Maritime Law and Convention.
1.
Concept of Law and
Contract Act: Concept of Law-Civil, Criminal Law, Statute Law, Admiralty court,
Corner’s court, Juries, Public Law, Private Law, Public and Private
International Law; Understanding of Plaintiffs, Respondent, Summons,
Affidavits, Arbitration.
2. Bangladesh Contract Act with reference to
following: Agreement, Offer and Acceptance, consideration, consent, capacity to
contract, valid void and voidable c
ontracts, quasi
contract, breach of contract, remedies for breach, discharge of contract,
agency bailment, FOB & CIF contract, Invoice and consular Invoice, Letter
of Credit, Bill of Lading, Bills of exchange, Way bill, Charter Parties.
3. Scope of Maritime Law: Sources, Subjects and
objects. Continental Shelf, Exclusive Economic Zone, Sea Bed, Admiralty
Jurisdiction, innocent passage, International aspects of Registration Ship
building contracts and mortgage. Nationality of ships, flags
of convenience and flag Discrimination.
4. Knowledge about classification, Recognized classification societies,
character symbols of classification.
5. Knowledge about Tonnage, Weight Tonnage class, Measurement Tonnage class,
Tonnage Mark.
6. Maritime Lien, Possessory Lien, Freight, General Average.
7. Marine Insurance and Marine Losses; Total Loss
and Partial Loss, Constructive total Loss, Particular average loss, General
Average Loss, General Average Sacrifice, General Average Expenditure.
8. Knowledge on Marine Fisheries Ordinance 1983, Marine Fisheries Rules of
Bangladesh.
9. Knowledge on Fish & Fish Products
(Inspection & Quality) control ordinance of Bangladesh with special
reference to HACCP (Hazard Analysis Control Critical Point) for quality control
on board the fishing vessel.
10. Bangladesh Merchant Shipping Ordinance 1983 in general with special
reference to;
I. Definitions
II. Registration of Ships
III. Shipping Master
IV. Fishing Vessel
V. Function of POMMD
VI. Seamen & Apprentices
VII. Limitation and Liability
VIII. Investigation and Inquiries, etc.
11. Primary knowledge on the role of UN organizations like IMO, ILO, FAO
over fishing vessel operation and Maritime business.
12. Simple knowledge on ILO conventions related
to Fishing Vessel and Fisherman (ILO Work in Fishing Convention 2007), and
Torremolinos Protocol, 1993, SOLAS, STCW- 95 (as amended in 2010), STCW-F-95,
MARPOL 73/78.
13. Maritime Declaration of health and requirements of international health
regulation.
14. Knowledge about Food law, safety of food,
Composition of food, Understanding about Codex, Standard documents of Codex,
Specialist Committees of Codex Commission.
15. Knowledge on the chapters on Fishing and
Fisheries as covered in the UN convention on the Law of the Sea (UNCLOS),1982 with
special reference to Territorial water, Exclusive Economic Zone, Continental
Shelf, Coastal state, landlocked state.
Maritime Law &
Convention
Lecture
conducted by Capt.Md.Mazharul Islam,
B.Sc.Nautical,LLB,MBA,FVS,DOC-3;
Instructor(Navigation),
Marine
Fisheries Academy,Chittagong,
contact:cptmazhar@yahoo.com
Concept of Law and Contract Act:
Concept of Law-Civil, Criminal Law, Statute Law, Admiralty court, Corner’s court, Juries, Public Law,
Private Law, Public
and Private International Law; Understanding of
Plaintiffs, Respondent, Summons, Affidavits, Arbitration.
Concept of Law: The law is a set of rules which we
should obey. “The law is a body of rules which govern human conduct, is
recognized by people and enforced by the State”
Set of rules, so we must obey the law. It regulates behavior of legal
subjects: persons (natural and juridical)
Law is enforced by the State –sanctions exist (punitive
action or penalties) which are attached to the law and are warranted when the
law is broken and are then enforced by the State
“legal right” -An
interest conferred and protected by the law, entitling one person to claim that
another person give something, perform an act or refrain from performing an
act.
Contract
:
An oral or written agreement between parties in which the parties make mutual
promises to each other. The parties must be at least 18 years of age, and be
mentally capable of entering into such an agreement.
