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Heathcote, Captain Dr Peter --- "Actions in Rem and Maritime Liens in Pacific Island Countries - A Minefield to the Unwary" [2003] MarStudies 13; (2003) 130 Maritime Studies 1

Actions in Rem and Maritime Liens in Pacific Island Countries – A Minefield to the Unwary

Captain Dr Peter Heathcote[1]

This paper examines the history of actions in rem and the development of admiralty jurisdiction in a number of common law countries with a view to determining the need for applicable legislation and regulations (rules) in Pacific Island countries.

The Background

Admiralty jurisdiction is a distinctive jurisdiction with respect to a large range of shipping and maritime disputes, wherever arising, involving a ship. The jurisdiction is predicated upon service of process on the ship. This can be backed up by the arrest of the ship by the court, with the subsequent sale of the ship providing a fund from which claims can be met.[2]

It seems that the English High Court of Admiralty traces its origins back to the 14th century to a court dealing with piracy and other offences committed at sea. In time, its jurisdiction was extended to include civil suits, although this was challenged by common law judges who eventually prevailed. The Tudor period saw a revival in the jurisdiction of the Admiralty Court,[3] but again the common law judges denied that the court had any jurisdiction over contracts made on land. After that, the fortunes of the Court waxed and waned, finally falling into decline after the Restoration.[4] As a result of this development from the 17th to the 19th centuries, two classes of in rem[5] action came to be recognised: (i) those based on a limited number of maritime claims (salvage, wages, collision damage) and those based on a much wider category of claims in contract or in tort involving the operation of ships (goods supplied to a ship, cargo claims). However, under the Admiralty Court Act 1840 (UK) the Court was given jurisdiction over claims involving ship’s mortgages, salvage, towage, damage, wages and necessaries, bottomry[6] and possession. The Admiralty Court Act 1861 (UK) made the Court a court of record with all the powers of a superior court of common law. The jurisdiction given included questions involving the ownership of ships, claims for damage to cargo, and for the building, equipping or repairing of ships. All jurisdiction conferred could be exercised either in personam[7] or in rem.[8]

A maritime lien (an inchoate property right in the ship concerned, based on the right to sue the ship in admiralty) has the following characteristics: (i) it does not include or require possession; (ii) the lien adheres notwithstanding the res is sold to a bona fide purchaser without knowledge of it; (iii) it is inchoate from the moment the claim attaches when carried into effect by the legal process, it relates back to the time when it first attached; (iv) the legal process is an action in rem – thus it can only be enforced in admiralty; (v) a maritime lien/action in rem is not merely a procedural device to secure the appearance of the defendant.[9]

The jurisdiction of the Admiralty Court in rem and the development of the concept of maritime liens appear to be inextricably entwined. The two new Acts of the United Kingdom in the 19th century created a new jurisdiction of the court where actions in rem could be properly brought, but a question arose as to whether they were maritime liens. They were finally referred to as statutory liens, but are more accurately described as a statutory right of action in rem. These ‘new’ claims were deemed to rank after maritime liens and after ship’s mortgages. Furthermore, one of the features of a maritime lien is that it can survive a bona fide change of ownership but, unless already carried into effect by the commencement of proceedings in rem, these statutory liens are said not to survive a bona fide change of ownership.[10] Also the new claims do not relate back to the time when the cause of action arose, but give a security interest only when proceedings are commenced.

The addition of the ‘new’ statutory rights and the establishment of a two-tier rank between maritime liens and statutory rights led to the belief that an action in rem is merely a procedural right, whereas a maritime lien is a substantive right, the former relating to remedies while the latter grants rights to claimants/plaintiffs.

There are two theories to explain an action in rem. The ‘personification theory’ treats the ship as a ‘person’ and thus a legal entity, while the ‘procedural theory’ treats the arrest of the ship as essentially a device to compel the appearance of the owner of the ship. The statutory adoption of the facility of ‘sister ship’ arrest in 1956 seems inconsistent with the personification theory. There seems to be no single theory capable of explaining all the features of the action in rem.[11]

