| Popis: |
The maritime lien is one of the strongest tools in the hands of maritime creditors and persons who have suffered damage caused by a ship. This is because it allows holders of the maritime lien to proceed against the vessel by legal process notwithstanding any change of ownership of the vessel and gives the holder priority ranking in payment, in the event of competing claims against the ship. However, the maritime lien as a maritime claim security right is bedevilled with an Achilles heel: the claims that are secured by the maritime lien differ by jurisdiction so sometimes a claim secured by a maritime lien in one jurisdiction is not recognised in the foreign jurisdiction where the enforcement proceedings is instituted. The result is a conflict of laws situation that may leave such maritime claimants prejudiced. International uniformity of maritime lien laws was sought as a panacea for this problem. After three international conventions on the subject matter, the disparate treatment of maritime liens continues unabated. On the part of private international law, the different choice of law rules and variance in application has created two sets of problems for foreign maritime lienees in common law countries: in lex fori-adopting countries, foreign maritime liens are completely rejected and in lex causae-adopting countries, the inconsistency in the choice of law process has created uncertainty, the bane of international commerce and litigation. Some academic and industry commentators still consider international uniformity by international convention as a solution to the problem while others look to the field of private international law to provide solutions. This thesis reassesses the feasibility of another international convention by examining the reasons why the three international conventions were not widely accepted. The analysis reveals that some of the principal reasons lie in the disparate policy objectives of maritime nations regarding maritime security rights, which are unlikely to change now or in the future. Therefore, another attempt at international unification of maritime lien laws via international convention will suffer the same fate as the three maritime lien and mortgage conventions. This thesis also considered the role private international law has played in the perpetuation of the problem, with particular focus on common law countries. This thesis opines that policy consideration is the main factor that influence courts in common law countries to recognise or reject foreign maritime liens. The thesis argues that the adherence to the private international law objective of certainty and predictability is a practical means of resolving the problem of recognition and enforcement of foreign maritime liens. Lex fori-adopting countries have achieved certainty and predictability, albeit, exclusionary to foreign maritime liens, however, maritime claimants can plan their commercial activities accordingly. For lex causae-adopting countries, the thesis recommends that to achieve certainty and predictability, sui generis choice of law rules should be developed specific to the maritime lien that takes into cognisance the peculiar nature of the maritime lien and the legal policy prevalent in those jurisdictions. |