Contract Act: The Contract Act, 1872 is the chief contract
law in Bangladesh. Based on English contract law and the British Indian contract law, it was enacted in the 19th century and
re-enacted by the parliament of
Bangladesh after the country's independence. It includes chapters on offer and acceptance, voidable contracts, contingent contracts,
performance, breach of contract, contractual relations, the sale of goods,
bailment, agency and partnership. It also covers topics such as consideration, misrepresentation and indemnity.
Concept of
Law-Civil: Civil law refers to
1. Is concerned with protecting the
rights and property of individuals that are not necessarily protected by
criminal laws.
2. Is usually initiated by an aggrieved
party (such as the plaintiff), who takes legal action against those who they
claim to have wronged them.
3. Is sometimes concerned with
commercial or contractual disputes, such as unpaid monies, an unfulfilled
contract or a breach of promise.
4. Is sometimes concerned with
resolving family disputes, such as marital break-ups, divorce settlements,
child custody arrangements and child maintenance.
5. Is sometimes concerned with
examining personal suffering, such as psychological harm or loss of reputation,
to find out if someone is liable and whether they should make restitution.
Concept of Criminal Law: Criminal law refers to:
1. Laws that are defined by legislation,
enforced by the police and prosecuted by the state.
2. Laws that set clear and firm
boundaries of conduct for individual behaviour in a society.
3. Laws with a strong range of
sanctions or punishments, ranging from fines to imprisonment and, in some societies,
execution.
4. Laws that deal with offences against
the person, such as murder, attempted murder, assault and sexual assault.
5. Laws that deal with offences against
property, such as theft, fraud, arson and vandalism.
6. Laws that deal with offences against
public morality, such as prostitution, child pornography, bigamy and indecent
exposure.
Statute Law: A law passed by the provincial or
federal legislature. Acts are also referred to as ‘statutes'.
Admiralty court: Any court that has jurisdiction over maritime
law. This jurisdiction
covers criminal and
civil law, torts,
and many other
things. In the United
Kingdom, admiralty courts sit very rarely. In the United
States, ordinary federal
district courts are
considered admiralty courts when the dispute involves maritime
law.
Corner’s court: A coroner is a person whose standard role is to confirm and
certify the death of an individual within a jurisdiction. A coroner may also conduct or order an inquest into the manner or cause of death, and investigate or confirm the identity of
an unknown person who has been found dead within the coroner's jurisdiction.
Juries: A group of people who have been chosen to listen to all the facts in a trial in a law court and to decide if a person is guilty or not guilty, or if a claim has been proved.
Public Law: law
which deals with issues that affect the general public or state - society as a
whole. Some of the laws that its wide scope covers are:
- Administrative law - laws that govern government agencies, like the
Department of Education and the Equal Employment Opportunity Commission
- Constitutional laws are laws that protect citizens' rights as afforded in
the Constitution
- Criminal laws are laws that relate to crime
- Municipal laws are ordinances, regulations and by-laws that govern a
city or town
- International laws are laws that oversee relations between nations
- Private Law:
Private
law
affects the rights and obligations of individuals, families, businesses
and small groups and exists to assist citizens in disputes that involve
private matters. Some of the laws that its wide scope covers are;
- Contract law,
- Family law,
- tort law etc.
International Law: International law is a system of
treaties and agreements between nations that governs how nations interact with
other nations, citizens of other nations, and businesses of other nations.
International law typically falls into two different categories. "Private
international law" deals with controversies between private entities, such
as people or corporations, which have a significant relationship to more than
one nation. For example, lawsuits arising
from the toxic gas leak in Bhopal, India from industrial plants owned by Union Carbide, a U.S.
corporation would be considered a matter of private international law.
"Public
international law" concerns the relationships between nations. These
include standards of international behavior, the laws of the sea, economic law,
diplomatic law, environmental law, human rights law, and humanitarian law. Some
principles of public international law are written, or "codified" in
a series of treaties, but others are not written down anywhere. These are known
as "customary" laws, and nations consent to them by doing nothing.
Plaintiffs: A plaintiff is the party
who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal
remedy; if this search is
successful, the court will issue judgment in favor of the plaintiff and make the appropriate
court
order (e.g., an order
for damages).
Respondent: The respondent is the party against whom a petition is filed,
especially one on appeal. The respondent can be either the plaintiff or the defendant from the court below, as either party can
appeal the decision thereby making themselves the petitioner and their
adversary the respondent.
