonable E.g. contract and made

court in any given situation legitimate expectations

of the parties to a transaction.

or to be performed

in a foreign country and or be foreign parties.

In resolving conflict of law problem, three basic issues arise, namely (a) jurisdiction or Choice of forum; (b) Choice of Law; and sometimes (c)

Recognition of foreign judgement.

5.1

Jurisdiction
relates to the ascertainment the subject matter of the power or authority by the parties of the the

jurisdiction court

to try

presented

under

applicable

national

legislation

establishing

the court or relating

to the

subject. jurisdiction

may be declined where the court lacks such, e.g. on clause in a contract or subject matter.
35

account of forum or arbitration Also, some conventions

may curtail jurisdiction

of court, e.g. a convention

imposing the domicile of the defendant in countries within the European Union.

as the primary basis of jurisdiction

36

80 I P age

5.2

Choice of Law
and it is determined that a court is is what law

After resolving the issue of jurisdiction conferred with jurisdiction,

the next issue for determination

will apply? Many rules on determining but the significant 1. 2.

choice of law have been evolved,

ones in relation to maritime claims are:

Lex Fori, which means the domestic or national law of the forum; and Lex causae, which transaction means the law which governs the question may further be reduced into the or

and which

law of

domicile (Lex domicili) or law of place of contract (Lex contractus).

It is a generally substantive foreign rights

recognised

principle

of International

law that

the by by of

of the parties

to an action

may be determined are determined

law (Lex causae) while matters

of procedure

the lex fori (local law). The problem determining what is a substantive

that often arise is the difficulty

37

issues and a procedural one.

The Nigerian approach

appears to be lex fori and therefore

procedural.

This is derived from decisions such as Pavlos Chiladakis v. Owners of MN Rinio.

38

Thus, this absence of uniform

international

means in resolving on

choice of law problem tend to encourage forum shopping by claimants

the one hand and on the other hand causes inequity or injustice in certain jurisdiction.

5.3

Recognition of Foreign Judgements

As a general rule the judgement direct application procedure

of the court of a foreign country

has no
33

in another country unless enforced or recognised. or registration of foreign judgements

The are

for the enrolment

mainly issues of lex fori and vary from jurisdictions, for consideration been that it is a final judgment

the common factors

and that the due process

of law has been complied with.

81 I P age

5.4

Procedures and Types of Action

In most common

law and some civil law jurisdictions,

2 types of legal

action are maintainable,

namely; an action against the vessel itself known

as an 'action in rem' and/or action against the owner known as 'action in personam'.

There are conflicting procedural

schools of thought in nature.

as to whether an action in rem is as procedural in the of legal thought is

or substantive

It is regarded

United Kingdom and here it is predicated

on the commencement

action and the arrest of seizure of the vessel. The substantive prevalent

in U.S.A. and Canada and it is based on the legal principle that is enforceable against the "res" or person of the

the right of actions

vessel. The debate is not our concern, but judicial decisions do shed some light on the controversy. the conflict commence Hence, where procedural approach is adopted,

of laws is resolved

by lex tori." In practice,

it is usual to where the

an action 'in rem' against the res in a jurisdiction

vessel can be located since any order or judgement is to be directed personam' at the res itself. On the other

of the applicable court hand, an action 'in,

being directed at the person of the owner, charter or operator should be commenced where he can be found, either

of the vessel

personally or in relation to his business.

While in most common

law jurisdictions,

writs 'in rem' and 'in personam' liens and and in of or

can be served through master of the vessel to enforce maritime mortgages, some in civil law countries, countries are done e.g.

'in rem' actions are unknown France and the -the Belgium,

of these claims

enforcement

maritime

by applying which prevent

'Saisae Conservatioire' defendant's

conservatory

attachment

assets from

being removed from jurisdiction orders for arrest, attachment,

or dissipated. This approach is likened to detention or even mareva injunction which

821 P age

can only be sought in common

law countries

after issuance of a writ in

rem or in personam, the most commonest serves as a form of interim jurisdiction claim. over the matter U.S.A., there

being the Arrest Order which remedy; a ground of

relief or provisional

and as a way of obtaining is an additional process

'security' similar

for the

In the

to arrest

procedure in Nigeria and U.K. called 'Action in Personam with Attachment'.

The procedure

for judicial

sale of vessels may vary from jurisdiction

to

another, but the end result is often that all rights in rem are extinguished.
40

A sale by a competent

court of authority

confers good title to the new and will be so recognised Brown D.

owner of the vessel free from all encumbrances in other jurisdlctlons." Trento
42

In support

of this assertion.

J.

in The

said:

II

the doctrine

that the sale of a vessel by a court of discharges her from liens of every

competent description 6.0

OBSERVATIONS.

jurisdiction

is the law of the civilised world:

CONCLUSIONS AND SUGGESTIONS

The foregoing requires individual

analysis obviously and solutions

present numerous internationally

legal problems which

attention

at first and then within in

country's jurisdiction.