Admiralty Jurisdiction in Practice

One of the benefits of admiralty jurisdiction and the ability of plaintiffs to bring an action in rem is that if a foreign ship has caused damage and is within the jurisdiction where the incident took place or where the plaintiff suffered damage it is a lot easier to bring an action against the ship than to commence an action in a foreign jurisdiction where the defendant resides or to attempt to compel the defendant to submit to the jurisdiction where the plaintiff resides. However, the other side of this coin is that the owner of the ship has to submit to the jurisdiction of the State where the action in rem was brought against his vessel. The right to arrest a vessel in rem in admiralty jurisdiction is deemed to be acceptable in the common law world, but may seem exorbitant in other legal regimes. Unfortunately, while some like to think that maritime law is universal, it is in fact fairly diverse and has only been unified by means of international conventions, not all of which have been ratified by all nations. Even in common law countries, there are quite a few differences in maritime law – witness the small number of maritime liens recognised in England but the large number in the United States.[12] However, uniformity is gradually spreading, either through international conventions or by the modernisation of national law to meet emerging international norms.

In the United States the federal courts derive their exclusive admiralty jurisdiction for matters pertaining to navigation, shipping, waters, commerce, seamen, towage, wharves, piers and docks, marine insurance and maritime liens (and even recreational boating) from the Judiciary Act of 1789, which now extends to any waters within the United States for interstate or foreign commerce. Common law does not act as a binding precedent on admiralty courts, but it may be used when no law on a point is available.[13] However, the case law seems to be inconsistent, in that floating docks damaged by an oil spill were deemed ‘extensions of land’ and hence a tort that causes damage to them does not occur wholly on navigable waters and therefore constitutes an action at law, rather than in admiralty.[14] However, it was held that a court had admiralty jurisdiction over a collision between a jet ski (hardly having anything to do with interstate or foreign commerce) and an anchored vessel in Puerto Rican territorial waters.[15]

As might be expected, a fishing vessel owner’s contract against his broker for failure to place his insurance with an ‘A’ rated domestic insurer was within the court’s admiralty jurisdiction.[16] Less expectedly, a federal court has admiralty jurisdiction over a marine insurance policy that, besides covering damage to a boat while in the water, requires the policyholder to store his boat on land for half the year, insures against theft while on land, and limits navigation of the boat to inland waters of California.[17]

In Canada, a case concerning a fatal scuba diving accident went on appeal to determine whether the accident was governed by maritime law and the one-year limitation of the Canada Shipping Act, or whether the two-year appeal period of the Ontario Family Law Act applied. A chartered vessel was used to take the divers to the dive site, but the vessel was otherwise not involved in the accident. The deceased died from gas embolism. It was found that the case was not governed by Canadian maritime law, and that the two-year limitation period of the Family Court Act applied. The Court of Appeal noted, ‘not every tortuous activity engaged in on Canada’s waterways is subject to Canadian maritime law’. Only if the activity sued about is sufficiently connected to navigation and shipping … will it fall to be resolved under Canadian maritime law.[18]

Another case involved the deaths of two persons aboard a yacht moored at Nanaimo Harbour, British Columbia, allegedly caused by the faulty operation of a heater in the yacht that emitted high levels of carbon monoxide. Their deaths occurred on 22 December 1992, but action was not commenced until 21 December 1994. The plaintiffs claimed relief under the Family Compensation Act of British Columbia, but the Court held that the actions were governed by Canadian maritime law and the fatal accident provisions of the Canada Shipping Act, and the applicable limitation period was one year.[19]

In another case, the Defendant made a summary trial application for dismissal of the plaintiff’s claim for damages for the salvage of logs on the Fraser River. The defendant argued that the plaintiff’s claim was prohibited by the (provincial) Log Salvage Regulations. The court reviewed the International Convention on Salvage, 1989 as enacted by the Canada Shipping Act and noted that it applied to vessels ‘and any other property in danger in navigable waters’. The court held that the words extended the concept to include logs or booms of logs. The court therefore concluded the claim of the plaintiff was within the jurisdiction of the Federal Court, and the provincial regulations did not apply.[20]