Summons: A summons is an order by a court
requiring someone to appear in court. In civil
lawsuits, a summons is
issued to one of the parties in the lawsuit, usually the person against whom a
complaint has been filed. Most often, a summons is given to a defendant, requiring
his or her presence to defend a case.
Affidavits: A written statement that someone makes after promising officially to tell the truth. An affidavit can be used as proof in a law court.
Arbitration: Arbitration is
a non-judicial process for the settlement of disputes where an independent
third party - an arbitrator - makes a decision that is binding.
Maritime
Law & Convention
Lecture conducted by Capt.Md.Mazharul Islam,B.Sc.Nautical,LL.B,MBA;Instructor(Navigation),
Marine Fisheries Academy,Chittagong;Bangladesh
contact:cptmazhar@yahoo.com
Concept of Law and Contract Act: Concept of
Law-Civil, Criminal Law, Statute Law, Admiralty court, Corner’s court, Juries,
Public Law, Private Law, Public and Private International Law; Understanding of
Plaintiffs, Respondent, Summons, Affidavits, Arbitration.
Maritime law:
Maritime
law, also known as admiralty law, is a body of laws, conventions, and treaties
that govern private maritime business and other nautical matters, such as shipping
or offenses occurring on open water. International rules, governing the use of
the oceans and seas, are known as the Law of the Sea.
Admiralty :
Traditionally
'admiralty law' referred only to contractual and tortious disputes arising from
the operations of ships (named after the typical work of the Admiralty Court in
England). It would not, for instance, cover governmental or international
shipping regulations. However, the description has become more loosely
used over time and today it is interchangeable with 'Maritime Law' as a term
describing all law related to ships.
Boating Law:
This
is a US term, which essentially means the same as 'admiralty law', although it
is often used to describe smaller level admiralty law (yacht fees, radio
requirements etc.).
Carriage of Goods Law - This specifically relates to the law of moving
cargo. It is not restricted to marine cargo (unless referred to as 'Carriage of
Goods by Sea Law') and will cover goods being moved by sea, road, rail, air and
multimodal (by more than one means).
Law of the Sea - This is an area of public international law (deals with
relationships between countries, rather than private people or companies). It
provides rules on sea borders, pollution, ownership of natural resources at sea
etc. The United Nations Convention on the Law of the Sea (UNCLOS) provides much
of the law in this area.
Marine Law :
This is perhaps the most broad of the terms and
encompasses all law related to the sea or waterways. It would cover
international agreements on sea borders, laws on fishing quotas and the law
governing transport of goods or the operation of ships (i.e. it is a catch-all
term for Law of the Sea and Maritime Law).
Shipping Law:
This is perhaps the best term to describe the law
relating to ships. Shipping law covers the building and operation of ships and
is split into two categories: wet and dry. 'Wet' shipping law involves
things happening on water, like ships sinking, colliding with other ships or
objects and other casualties at sea. 'Dry' shipping law refers
to things happening on paper like disputes about charterparty clauses or
shipbuilding contracts. Many lawyers who deal with wet shipping matters
only consider that dry shipping disputes can be boring as they are not linked
to any real wolrd event.
Trade Law :
This refers to the law of
trade between countries and the international conventions governing that trade.
It is only loosely related to ships, via international conventions like
UNCITRAL (United Nations Convention for International TRAde Law).
Transport Law:
This is a catch-all term for the laws covering all types
of transport, including sea, road, rail and air transport. It may proscribe
something like that a certain product must be carried by sea, and not
by air.
A diagram laying out the main distinctions
above:
UNCLOS:
UNCLOS is an
acronym for the United Nations Convention for the Law of the Sea. The
convention is also sometimes referred to as the Law of the Sea Convention or
the Law of the Sea treaty. UNCLOS, as a law of the sea came into operation and
became effective from 16th November 1982.
However, the first time such a
proposal was announced before the United Nations was in the year 1973. Over the
course of nine years, with representations from over 160 countries coming
forward, UNCLOS came into existence. The background of UNCLOS covers can be
explained in detail as follows:
UNCLOS BACKGROUND:
Before
the nautical law of UNCLOS came into force, there existed a school of thought
known as freedom-of-the-seas. This doctrine had first come into operation
during the 17th century. As per this law, there were no limits or
boundaries set to the aspect of marine business and commercial activities.
