The law of maritime liens does vary between countries but there are actually surprising similarities between the various shipping laws of different countries. Particularly when countries share a common cultural heritage, they appear to share similar admiralty or shipping law.
What is a maritime liens?
First of all, a maritime liens is different from the type of liens that exists in relation to goods held on land. They arise out of both contract and tort. It is a legal right and cannot necessarily be modified by contract. However, it is a very special and specific type of right because it can only be exercised by a court with admiralty jurisdiction and acting ‘in rem’. Obviously, the lien can be removed is the claim which it relates to is paid. There are a number of reasons why a claim of liens may be claimed which can include seaman’s wages, salvage of the ship, tort claims for collision and personal injury, ‘general average’ which is a liens over the ship against the cargo or a liens over the cargo against the ship. In many jurisdictions of the world, there may be liens governed by statute for supplies and repairs, towage, wharfage, pilotage, stevedoring and related services. In the United States, there are statutes which allow liens for cargo damage caused by improper loading, stowage and custody, Ship’s claims against cargo for unpaid freight and even marine pollution. In the United States, these types of liens are largely governed by the Maritime Lien Act was enacted by Congress in 1910.
What are some of the key cases in maritime law in Australia?
A recent famous case in Australia involving a maritime liens was Rail Equipment Leasing Pty Ltd (REL) v Baltship. The plaintiff bought six second hand locomotives and had them shipped to Newcastle, New South Wales. A house bill of lading was issued by Baltship AS (Baltship), and an ocean bill was issued to Baltship by CV Scheepvaartonderneming Emmagracht (the carrier). As the locomotives made their way to Newcastle, the two locomotives moved. At first instance, it seemed that this was because Baltship had not provided seaworthy cradles for the locomotives. The damage that resulted was to the trains and the ship. Although these problems were rectified at the cost of the carrier which later claimed over one million US dollars for the cost of the repairs, when the ship later arrived at its final destination the carrier claimed a lien.
For reasons which were not clear to Justice Rein, neither REL nor Baltship was prepared to provide security in respect of the carrier’s claim, even though the carrier offered to provide a cross security. In the end therefore, when the matter came before Justice Rein on 5 August 2008, he had before him a claim by REL, a claim by Baltship, and a claim by the carrier in rem against the six locomotives which it was holding. As well as these three sets of proceedings, it seems that the carrier, together with some associated parties, had already commenced proceedings against REL and Baltship in Holland, and that Baltship had commenced proceedings against the carrier in the United States. Justice Rein ruled that the court did have jurisdiction on the basis of s.11(2)(c) of the Carriage of Goods by Sea Act 1991 (NSW). In terms of a maritime lien, the judge was not convinced but did see cause for a contractual lien. Rein said that a tortious maritime lien is not really recognized in Australia. The decision highlights the importance of a contractual lien in a transport contract. If you have a question about a maritime lien matter, please do not hesitate to contact us as we have lawyers who are specialized in this type of work and can direct you to an appropriate specialist in our organization. Please do not hesitate to contact us if you have any queries about admiralty and shipping law.
