Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

Document

The extinction of maritime liens

Jeremy Browne *

It has been said that the question whether a maritime lien has been extinguished is one of judicial discretion and pragmatism. It is submitted that such an approach lacks doctrinal coherency and is unacceptable in a commercial context. This article examines the subject from a conceptual standpoint, especially the relationship between the extinction of maritime liens and the nature of the maritime lien. Several categories, previously believed to extinguish maritime liens, are found not to do so but, rather, to prevent the maritime lien from being enforced by arrest (or re-arrest) of the vessel.

I. INTRODUCTION

Maritime liens entitle the holder to a very high priority in an admiralty action in rem and can be enforced against the res even if the vessel has passed into the hands of a bona fide purchaser who is unaware of the existence of the lien. Therefore the question of what extinguishes a maritime lien is of significant importance. However, the topic has not been subject to much scrutiny and, as a result, is largely unprincipled. This article seeks to examine when maritime liens are destroyed. Part II outlines the nature of extinction of maritime liens, specifically examining whether it is possible for an extinguished maritime lien to be resurrected.

In Part III the various categories in which maritime liens are extinguished are set out. By contrast, the disputed grounds are set out in Part IV. The categories previously thought to extinguish maritime liens are found on closer inspection to prevent arrest or re-arrest of the vessel.

The fundamental issue as to whether a maritime lien is substantive or procedural in nature runs through the analysis in the paper. It is argued that, while the nature of the maritime lien does not affect the categories in which such liens are extinguished, it does have some impact as to whether a maritime lien can be revived or resurrected.

II. THE NATURE OF EXTINCTION

If a maritime lien previously existed, then logically there are only three possibilities as to its current state. First, the maritime lien still exists and is potentially enforceable by an

* Judges’ Clerk of the High Court of New Zealand at Auckland. This article is a distilled version of my honours’ dissertation supervised by Paul Myburgh of the Faculty of Law at the University of Auckland. I am grateful to him for his wise and insightful comments.

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