In the first place, there is the difficulty liens uniformly

defining the scope and maritime

among nation states. The

end result as earlier noticed is the inequity and injustice resulting from the non-recognition of some in certain jurisdictions. on the need to introduce Some writers have put of

forward suggestions

a system of registration

Maritime liens as done in the case of mortgages within a limited period of its accrual. While we concede to this suggestion, we shall be quick to point out that such is only practicable uniformly recognised written the scope of maritime liens is of

by nation states, otherwise a barrier.

the major problem problem earlier

non-recognition

will still constitute of maritime

Another

likely to noted by

pose with registration

lien is the difficulty

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Justice R. D. Muhammed obvious

when he said " .. it need not be gist fired. the or owner who salvage by expected, which possibly another

reason is that a ship's master

sinking vessel, for instance could not reasonably or in a foreign thousand undertake pert to hurry to a Registry their

mid-ocean could be to

miles away to register the registration

lien. Even where the facilities

exists, the master would most probably from safety

have

many pressing

needs 0:1 his hands ranging

at sea, crew

problem to safety of cargo etc

There is the compelling various conventions principles

need for the International

Community

to ratify the

for the unification

of the conception

and enforcement

on maritime

liens and mortgages. of the International

Thus there is the need for Conventions into the national need for this

adoption and integration laws for uniformity

of rules and principles, bearing

the compelling

cannot be emphasised industry

in mind the importance

of the maritime

in the development

of International

trade and relations between trade and

nation states especially with the increasing level of International transportation by sea and use of ships.

ENDNOTES
*Sam M. Adam (LLM) Dept. of Property & Commercial Law Faculty of Law

University of jos 1. Christopher 1981) p. 23 2. i.c. Ilogu. Modus International 2, June 1997, p. 35 3. 4. Ibid The 1926, 1967 and 1993 International Liens & Mortgages Conventions on Maritime Law & Business Quarterly, Vol. 2 No. Hill, Maritime Law (Great Britain: The Pitman Press,

841 P age

5.

justice

R. D. Muhammed, International

jCA, Commenting Perspective,

on Maritime

Liens and

Mortgages:

Abuja, 1997, p. 1 and citing

Alfred H. Sivertown: The Law of Lien (1988) 6. 7. 8 Ibid L. C. Ilogu, op cit, p. 35 See generally "Enforcement of maritime Claims" by D.C. jackson,

2nd ed. as cited by t.C, Ilogu, op cit, p. 36 9. 10. 11. 12. 13. 14. 15. See The Ally (1952)2 Lloyd's Rep. 427; The Scio (1867) 1A & E353 (1977)1 lloyd's Rep. p. 256 (1986)2 lloyd's Rep. p. 347 See S. 91 Maritime Lien Act (46 US Code) S. 5 (4) of the Act See The Monicas (1967)2 lloyd's Rep. 113 See The Ugland Trailer (1985)2 lloyd's Rep. 372 and The Annangel Glory (1988)1 loyd's Rep. 4'j 16 17. 18 Fhe Rippon City (1897) p. 226 Vascongada v. Cristina (1938) AC 485 or (1938)1 Alier 719 See S. 10(2) The State Immunity Act, 1978 of U.K. and The

Philippine Admiral (1976) 1 Alier 78 19. 20. L. C. Ilogu, op cit, p. 37. William Tetley, Maritime liens & Claims, 1st ed; Chapter 1, p.38-41 and cited in t.C, Ilogu, op cit, p. 37 21. 22. 23. 24. 25. (1851)13 ER at 890 justice R. D. Muhammed, jCA, op cit, p.2 L. C. Ilogu, op. cit, p. 38 Christopher Hill, op, cit, p. 23 Merchant Shipping act, 7990 and U.K.

See S. 323 (i) Nigerian

Merchant Shipping Act, 1988 which amended the 1894 Act 26. 27. 28. See King v. King (1735) 3P WMS 358 See S. 326(2) Nigerian Merchant Shipping act, 1990 See S. 323 (2) Nigerian Merchant Shipping Act, 1990; S 31 ID U.K. Merchant Shipping Act 1894 (As amended by the 1988 Act)

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29

See The

Loannis

Daskaleiis

(1974)

1 lloyd's

Rep. 174:

The

Pickanranny (1960)1 teyfs Rep. 533 and TheColorado (1923) 14 lloyd's Rep. 251 30. A Certificate of Mortgage is made to cover circumstances where the ship owner desires to mortgage it outside the country in which the ship's port of registry is located. The ship owner then applies to the registrar at the port of registry to issue a certificate of mortgage. See S. 42 of the U.K. Merchant Shipping act, 1894 31. 32. 33. 34. 35.
t.C, Ilogu, op cit p.46

Ibid Ibid. p. 40 Ibid See The Eleftheria 11969)2 ALLER 641; The Nordwind (1987)3 NSCI; The Atlantic Star (1974); The Abidin Daver (1984) AC 398

36.

See The Loannis Daskelelis (1974) 1 lloyd's Rep 174; The Halcyon Isle (1980)2 lloyd's Rep 325; The Scotia 35 F907 (SD. NY 1880)

37. 38.

(1986)2 NSC 638 See Dicey and Morris "The Conflict of Laws" 11th ed; cap 14 p. 418 as cited in t.C, Ilogu, op. cit, p.44

39. 40. 41. 42.

See Phrantzes v. Argenti (1960)2 QS 19 at 35 See The Edith (1976) 74 US 518 Per Lushington in the Tremont 166 ER 534 at 534 (1888) 4F 657 at 662 E.D. Mien.

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