Over the years and centuries as
technology developed and the needs of the people across the world grew, there
emerged a problem. Over-exploitation of the sea’s resources was immensely felt
towards the middle of the 20th century and many nations started
feeling the need to ensure protection of their marine resources.
Starting with United States in
the 1945, many countries across the world brought under their jurisdiction, the
natural resources found in their oceans’ continental shelf. Some of the
countries that exercised this power were Argentina, Canada, Indonesia, Chile,
Peru, Ecuador and even countries like Saudi Arabia, Egypt, Ethiopia and
Venezuela.
Since the usage of the marine reserves rose even more in the 1960s and since
missile launch pads also starting getting based in the oceanic bed, it became
imperative that a specific regulation be placed to ensure proper protection and
jurisdiction of the marine reserves. In 1967, the Third United Nations Conference on the
Law of the Sea was convened. In this conference, the UN ambassador from Malta
Mr. Arvid Pardo requested for a legal power that could bring about
international governance over the oceanic floor and bed. Such a legal power
would also ensure that there would not be any problems arising between various
countries over the oceanic floor and bed space.
In a major way, it was this UNCLOS III that paved the way for the now
existing nautical law.
The features and the highlights of the same can be explained as follows:
1. UNCLOS as the currently
prevailing law of the sea is binding completely.
2. Even as the name of the
nautical law suggests a United Nations’ involvement, the UN does not have any
major functional role in the working of UNCLOS
3. There are 17 parts, 320
articles and nine annexes to UNCLOS
4. The law of the sea provides
for full money rights to nations for a 200-mile zone by their shoreline. The
sea and oceanic bed extending this area is regarded to be Exclusive Economic
Zone (EEZ) and any country can use these waters for their economic utilisation
5. The IMO (International Maritime Organisation) plays a vital role in the
operation of UNCLOS. Along with the IMO, organisations like the International Whaling Commission
and the International Seabed Authority are vital parties in the functional
areas of the nautical law Even
though UNCLOS has 160 member parties, the US is a country that has still not
sanctioned (ratified) the nautical law. The main reason for the US not
sanctioning the law of the sea arises mainly because of its disagreement about
Part XI of UNCLOS.
This
part deals with the aspect of the minerals found on the seabed on the EEZ. The
International Seabed Authority was established on the basis of this part of the
nautical law and called for equitable distribution of the proceeds of such
seabeds. The US is opposed to this theory and that is why it has not ratified
UNCLOS in spite of it being one of the most important members of the United
Nations.
With the help of a nautical law like UNCLOS,
it can be said that marine resources can be protected and safeguarded,
especially in contemporary times where the need for marine resources’
protection has increased even more than it was during the 1960s and 70s.
However, as per this law, a specific boundary or
limit has been provided to each country to define the aspect of marine business
and commercial activities, including all kinds of jurisdictions.
There
are 5 important terms which each mariner should know under UNCLOS. They are:
1.
Territorial sea
2.
Contagious zone
3.
Exclusive economic zone
4.
Continental shelf
5.
High Sea
Territorial sea:
According to UNCLOS, the territorial sea
can be defined as the area which extends up to 12 nautical miles from the
baseline of a country’s coastal state. The territorial sea is under the
jurisdiction of that particular country; however, foreign ships (both merchant and
military) ships are allowed passage through it.
This
type of passage of territorial passage of foreign ships is known as innocent
passage. However, the right to innocent passage can be suspended if there is a
threat to the security of the coastal state.
The
coastal state can also exercise jurisdiction if
1. Any
kind of activities in the territorial vessel has consequences extending to the
coastal state
2. There
is a threat to the peace of the coastal country
3. There
is illicit traffic or smuggling of drug
Contiguous Zone:
Contiguous
zone can be defined as the belt which extends 12 nautical miles beyond the
territorial sea limit.
A
coastal state’s control on this area is limited to prevention of actions which
can infringe its customs, fiscal, and immigration laws. It can also act if any
activity in the contiguous zone threatens regulations in the territorial sea.
It
is possible that vessels carrying noxious dangerous substances or waste may be
turned away on public health or environmental grounds.
Exclusive economic zone:
Exclusive economic zone can be defined
as a belt of water which extends up to 200 nautical miles from the baseline of
the coastal state. Thus it includes both territorial sea and contiguous zone.
