Lloyd's Maritime and Commercial Law Quarterly
LIEN HOLDERS AND MORTGAGEES: WHO SHOULD PREVAIL?
Professor Francesco Berlingieri*
A. The law on maritime liens and privilèges maritimes prior to the attempts at unification
When the first attempt to unify the law on maritime liens and mortgages was made by the Comité Maritime International (CMI), national laws could be grouped in the following four different systems:
- (i) The English system, in which there were relatively few maritime liens, which secured claims in tort (damage done by the ship), in contract (wages, master’s disbursements and bottomry) and quasi-contract (salvage).
- (ii) The United States system, in which the lien for master’s disbursements was expanded to include all supplies and services to the ship, irrespective of whether or not paid by the master, and other liens were added.
- (iii) The French system, adopted in all civil law countries, in which practically all claims in contract arising during the voyage of a ship were secured by a privilège maritime.
- (iv) The German system, in which all claims subject to the shipowner’s limitation of liability were secured by a gesetzliches Pfandrecht (statutory pledge).1
Privilèges maritimes had, in most civil jurisdictions, the same characteristics as maritime liens. The claimant could, in fact, enforce his claim against the vessel notwithstanding a change of ownership.2 Whether he could enforce against the ship a claim against a person other than the owner is less clear.
It may be of some interest, for the purpose of this study, to analyse the various
* President of the Comité Maritime International; Professor of Law, Genoa. This paper is the revised text of the Fifth Annual Lecture of the Institute of Maritime Law of the University of Southampton, delivered on 3 December 1987.
1. Dr Sieveking so stated at the CMI Venice Conference in 1907 (Comité Maritime International—Conférence de Venise, Bulletin No. 19 (hereafter “CMI Bulletin No. 19”), p. 632):
… before we are able to discuss and to vote for the abolition of the one or the other lien I am compelled, on behalf of our Association, to put to the formal vote of the Conference the principle which I have already pointed out to you—that is, that in every case where a shipowner’s liability is limited, a lien should be granted to the creditor.
A similar reason was suggested by some authors in respect also of the privilèges maritimes in civil law countries. It has in fact been suggested that the reason why all maritime claims were entitled to priority was that all maritime claimants were subject to the shipowners’ limitation of liability, since the owner was liable only where there is fortune de mer: Garrigues, Curso de Derecho Mercantil, Vol. II (Madrid 1969), 552.
2. The droit de suite was clearly provided in Art. 190 of the French Code de Commerce, as follows: Les navires et autres bâtiments de mer sont meubles. Néanmoins, ils sont affectés aux dettes du vendeur, et spécialement à celles que la loi déclare privilégiées.
The Italian Codice di Commercio of 1882 provided in Art. 674 that vessels are liable, also in the hands of a third party in possession, for the payment of the privileged claims. An almost identical provision existed in Art. 1376 of the Còdigo de Comercio of Argentina. Article 470 of the Còdigo Comercial of Brazil provided instead that, in case of a voluntary sale, title in the vessel passed to the buyer except for the claims of the privileged claimants who have a tacit hypothecation on the vessel. Article 542 of the Còdigo de Comercio of Costa Rica instead simply provided that, in case of forced sale, certain maritime claims have priority in the distribution of the proceeds of sale.
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