Finally, the Supreme Court of Canada stated that the determination of whether a provincial statute is constitutionally applicable to a maritime negligence action must involve a four-part analysis: First, it must be determined if the matter at issue is within the exclusive federal legislative competence over navigation and shipping. If the answer is yes, it must then be determined whether Canadian maritime law provides a counterpart to the provincial statutory provision. If it does, Canadian maritime law applies. If it does not, then the third step is to consider whether non-statutory Canadian maritime law should be altered in accordance with the principles of judicial reform established by the court, but such changes should only be incremental. Changes with complex and uncertain ramifications should be left to the legislature. Furthermore, courts should also consider the fabric or the broader international community of maritime states and the desirability of maintaining uniformity in maritime laws. Finally, the court must determine whether the provincial statute is constitutionally applicable to a maritime claim. The Supreme Court noted that matters within exclusive federal jurisdiction are subject to provincial statutes of general application provided the provincial laws do not go to the core of the federal jurisdiction. If they do, they will be read down. The court held that maritime negligence law is a core element of federal jurisdiction over maritime law and that it would therefore be constitutionally impermissible for a provincial law to regulate this area of law.[21]

A further case involved a breach of contract and negligence claim relating to the building of an offshore oil platform owned by the plaintiff. The significant issue was whether the plaintiff’s claim was barred by reason of contributory negligence. The defendant argued that because the matter was governed by Canadian maritime law, the Newfoundland Contributory Negligence Act, which would have apportioned liability, did not apply and the plaintiff’s claim was barred. The Supreme Court of Canada agreed that the provincial Act did not apply, noting that the ‘application of provincial law to maritime torts could undercut the uniformity of maritime law’, but that this was ‘an appropriate case for … an incremental change to the common law in compliance with the requirements of justice and fairness. The court held that the absence of federal legislation did not mean that there was a ‘gap’ which the provinces could fill, because the common law applied to fill any such gap.[22]

The Conventions

So while the concept of admiralty jurisdiction is evolving as interpreted by the courts, the situation in respect of maritime liens became a lot clearer in 1993 with the International Convention on Maritime Liens and Mortgages (Geneva 1993) (MLM).[23] The preamble speaks of ‘Recognizing the desirability of international uniformity in the field of maritime liens and mortgages’ which the Convention hopes to establish. It provides for the registration of mortgages and ‘registrable charges of the same nature’ in accordance with the law of the State in which the vessel is registered and which are open to public inspection. Maritime liens are excluded from this category. However, Article 4 states:

1. Each of the following claims against the owner, demise charter, manager or operator of the vessel shall be secured by a maritime lien on the vessel:

(a) 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;

(b) 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;

(c) Claims for reward for the salvage of the vessel;

(d) Claims for port, canal, and other waterway dues and pilotage dues;

(e) Claims based on tort arising out of physical loss or damage caused by the operation of the vessel other than loss of or damage to cargo, containers and passengers’ effects carried on the vessel.

These maritime liens take priority over mortgages and other charges and no other claim shall take priority over such maritime liens or over such mortgages, except: (a) in the case of the costs of removal of a stranded or sunken vessel, which may be paid out of the proceeds of a forced sale before all other claims secured by a maritime lien on the vessel; or (b) when the vessel subject of a forced sale is in the possession of a shipbuilder or shiprepairer, who must surrender possession of the vessel to the purchaser, but who is entitled to obtain possession of his claim out of the proceeds of the sale after the satisfaction of the claims of holders of maritime liens listed in Article 4 (but presumably before the claims of mortgagees).

The maritime liens set out in Article 4 shall rank in the order listed, except when a maritime lien for the salvage of the vessel attached prior to the time when other, later liens attached,[24] the logic being that had the vessel not been successfully salved, there would have been no res to which the subsequent lien could attach. Maritime liens securing a claim for reward for the salvage shall rank in the inverse order of the time when the claims secured thereby accrued[25] – presumably since the last salvage attempt would have been the most successful in preserving the res. The other listed maritime liens will rank pari passu[26] as between themselves.[27] The liens listed in Article 4 are extinguished after a period of one year unless, prior to the expiry of such period, the vessel has been arrested or seized, such arrest leading to a forced sale. The extinction times shall start running when the claims arise or in the case of Article 4, paragraph 1(a), upon the claimant’s discharge from the vessel. Subject to the provisions of a forced sale, the maritime liens shall follow the vessel, notwithstanding a change in the ownership or of registration or of flag.[28]

An important provision of the Convention is that each State Party may, under its law, grant other maritime liens on a vessel to secure claims, other than those referred to in Article 4, against the owner, demise charterer, manager or operator of the vessels, provided that such liens shall be subject to the provisions of Articles 8 (a maritime lien follows the vessel notwithstanding change of ownership or of registration or of flag), 10 (assignment and subrogation) and 12 (effects of forced sale). These ‘statutory liens’ (or more correctly described as statutory rights of action in rem) shall be extinguished after a period of six months from the time when the claims secured thereby arose or at the end of a period of 60 days following the sale to a bona fide purchaser of the vessel, the period commencing on the date on which the sale is registered, whichever expires first.[29]