The
exclusive economic zone provides the coastal state control over all economic
resources such as fishing, mining, oil exploration, and marine research.
The
coastal state also has jurisdiction regarding protection and preservation of
natural resources and marine environment.
Continental Shelf:
The continental shelf can be defined as
the area whose outer limit shall not exceed 350 nautical miles from the
baseline or shall not exceed 100 nautical miles from the 2500 meters isobath.
The
coastal state has exclusive rights for exploring and exploiting its natural
resources in this area. The state also has the exclusive rights to authorize
and regulation drilling on the shelf for all purposes.
High Seas:
High
seas can be defined as the part of the sea that is not included in the
exclusive economic zone, in the territorial sea, or in the internal waters of a
coastal state or archipelagic waters of an archipelagic state.
High
seas are open to all states for freedom of navigation, freedom of over flight,
freedom to construct artificial islands installation, freedom of fishing, and
freedom of scientific research.
High
seas are reserved for peaceful navigation through international waters.
However, regulations have been made to avoid prevention of slave trade, piracy,
seizure of ships, illicit narcotics trafficking and unauthorized broadcasting.
Master, Captain or Skipper
(http://www.theshippinglawblog.com/2010/07/q-what-is-difference-between-master.html)
All three of
these terms refer to the person in ultimate charge of a vessel. Every person in overall command of a vessel is the Captain
of that vessel; although on some, usually large, commercial, sea-going vessels
they will be referred to as the Master. They will typically be a licensed
Master Mariner.
A Master Mariner (MM) is someone who
has an unrestricted Captain’s or Master’s license, usually from the flag state
in which the vessel is registered; meaning they are allowed to be in
overall charge of almost any size or power of vessel, anywhere in the world.
The often heard term Skipper is of course just a
nickname for the Captain. It tends to be used to refer to the Captain of a
smaller boat or yacht, or in say fishing vessels, where the Captain is often a
friend or relative of the crewmembers, as well as their boss. In most of the
world's English-Speaking Naval Forces the person in overall charge of the
vessel is the CO or Commanding Officer, but when aboard he too will generally
be referred to as Captain.
In short, if you are unsure how to refer to the person in charge of a
particular vessel it is safest to refer to them as the Captain.
Difference Between a Port, Quay, Pier and
Wharf:
These terms are sometimes used interchangeably,
but there are differences between each which it is useful to remember.
A Port is generally a
description of a place on the coast which has facilities for boats or ships to
call into, and usually a village or town attached. Normally these places
developed because the natural features at that particular part of the coastline
(a break in the high cliffs, an area of deepwater where the coast is rocky
etc.). Because a port is a description of a type of function, ports can look
very different from one another and a port may contain all of the
things listed below (wharfs, quays, piers etc.). Porto Cervo, in
Italy, is a good example.
A Wharf is a man-made
structure on a river or by the sea, which provides an area for ships to safely
dock. Some are very intricate, with multiple types of berth over a large area,
and navigable channels, and others (like this one, below, from Australia) are
more straightforward. A Wharf can contain quays and piers and will normally
have buildings within it to service the ships (often warehouses and offices).
Because of their abundance of unusual buildings and ready-made water features,
unused wharfs are often converted into expensive retail and housing areas (for
instance Canary Wharf and Butler's Wharf in London).
A Quay is, technically, a
part of the river bank or coastline which has been modified so ships can dock
at it parallel to the shore. This boat is moored at the quay in
Poole, England.
A Pier is a, normally wooden,
structure which protrudes from the shore at a level above the water level,
allowing ships to disembark passengers in the deeper water further out. The
length of the pier may also provide berths for smaller boats.
A
jetty is a structure extending perpendicularly, or
approximately so, from shore. Unlike a pier, it is a solid wall down to the
water bed. Therefore, also unlike a pier, it obstructs the flow of currents,
and this may be its chief purpose. A large jetty built to create an artificial
harbor is called a "mole." A jetty intended to encourage the buildup
of sand into a beach is called a "groin." Jetties in pairs often
flank either side of a river as it enters the sea or lake, to prevent silting
at the mouth.
All these terms refer to a vessel
which is secured in a more or less fixed position.
