A comparative analysis of maritime liens

Staniland, Hilton (1990) A comparative analysis of maritime liens. University of Southampton, Doctoral Thesis.

Abstract

This work compares and analyses maritime liens in English and South African law. The maritime lien - a unique, complex and variable concept which secures and prefers certain maritime claims - cannot be explained by any single theory, although aspects of it can be traced back in rudimentary form to Roman law. Maritime liens secure claims for salvage, seamen's wages, master's wages and disbursements, bottomry bonds and damage done by ships in both English and South African law. In neither system is personal liability an invariable prerequisite for such liens. New maritime liens should, in accordance with changed perceptions of public policy, be recognised in respect of claims for pilotage, pollution, personal injury and loss of life in both English and South African law. But maritime liens do not secure claims in respect of necessaries, towage and cargo in either system. Maritime liens may be implied for statutes in both English and South African law. As a general rule, maritime liens cannot be transferred in either system. While in English law maritime liens are accorded a high priority by precedent, maritime liens are ranked according to statute in South Africa. In neither system are foreign maritime liens recognised, although they should be. Maritime liens, which are enforced by proceeding in rem in both systems, attach to property which differs from English to South African law. Maritime liens may variously be extinguished in both systems. The United Kingdom and South Africa should implement the new convention on maritime liens.

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