Some insight into the types of claims that may be secured by so-called statutory liens may be given by the definition of maritime claim in Article 1 of the International Convention on the Arrest of Ships (Geneva 1999).[30],[31] ‘Maritime Claim’ covers 22 types of claims from (a) loss or damage caused by the operation of a ship to (v) any dispute arising out of a contract for the sale of a ship. In addition to the loss of life or personal injury occurring, whether on land or on water, in direct connection with the operation of the ship[32] and salvage operations or any salvage agreement, including special compensation relating to salvage operations in respect of a ship which by itself or its cargo threatened damage to the environment,[33] the Convention lists goods and services (formally known as necessaries) supplied to the vessel;[34] construction, reconstruction, repair, converting or equipping the ship;[35],[36] towage,[37] insurance premiums (including mutual insurance calls),[38] and any commissions, brokerage or agency fees.[39] Then follows claims for wages, disbursements, port and harbour dues and pilotage, as well as claims for carriage of goods or passengers and some of the other claims listed in Article 4 of the International Convention on Maritime Liens and Mortgages, 1993.

The arrest of a ship means any detention or restriction on the removal of a ship by order of a court to secure a maritime claim, but does not include the seizure of a ship in execution of satisfaction of a judgement or enforceable instrument.[40] In fact, the ship can only be arrested in respect of a maritime claim,[41] and then only for the purpose of obtaining security. Sister ship arrest is also permissible if the other ships are owned, at the time when the claim arose, by the person who is liable for the maritime claim.[42] This provision does not apply to claims in respect of ownership or possession of a ship. The ship may be released from arrest when sufficient security has been provided, which, in the absence of agreement between the parties as to the sufficiency and the form of the security, the court shall determine. Such required security shall not exceed the value of the ship. Such release of the vessel is not to be construed as an acknowledgement of liability nor as a waiver of any defence or any right to limit liability.[43] In order to protect owners (and demise charterers) of arrested ships, the court may impose on the claimant the obligation to provided security of any kind and for any amount as the court may determine. The reason for this is to compensate the owner for loss or damage if it is subsequently determined that the arrest was wrongful or unjustified or excessive security was demanded and provided. The courts of the State in which the arrest has been effected or security provided to obtain the release of the ship shall have jurisdiction to determine the case on its merits, unless the parties agree to submit the dispute to a court in another State that accepts jurisdiction, or to arbitration.[44] If the owner of the ship is insolvent, or if the amount paid into court is insufficient to meet the claim, the ship may be sold. Surprisingly, although it did precede the Arrest Convention by six years, the subject of ‘forced sale’ is contained in the International Convention on Maritime Liens and Mortgages 1993 rather than the International Convention on the Arrest of Ships 1999.

An Australian Example

The Australian legislation in respect of this area of law was an Imperial Act known as the Colonial Courts of Admiralty Act, 1890. In 1982 the Australian government decided that this ancient legislation of the United Kingdom should be examined to determine if it was still appropriate for Australian maritime law as the 21st century approached. As a consequence, the Attorney General referred the question of Admiralty jurisdiction in Australia to the Law Reform Commission, which commissioned consultative papers, conducted public meetings and reviewed overseas developments. The Commission eventually produced a report entitled Civil Admiralty Jurisdiction,[45] which was comprehensive, exhaustive and well thought-out. It resulted eventually in the enactment of the Admiralty Act, 1988, a home-grown piece of Australian legislation.

The Act starts off with the usual Short Title, Commencement and Interpretation sections before getting down to more substantive issues, although some of the definitions bear closer inspection, including ‘sea’, which includes all waters within the ebb and flow of the tide, and ‘ship’, which includes the usual definition of ‘a vessel of any kind used or constructed for (sic) in navigation by water, however it is propelled or moved, and includes: (a) a barge, lighter or other floating vessel; ... and (d) a vessel that has sunk or is stranded and the remains of such a vessel; but does not include … (f) an inland waterways vessel; or (g) a vessel under construction that has not been launched;’. ‘Mortgage’ is also defined to include ‘a hypothecation or pledge of, and a charge on, the ship or share, whether at law or equity and whether arising under the law in force in a part of Australia or elsewhere;’. No reference is made to maritime liens in section 4 of the Act, but a ‘maritime claim’ is a ‘proprietary maritime claim’ or a ‘general maritime claim’.