When a vessel is in port
to collect/disembark passengers or load/discharge cargo it will be,
in a sense, connected to the dock (the functional area of pier) and
is therefore 'docked'. A docked ship is typically a large one and will
have several crew present on it, even when it is there overnight. Generally a
ship is docked for a specific purpose, and when that task is complete the
vessel will move on.
A berth, on the other hand, is a bit like the
nautical equivalent of a parking space. Typically you buy one or
lease one for a long period as somewhere to store your boat. To maximise space,
'berthed' vessels are typically kept perpendicular to
(pointed at) the main jetty or pier, rather than a docked ship which is
typically parallel to (in line with) the dock.
Any ship which is secured by ropes to a
permanent fixture is 'moored' to that fixture. So 'moored' can be quite
a broad description, although it is most appropriately used to described a
vessel which is being kept at 'moorings'. Moorings are areas of water
where boats and yachts can be secured to a fixed object on the
seabed, usually a large concrete block with a rope attached and a buoy on the
end. They are cheaper than berths to rent and are more secure (people cannot
simply walk up to your boat). They tend to be used for the storage of boats or
yachts when not in use, so moored vessels tend to have no one on board.
The most independent way to secure a vessel
is to drop anchor. So long as the anchor has a certain amount of purchase on
the seabed the ship will not move too far from its current location and is
therefore described as being 'anchored'. This is the most independent but also the
least secure way to station your boat, and as such a ship which is anchored is
usually only staying in place for a short time and will almost always have
someone on board.
Maritime Law & Convention
Lecture conducted by Capt.Md.Mazharul Islam,
B.Sc.Nautical,LL.B,MBA;Instructor(Navigation),
Marine Fisheries Academy,Chittagong;Bangladesh
contact:cptmazhar@yahoo.com
Maritime Lien, Possessory Lien,
Freight, General Average.
Lien
A lien
is a legal right to claim a security interest in a property provided by the
owner of the property to the creditor. It is generally used as a guarantee for
some sort of legal obligation such as loan repayment. In other words, lien
ensures that a creditor obtains the right on the property if a borrower fails
to meet his legal and/or financial obligations. The grantor (the owner of the
property) is called the lienee while the party that receives the lien is
referred to as the lienor or lien holder.
Property taxes, judgments,
association fees, money owed to contractors: all these can become liens until
they are paid
Types of Liens
1.
Consensual
Consensual
liens are created by contractual obligations between the concerned parties. The
most common examples are loans obtained to purchase real estate or
personal property (chattel). They can be mortgages or
auto loans.
2.
Non-consensual
Non-consensual
liens arise from statutory or by the operation of common law. The most notable
example is tax lien, which is imposed by law against the property of a
taxpayer. If a taxpayer fails to pay the taxes owed to the government, the tax
agency can seize his or her real or personal
property on the amount of the lien.
Example
of Lien
Mr.Kamal
wants to purchase a new house. In order to afford the purchase, he borrows BDT300,000
from ABC Bank. The bank wants to guarantee the repayment of the loan, and it
requires Mr.Kamal to provide the house as the collateral for the loan.
The
bank files the documents with the government agency required to register the
lien. Upon the completion of the process, the bank becomes the holder of the
collateral provided by Mr.Kamal (in this case, Mr.Kamal’s house).
If Mr.Kamal
is unable to meet his financial obligations according to the mortgage agreement
with ABC Bank, the bank will take possession of the property and will be able
to sell it to satisfy the obligations.
Possessory Lien
A possessory lien occurs when the lender retains
physical possession of the underlying collateral during the term of the loan or
agreement. The lender has the legal right to retain the collateral until the
obligation is retired or other conditions are satisfied. Once the terms of the
agreement are met, the debtor can take possession of the asset.
Possessory liens may also be held by entities other than
traditional lenders such as the government for tax payments. A pawnbroker is a common example of an instance
where a possessory lien is part of the transaction. An individual may give
personal jewelry to a pawnbroker in exchange for a loan. While still owned by
the borrower, the jewelry acts as collateral and remains in the possession of
the pawnbroker until the loan has been successfully repaid.
Another
type of possessory lien is a garagemen's lien. In this case, a private property
owner who rents the space out as a garage can take possession of a vehicle if
the owner hasn't paid for a specified period of time. Towing companies also
hold informal possessory liens. Once a vehicle is towed, the company can hold
it until the owner claims and pays to have it released.
