MARITIME LIEN IN INDIA

by Sahibnoor Singh Sidhu, B.A. LL.B. (Hons.) 2016-21, O.P. Jindal Global University, Delhi NCR, India


INTRODUCTION

Maritime Lien refers to the concept of admiralty law wherein the rights that survive the sale of the ship and also are ahead in priority from registered mortgages against the vessel are provided to the plaintiff. This lien can also be created by a charterer or a manager of the vessel. The basis of this extremely peculiar doctrine is that the vessel in itself is a legal entity and enters into certain obligations and the breach of the same would lead to the affected person having the right to apply for a maritime lien. Maritime lien doesn’t arise when the dispute arises but only subsequent to the application for the same to a competent court.


A maritime lien is a privileged claim upon a maritime res or property in respect of services done to or injury caused by it.[1] The maritime res can be the ship, its cargo, apparel, furniture, tackle or freight. Even while maritime lien has been a part of law for a very long time, almost coinciding with the advent of maritime trade and law, it is not uniform in jurisdictions around the world.

In this blog, we shall look at the way various national legislations address this issue. For this purpose, we shall look at the definition and existing international norms that are applicable when a maritime lien arises. A comparative analysis of the provisions relating to the same in India, United Kingdom and the United States of America will be made. The aim behind this paper is to highlight how this regularly used concept of law has a different meaning across the world. Special emphasis shall also be laid on what and how can India do better to ensure that it matches or surpasses the international standards of maritime lien claims.

  1. MARITIME LIEN IN INTERNATIONAL LAW

The International Convention on Maritime Liens and Mortgages[2] was signed in 1993 in Geneva under the aegis of the International Maritime Organisation of the United Nations. This conference saw the participation of representatives from sixty-six nation states and ten non-governmental organisations as observers. Article 4(1) of the convention mentions the following grounds for the claim of maritime lien:

  1. Claims for wages and other sums due to the master, officers and other members of the vessel’s complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf;

  2. Claims in respect of loss of life or personal injury occurring whether on land or on water in direct connection with the operation of the vessel;

  3. Claims for reward for the salvage of the vessel;

  4. Claims for port, canal and other waterway dues and pilotage dues;

  5. Claims arising out of physical loss or damage caused by the operation of the vessel other than loss of or damage to cargo, containers and passenger’s effects carried on the vessel.

The same Article also provides for two exceptions from the claim of maritime lien under sub-clauses (b) and (e) of Article 4(1) which is pretty clear and evident on its own in the language of the convention:

  1. damage in connection with the carriage of oil or other hazardous or noxious substances by sea for which compensation is payable to the claimants pursuant to international conventions or national law providing for strict liability and compulsory insurance or other means of securing the claims; or

  2. the radioactive properties or a combination of radioactive properties with toxic, explosive or other hazardous properties of nuclear fuel or of radioactive products or waste.

Article 6 of the Convention also provides the power to state parties to incorporate in their domestic laws, additional grounds for maritime lien as long as the same are valid as per Articles 8, 10 and 12 of the Convention.[3]


2. MARITIME LIEN IN INDIA

The situation of Maritime Lien in India has been far from satisfactory or even holistic. Up until the recent Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017,[4] India was still following colonial era laws for admiralty matters. The Act repealed laws such as the Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890. Section 2(g) of the Act defines what is meant by maritime lien, ‘“maritime lien” means a maritime claim against the owner, demise charterer, manager or operator of the vessel referred to in clauses (a) to (e) of sub-section (1) of section 9, which shall continue to exist under sub-section (2) of that section.’ It is interesting to note that this definition is exactly same as that in the International Convention on Maritime Lien and Mortgages, 1993. It seems that India is closely following and implementing the international standards on maritime liens.

Section 9 lays down the various grounds on which maritime lien can be claimed for by the people mentioned in Section 2(g) of the same Act.