Proprietary maritime claims are claims relating to (i) the possession of a ship; (ii) title to, or ownership of, a ship or share in a ship; (iii) a mortgage of a ship or a share of a ship; or (iv) a mortgage of a ship’s freight, or a claim between co-owners relating to the possession, ownership, operation or earnings of a ship; and ‘a claim for the satisfaction or enforcement of a judgement given by a court (including a court in a foreign country) against a ship or other property in a proceeding in rem in the nature of a proceeding in Admiralty’. A general maritime claim includes a claim for damage done by the ship (whether by collision or otherwise – raising the interesting question as to whether damage caused by a ship’s wake would fall into this category); a claim for loss of life or for personal injury – but only if sustained in consequence of a defect of the ship or in the apparel or equipment of a ship (again raising issues such as if a passenger falls on a type of floor covering – composition tile for instance – in inclement weather, sustaining a broken ankle). Also included in general maritime claims are claims (including those for loss of life or personal injury) arising out of an act or omission of: (i) the owner or charterer of the ship, (ii) the person in possession or control of the ship, (iii) a person for whose wrongful acts or omissions of the owner, charterer or person in possession or control of the ship is liable; being an act or omission in the navigation or management of a ship, including an act or omission in connection with: (iv) the loading of goods on to, or the unloading of goods from a ship; (v) the embarkation of persons on to, or the disembarkation of persons from, a ship; and (vi) the carriage of goods or persons on the ship (the mind boggles at how large a class of persons this might be). Also included in these general maritime claims are claims for loss of, or damage to, goods carried on the ship, claims related to salvage, towage or pilotage, as well as claims in respect of goods, materials or services (including stevedoring and lighterage services) supplied or to be supplied to a ship for its operation or maintenance of the ship, as well as claims in respect of the construction of a ship (including such claim relating to a vessel (not ship) before it was launched. Towards the end are some of the claims that one might have expected and which might have once been described as maritime liens, including claims made by the master and crew of a ship for wages or an amount that a person as employer is under an obligation to pay a person as an employee (such as pension, superannuation or health insurance contributions), as well as claims in respect of liability for port, harbour, canal or light tolls, charges or dues or those of a similar kind (one has to dust off one’s knowledge of ejusdem generis and other rules of statutory interpretation), related to the ship. The list is lengthy and towards the end of the list of general maritime claims includes a claim for the enforcement of, or a claim arising out of, an arbitral award (including a foreign award) for either a proprietary or general maritime claim. The Act applies to all ships, irrespective of the place of residence or domicile of their owners and covers all maritime claims, wherever arising.

In respect of Admiralty Jurisdiction, the Act confers this jurisdiction on the Federal Court, the courts of the Territories and the courts of the States that are invested with federal jurisdiction, in respect of proceedings commenced as actions in personam on a maritime claim or on a claim for damage done to a ship. This does not confer on a court other than the Federal Court or a Supreme Court of a Territory, or invest a court of a State other than the Supreme Court of a State, with jurisdiction in respect of limitation proceedings. However, jurisdiction is conferred on the Federal Court and on the Supreme Courts of the Territories, and the Supreme Courts of the States are invested with federal jurisdiction in respect of proceedings that may, under the Act, be commenced as actions in rem.

The right to proceed in rem is permitted in respect of maritime liens (section 15), which include a lien of (a) salvage, (b) damage done by a ship, (c) wages of the master, or member of the crew, of a ship, or (d) master’s disbursements, in respect of proprietary maritime claims (section 16), in respect of general maritime claims (section 17), but only when the owner or charterer of the vessel was in possession or control of the ship at the time when the cause of action arose, or when the relevant person was the owner of the ship or property when the proceeding is commenced. An action in rem may also be brought against a surrogate ship, otherwise known as a ‘sister ship’.

The Act also deals with service and arrest of a ship (section 20), the question of re-arrest (section 21) and service and arrest out of jurisdiction (section 22), and also allows for an action against the proceeds of a sale.