Nonpossessory Lien
Nonpossessory liens are much more common for consumers in
the United States. These liens allow the borrower the right to retain
possession of the collateral securing a loan or obligation. While the debtor has physical
possession of the asset, the lender's name appears on the title for the
collateral. If the borrower doesn't fulfill their financial obligation and
defaults, the lender can take possession of the security.
Liens
are attached to a piece of property—not to the lender or borrower.
|
Maritime Lien
Both maritime lien and ship mortgage are security rights over
things (e.g. ships, fright and cargo), though the former is created by law.
Mortgage is created by a written contract which must be registered before
it takes effect.
A maritime lien is a secured right peculiar to maritime law. A
lien is a charge on property for the payment of a debt, and a maritime lien is
a special property right in a vessel given to a creditor by law as security for
a debt or claim arising from some service rendered to the ship to facilitate
her use in navigation or from an injury caused by the vessel in navigable
waters
Maritime lien is a right which can be executed only by judicial
process. It is not self-executing. In order to satisfaction of Claimants claim,
he has to bring a lawsuit before a court. The court may then arrest and
subsequently sell the arrested ship to enforce the maritime lien when the owner
of the ship concerned refuses to furnish sufficient bail or other dependable
security. Thus, a maritime lien is not actually a lien (i.e. a right of
detention) in the sense of either the Common Law or
Mortgage
A mortgage is one of the most common types of loans that use
nonpossessory liens. When the lender approves a mortgage, the borrower can take
possession of the home or property after the real estate deal closes. Although
the homeowner possesses and lives in the home—or rents it out in the case of an
investment property—the lender remains a lienholder until the loan is paid in
full. If the borrower defaults, the bank can begin foreclosure proceedings, evict the resident(s), and repossess the
property.
n encumbrance is a claim or other type of issue that restrains or burdens
your full ownership rights to a property. It is a broad term and can reflect
either a monetary-related issue such as a loan or a non-monetary claim related
to the property.
Encumbrances
An encumbrance is a right to, interest in, or legal liability on property that does not prohibit passing title to the property but that may diminish its value. Encumbrances can be
classified in several ways. They may be financial (for example, liens)
or non-financial (for example, easements, private restrictions). Alternatively, they may be
divided into those that affect title (for example, lien, legal or equitable
charge) or those that affect the use or physical condition of the encumbered
property (for example, restrictions, easements, encroachments).Encumbrances
include security
interests, liens, servitudes (for example, easements, way leaves, real covenants, profits
a prendre), leases, restrictions, encroachments, and air and subsurface rights. Also,
those considered as potentially making the title defeasible are encumbrances,
for example, charging
orders, building orders
and structure alteration. Encumbrance: charge upon or claim against
land arising out of private grant or a contract.
Examples of encumbrances are:
1.
Easements.
2.
Encroachments.
3.
Unpaid real property taxes.
4.
Tax liens.
5.
Mechanic's liens.
6.
Leases.
7.
Air rights.
8.
Water, timber, or mineral rights.
Maritime Lien
Persons Who May Acquire Maritime Liens:
The owner, part owner, or agent of a vessel may not acquire a lien
against the vessel. However; a joint venture may acquire a lien for
necessaries. A stockholder in a vessel also may acquire a lien, but must
overcome a presumption that any advances were made on general credit. If the
presumption is overcome, a lien may exist as long as it does not unfairly
prejudice other creditors. Maritime liens are assignable; the assignee
ordinarily assumes the rank of the assignor in determining lien priority.
additionally, a person who advances funds for the purpose of discharging a
maritime lien succeeds to the lien status of the former lien holder.[v]
Characteristics and factors relating to Maritime Lien:
A traditional maritime
lien is a secured right in the"res",i.e.,in the property of another
(ordinarily the ship),which arises with the claim,without registration or other
formalities; it travels with the vessel even if it is sold to third party;
which remains with the vessel until it is enforced by an action in rem: and
which, when so enforced, gives the owner of the lien the claim priority in
ranking over most other claims, notably ship mortgages. In U.K.and commonwealth
countries, the term"maritime lien" applies only to limited maritime
claims, being seamen's wages, master's wages, master’s disbursements, salvage, damage
(caused by the ship), bottomry and respondentia. These are known as
“traditional maritime liens". other maritime claims resulting from
services supplied to the ship or damages one by the ship, notably claims for
“necessaries" provided to the vessel (e.g.bunkers, supplies, repairs, and towage),
as well as claims for cargo damage, for breaches of charter party and for
contributions of the ship in general average, do notgiveriseto
"traditional maritime liens "in but only lo "statutory rights in
rem"subject to fulfillment of certain conditions.