9(1) Every maritime lien shall have the following order of inter se priority, namely:

  1. claims for wages and other sums due to the master, officers and other members of the vessel’s complement in respect of their employment on the vessel, including costs of repatriation and social insurance contributions payable on their behalf;

  2. claims in respect of loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the vessel;

  3. claims for reward for salvage services including special compensation relating thereto;

  4. claims for port, canal, and other waterway dues and pilotage dues and any other statutory dues related to the vessel;

  5. claims based on tort arising out of loss or damage caused by the operation of the vessel other than loss or damage to cargo and containers carried on the vessel.

By a plain reading of the section, it is clear that while it follows the claims as given in the convention, the scope in the Indian context is broader than that in the international standard. Section 9(1) is analogical to Article 4(1) of the convention. The first difference is that the claims of maritime lien in the convention have no order whereas a priority order for the same has been added in Section 9(1). Secondly, Section 9(1)(c) goes a step further from the convention and adds special compensation for salvage services which is missing in the convention. Section 9(1)(d) adds statutory dues of the vessel to the list of payments that need to be made under Article 4(1)(d). Section 9(1)(e) removes the exception of the passenger’s effects carried on the vessel from the list in Article 4(1)(e). Section 9(2) is analogous to Article 8 read with Article 12 of the Convention to the extent it excludes the change of ownership as a ground to refuse a maritime lien. Section 9(3) is same as Article 9 of the Convention and Section 9(4) is identical to Article 4(2) of the convention with the exception that while the latter is limited to just Article 4(1)(b) and (e), the former applies to all five.[5]


CONCLUSION

Maritime Lien is a concept which is essential and integral to the admiralty laws of various nations. This is indeed why the Convention of 1993 was initiated. The main goal of this convention was to come up with a coherent and complete definition of the grounds of maritime lien which would be accepted and applied in majority of the countries (ideally, in all countries). This goal has largely been recognized although to different extents in different nations. While some like India have directly incorporated the provisions for maritime lien from the Convention into the act, others like Australia and UK have recognized the broad heads for maritime liens but lack the extensive definition that is present in the Convention.


It is a progressive step forward by the Indian government to have replaced and changes the archaic law with one that is internationally relevant and accepted. It is also important to note that the same was desperately needed as has been highlighted in the MV Elisabeth[6] case where the Supreme Court of India held that in the absence of relevant laws in the Indian statutes, the international law on admiralty will be a part of the Indian law body. This decision, though highly problematic, in terms of balancing the separation of power and the fact that it was the decision of the government and not the court to make India obligated to certain acts, the same was the only way out as the then ‘Indian’ (but really, British) laws were out of touch and didn’t even define basic terms like maritime liens and claims.


It then falls upon the judiciary to apply its mind and include various disputes under these heads. It is indeed important for all nations to have a similar rule of law for something as international as admiralty law and especially maritime lien. The scope of this blog only enables looking at the grounds for maritime liens and not the way to proceed about them in a court of law.

[Disclaimer- The views expressed in the article are personal views of the author]

Mr. Sahibnoor Singh

The author may be reached at 16jgls-ssidhu@jgu.edu.in. [Edited by Ms. Deveesha Tudekar (Student Editor), Mr. Rishabh Srivastava (Content Review), Adv. Rahul Varma(Ex Master Mariner, Founder, Ally Maritime and Legal Services (Guest Editor)]






[1]https://www.mondaq.com/india/marine-shipping/208090/maritime-lien-in-india#:~:text=A%20maritime%20lien%20is%20a,or%20injury%20caused%20by%20it.&text=When%20the%20holder%20of%20a,rem%2C%20the%20judgment%20binds%20all.

[2] International Convention on Maritime Liens and Mortgages, 1993 (adopted 6 May 1993).

[3] Id.

[4] The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, (9 August 2017).

[5] Id.

[6] M.V. Elisabeth And Ors. v. Harwan Investment And Trading, A.I.R. 1993 S.C. 1014.

#Maritimelien #navikavidhi #SamudrikaDarpan

12 views0 comments

Recent Posts

See All