Section 25 of the Act deals with the question of limitation of liability under the Liability Convention[46] and section 26 deals with proceedings under the Civil Liability Convention.[47]

The Act is supported by the Admiralty Rules, which came in to force on 1 January 1989 and contained detailed procedures for implementation of the Act.

The Need for Legislation

The Conventions are generally silent on the procedures leading to the arrest of a vessel and its subsequent sale to satisfy a judgement, those issues being within the jurisdiction of a State Party. The jurisdiction under the Arrest Convention is whether the ship is within the jurisdiction of any State Party, irrespective of the flag it is flying.

The absence of such procedures would seem to indicate a need for legislation prescribing the extent and nature of admiralty law; the types of maritime claims that are covered;[48] the priority of those claims (as between claims of the same category – maritime liens, for example, and between different categories of claims – mortgages and statutory liens, for instance); rules of procedure; the requirement for notice to be served on the defendant ship; the provisions for the actual arrest and who (a bailiff, marshal or process server) is going to effect this action; the requirements to serve notice on mortgagees and other interested parties; the conditions for the payment security (or bail) into court (and possibly its sufficiency and form); the effect of other domestic legislation incorporating conventions dealing with limitation of liability and compensation; the enforcement of judgements; the process to follow in conducting a judicial or ‘forced’ sale; the distribution of funds; the type of title such a sale will give the purchaser; and how such title may be registered. In determining the extent and substance of such legislation and regulations, consideration will have to be taken of international conventions and generally accepted principles in other States.

A Solution?

Most Pacific Island countries were former colonies, protectorates or trust territories of former metropolitan States. In some cases, English statute law had been extended to the colonies by the British parliament, while in other cases some aspects of English common law and statute law had been adopted by colonial administrations. The system of law was not uniform in Pacific Island countries prior to independence – and immediately prior to independence, a veritable patchwork of laws, regulations and ordinances existed. When these former colonies became independent States, the legislation governing the transition period was, in some cases, poorly conceived and inexpertly implemented. It is believed that, in many cases, this legislation was drafted by persons of the exiting regime, not by those who would eventually take over, and perhaps in some degree of haste. Furthermore, the matter of Admiralty jurisdiction may not have been given high priority in the exercise of creating a new country out of a former colony. In any event, the determination of the extent of Admiralty jurisdiction in Pacific Island countries is a matter of great importance and some considerable urgency. It is hoped that the Regional Maritime Programme of the Secretariat of the Pacific Community (SPC) will be able to initiate a project to assess the extent of Civil Admiralty jurisdiction in the Pacific; determine the effectiveness of existing measures; examine the present law concerning maritime liens; and make recommendations for the development of draft legislation, where necessary, to establish appropriate courts with Admiralty jurisdiction; describe the circumstances in which an action may be commenced in rem against a ship; and recommend procedures to be followed by way of Rules. In pursuit of these objectives, the Australian approach may be useful to consider, since it represents a recent review of all the issues involved, and Australia is a large neighbour and trading partner of Pacific Island countries.

Endnotes


[1] Peter Heathcote, B.Comm (cum laude), LL.B., M.B.A., Ph.D., FNI is the Regional Maritime Legal Advisor at the Secretariat of the Pacific Community, Private Mail Bag, Suva, Fiji Islands, (PeterH@spc.int) and provides maritime legal and policy advice to 14 Pacific Island countries.

[2] Civil Admiralty Jurisdiction, The Law Reform Commission, Report No. 33, Commonwealth of Australia, 1986, p. xv.

[3] ibid., p. 10.

[4] ibid.

[5] Where an action is brought against the ‘thing’, in this case, the ship.

[6] Bottomry refers to a bond that pledged the keel or bottom of the ship (signifying the ship) as security for a loan needed to finance the voyage. Respondentia pledged the cargo aboard the vessel. These bonds were often needed if the vessel had suffered damage and needed repairs in a foreign port where the shipowner had no agent and no other credit arrangements.

[7] Where an action is brought against the person who owns or is in charge of ‘the thing’.

[8] Note 1 supra, p. 11.

[9] ibid.

[10] ibid., p. 12.

[11] ibid., p. 14.

[12] ibid., p. 65.

[13] http://www.law.cornell.edu/topics/admiralty.html

[14] South Port Marine v. Gulf Oil Ltd. First Circuit Court of Appeals, December 7, 2000, cited in http://www. admiraltylawguide.com/ccjurisdiction.html.