Maritime
Liens are strictly construed by the Admiralty Courts to protect innocent
purchasers and creditors. A number of rules must be respected which may not
seem logical to the ordinary businessman.
1. The claim must be against a ship,
boat or vessel which must be “in navigation”. A vessel that has been
permanently removed from navigation is not subject to a lien. This would be a
vessel, on land which no intention of being repaired or launched. A vessel
temporarily dry docked for repairs or storage may still be subject to a lien.
2. New vessels under
construction are not subject to maritime liens based on the theory that they
have never been in navigation.
3. The vessel must be
under the lawful control of the person ordering supplies or creating a
situation that may give rise to a lien. If a thief or pirate who illegally has
control of the vessel
creates a situation
which ordinarily would give rise to a lien, the lien will not apply.
4. The person claiming
the lien may NOT have any direct ownership interest in the vessel. This
includes partners and joint venturers.
5. The person claiming the lien may NOT
be in possession of the vessel. At page 15 we discuss the status of shipyards
and repair facilities.
DEBTS ARE ELIGIBLE TO BE FILED:
By
far the most common lien is for what are generally called “Necessaries”.
Necessaries are things that are required for the ship for the voyage. This will
include such things as:
a. repairs
b. pilotage
c. provisions for the
crew
d. provisions for the
passengers
e. food and liquor for
passengers on a yacht
f. dockage and wharfage
g. towage
h. advertising
i. uniforms
j. cigarettes
k. surveyor’s services
l. transportation for crew members
m. preparation of documentation for the vessel
n. insurance premiums
1. Crew wages include wages to the captain or master of the
vessel.
This may also include Longshoremen employed by the ship.
2. Salvage claims against the vessel.
3. Tort liens for personal injury or death.
4. Miscellaneous other claims including taxes, penalties for
forfeiture for violation of Federal Law.
Priorities of Liens:
liens
are paid subject to a variety of rules, if they are paid by order of a
Admiralty Court. The general priority of claims or liens is as follows from
first to last priority:
1. Expenses of justice (If a lawsuit has
been filed and the vessel seized. This will include all the expenses of the
ship while under the Marshal’s control.)
2. Seamen’s wages and
money due for maintenance and cure.
3. Salvage claims
against the vessel.
4. Tort liens for
accidents resulting in injury or death relating to the vessel.
5. Pre-mortgage liens
for necessaries. (Goods and services provided before a mortgage was filed
against the vessel.)
6. Preferred Ship’s
Mortgages
7. Liens for
necessaries filed after a mortgage was already on file.
8. State created liens
9. Liens for Penalties
under law.
10. Preferred
non-maritime liens including tax liens.
WHO MAY
FILE A MARITIME LIEN?
Anyone may file or claim a lien if you
or your company sells and delivers goods or services at the request of any
person lawfully in possession of the yacht or ship, or its owner or agent.
A subcontractor working at the request
of a shipyard may not be entitled to a lien unless the shipyard as general
contractor had authority to bind the vessel. Ordinarily, a shipyard contract
for repair should entitle the shipyard to act as the owner’s agent for
subcontracting work. If you are a subcontractor, you should discuss this with
the shipyard or general contractor before work begins.
Another issue that may arise is whether
the goods or supplies sold were delivered to the ship or yacht. Your invoice
should always have the name of the vessel as well as the name of the owner.
When the equipment or goods are delivered to someone else for delivery to the
yacht or ship, you may not be
entitled to a lien. Delivery to the vessel is of paramount importance.
Direct dealing with the owner, the captain or someone in charge of
the vessel is a pre-requisite to being entitled to a lien. If the vessel is
under a charter or mortgage that prohibits the incurring of liens by the
captain or owner, he must inform you prior to the time that you provide your
goods or service. In that case you should deal only in a “cash and carry” basis
with the vessel.
WHO CANNOT FILE A LIEN?
1. The owner
2. A part owner
3. Joint venturer in ownership
4. Anyone in a fiduciary relationship to the owner
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