Lloyd's Maritime and Commercial Law Quarterly
THE MARITIME LIEN: AN OUTDATED CURIOSITY
Andrew Tettenborn*
This article traces the recent history of the maritime lien in English law, and asks how far the institution continues to be justified in the twenty-first century. It traces the rise of the parallel statutory right of ship arrest, compares it to the maritime lien, and reaches the counter-intuitive conclusion that, despite its traditional place in maritime law, the special rights attaching to the latter are difficult to justify. Its only contemporary advantage is the protection it affords some seafarers, which could be provided in other ways. Otherwise, there is a good case for simply abolishing it and leaving maritime claimants to their statutory rights of arrest.
1. Introduction
The maritime lien may look like an admiralty curiosity, but has a good deal to tell us about law more generally. For non-specialists, the maritime lien we are talking of here is a special instance of the more general right to arrest a ship for a maritime claim (itself a feature peculiar to Admiralty1). It protects four specific kinds of claim that give rise to a right of arrest—bottomry, salvage, mariners’ wages and collision damage—by giving the beneficiary a super-preference through the medium of an overriding security interest in the vessel involved.2
As a security available to claimants, the maritime lien is to say the least idiosyncratic: certainly so to a non-maritime lawyer. The institution hangs awkwardly between contract and tort. It is sometimes consensual, arising from an agreement—for example, in the case of wages, and also most cases of salvage.3 But it does not need to be: the underlying security interest can equally well be engendered by a tort (as in the case of the collision lien) or out of an unjust enrichment claim (as with non-contractual salvage). Once attached, it is secret and indeed unregistrable. Despite this, it nevertheless binds the vessel even in
* Professor of Commercial Law, Institute of International Shipping and Trade Law, Swansea University.
1. There is no equivalent process in respect of other property, or of land vehicles or aircraft, save in the case of the latter for claims for salvage, towage or pilotage when they are in, on or over water. See Senior Courts Act 1981, s.20(2)(j)–(l)) and A Tettenborn and FD Rose, Admiralty Claims (London, 2020), [4.012].
2. And on occasion in certain other assets, such as cargo and freight. But we will not be discussing these further.
3. Salvage claims can be brought in the absence of agreement (for instance, where a vessel is simply found abandoned and rescued) and indeed on occasion against the will of her owner, if the latter refuses such services wholly unreasonably: see The Auguste Legembre [1902] P 123, 128–129 and now the International Convention on Salvage 1989 (the Salvage Convention 1989), Art.19, incorporated into English law by the Merchant Shipping Act 1995, s.224.
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