[15] Calhoun v. Yamaha Motor Co. Third Circuit Court of Appeals, June 23, 2000 cited in http://www. admiraltylawguide.com/ccjurisdiction.html.

[16] Fernandez v. Haynie, Fourth Circuit Court of Appeals, March 25 2002 cited in http://www.admiraltylawguide. com/ccjurisdiction.html.

[17] La Reunion Francaise v. Barnes, Ninth Circuit Court of Appeals, May 3, 2001 cited in http://www.admiralty lawguide.com/ccjurisdiction.html.

[18] Dreifelds v. Burton, (March 6, 1998) No. C 2456 & C34580 (Ont. C.A.) cited in http://www.admiraltylaw. com/practice.htm.

[19] Vogel v. Sawbridge et al. (April 3, 1996) No. 24638 Kelowna Registry (B.C.S.C.) cited in http://www. admiraltylaw.com/practice.htm.

[20] Early Recovered Resources Inc. v. Gulf Log Salvage Co-operative, 2002 FCT 184 cited in http://www. admiraltylaw.com/cdnmarlaw.htm.

[21] Ordon Estate v. Grail (November 26, 1998) No. 25702 (S.C.C.) cited in http://www.admiraltylaw.com/ cdnmarlaw.htm.

[22] Bow Valley Husky Ltd. v. St. John Shipbuilding Ltd. (December 18, 1997) No. 24855 (S.C.C.) cited in http://www.admiraltylaw.com/cdnmarlaw.htm.

[23] The Convention shall enter into force six months following the date on which 10 States have expressed their consent to be bound by it. For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect three months after the date of expression of such consent. The Convention is not yet in force and only five countries, Monaco, the Russian Federation, Saint Vincent and the Grenadines, Tunisia and Vanuatu, are parties to the Convention.

[24] See Article 5 of the International Convention on Maritime Liens and Mortgages, 1993.

[25] Article 5 (4) of the MLM Convention.

[26] pari passu, Latin. adv. with equal speed or progress; equably: often used to refer to the right of creditors to receive assets from the same source without one taking precedence – Collins Electronic English Dictionary.

[27] Article 5 (3) of the MLM Convention.

[28] Article 8 of the MLM Convention.

[29] Article 6 of the MLM Convention.

[30] See http://www.admiraltyguide.com/conven/arrest 1999.html.

[31] The Convention shall enter into force six months following the date on which 10 States have expressed their consent to be bound by it. For a State which expresses its consent to be bound by this Convention after the conditions for entry into force thereof have been met, such consent shall take effect three months after the date of expression of such consent. The Convention is not yet in force and only two countries, Bulgaria and Estonia, are Parties to the Convention.

[32] Article 1 (1) (c) of the Arrest Convention.

[33] Article 1 (1) (d) of the Arrest Convention.

[34] Article 1 (1) (l) of the Arrest Convention.

[35] This Convention refers to ‘the ship’ throughout, whereas the International Convention on Maritime Liens and Mortgages refers to ‘the vessel’.

[36] Article 1 (1) (m) of the Arrest Convention.

[37] Article 1 (1) (j) of the Arrest Convention.

[38] Article 1 (1) (q) of the Arrest Convention.

[39] Article 1 (1) (r) of the Arrest Convention.

[40] Article 1 (2)) of the Arrest Convention.

[41] Article 2 (2) of the Arrest Convention.

[42] Article 3 (2) of the Arrest Convention.

[43] Article 4 (1), (2) and (3) of the Arrest Convention.

[44] Article 7 of the Arrest Convention.

[45] Published by the Law Reform Commission, Report No. 33, Commonwealth of Australia, 1986.

[46] ‘Liability Convention’ means (a) the Civil Liability Convention; (b) ‘Limitation Convention’ means the Convention on Limitation of Liability for Maritime Claims, 1976’.

[47] ‘Civil Liability Convention’ means the International Convention on Civil Liability for Oil Pollution Damage done at Brussels on 29 November 1969’. This has now been superseded by the Protocol of 1992.

[48] Although the list should be illustrative rather than exclusive and exhaustive. This will allow for some discretion on the part of the courts for the judicial development of admiralty law, in much the same way as the Canadian cases cited above have recognised.

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