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Maritim Liens and Th Creation a D E Nforcement Maritim Liens and th Creation a d E nforcement Texas ARM U niversit ' y Sea Grant Colleo ege Program Maritime Liens and the Law: Creation and Enforcement by Dan H. Hinds Michael A. Orlando Maritimeliens are difFerent from liens on other prop- onlyby an admiral tycourt that has secured jurisdiction erty,and thiscancause a greatdeal of confusionon the overthe vessel by seizingit. Thereis no othermeans of partof peoplein themarine business, A maritime lien enforcement. isa lienenforced by a court of admiralty,whichin this countryis the fcdcral court system. Mari time liens arise I rel etred .'iltlp II !. i~~ac' act out of maritime transactions and maritime accidents and Maritime Licrts which arc within the admiralty jurisdiction of the United States district courts. Thconly maritimelien establishedby statutei> a Basicaliy,such liens ari sc from the following: preferredship mortgage. Prior lo the enactmentof the Seamen'sliens for wages,and maintenance and PreferredShip Mortgage Act, ship rnortgageswerc cure, virtuallyworthless, as the courts held that a mortgage / Salvageliens. on a vesseldid not constitute a maritime lien, and the Tort liens,which are liens for damages resulting lender accordingly carneafter all tnaritime lienholders frommaritime accidents such as collision, per- on a foreclosure.Under the current act, a preferred sonalinjury, death, and loss of, or damageto, mortgagemay be placed on any documentedU.S. cargo. vesselother than certain vessels of lessthan 25 gross Preferredshipmortgages recorded with thc U.S. tons. A documented vessel is a vessel for which a CoastGuard under the U.S.Preferred Ship documentis issuedby the UnitedStates Coast Guard MortgageAct. underthe!awsof the United States secspecialsection!. Liensfor the necessaries furnished to thc vessel, Underthe act, a preferrcxttnortgage isa maritime suchas repairs, fuel, food,etc, lienon the mortgaged vessel which may be enforced by anadmiralty suit against the vessel, and personally HowAre Maritime Liens Different? againstthe owner for any deficiency. Themaritime lien does not depend oneitherno tice or Thestatutory mortgage is classified asa preferred possession.lnfact, uriless there isa preferredship mortgagebecause of thepriority given the lien it cre- mortgageon the vessel, no notice of maritimeliens can ates.tt haspriority over all claimsagainst the vessel, berecorded. ThePreferred ShipMortgage Actpro- exceptfor certainpreferred maritime liens plus the videsthat, where there isa preferredshipmortgage of expenses,feesand costs ofthe Foreclosure proceedings record,notice of mari time liens may bc filed of record, allowedby thecourt. lf thereis no preferred mortgage ofrecord, there isno Theliens which the act designates ashaving a prior- provisionfor the recording ofsuch liens or notices of ity overa preferredmortgage include; them,and the U.S. Coast Guard refuses torecord thorn. / Liens arisingprior to therecording, of themort- Thefact that no notice isnccessary forthecxistenceof gage. a maritimelienis extremely important toanyone desir- Liensfor damagesarising out of tort for acci- ingtopurchase anexisting vesselthat has been operat- dentssuch as col tisions and personal injuries!, ingfor any appreciable periodof time, and iti s also of Liensfor wagesfor thccrew of thevessel, and primaryimportance toany lender who desires tomake maintenance and cure. aloan on such avessel. Thebuyer must becautious ol' Generalaverage and salvage claims. priorunrecorded liens.Unless theseller isunques- Theformal requirements ofthe Preferred Mortgage tionablyfinancially abletoback upits warranty against Actmust be strictly complied with for the mortgage to maritimeliens, the purchaser should have a searchbcvalid. It mustbe recorded in thc Office of Documen- madeastothcexistenceoFpnor liensas to the I ~ tationnnf the Coast Guard, and must be endorsed on the oFthe seller and prior owners and the amount of vessel'sdocument see special section>, insurancecoverage carried byeach, lf he docs not, he ln orderto bc recorded,it must be properly exe- maybepaying offliens incurred bythe seller and/or cutedand acknowledged, anci the mortgagee must file previous owners. anoath as to hiscitizenship. The mortgagee must be a Anothermajor diFference betwee U.S. citizen,! andother liens is that maritime lienseen m a maritime lien The preferredship mortgageis of assistanceto i nsmay be enforced vesselowners, Prior to the enactmentof the Preferred MortgageAct it w asdiFficult, if not impossible,for a ~ Ship's husband vesselox< ner tn obtainfinancing. With thesecurity now ~ Master affordedby the act,tinancing i seasier to obtain. ~ Any personto whom the managementof the vessel While the act is a boon to the vessel owner and at the port of supply is entrusted lendinginstitutions, it is oftena snarefor thesupplier. Section973 provides that the persons named in Sec- Many suppliers of American vessels have been cut off tion972 shall be taken to include those appointed by a by the foreclosureof a prior preferred maritime mort- charterer,or byan agreedpurchaser in possessionof' gagethat exceededthe proceedsfrom the vessel'ssale. thc vessel. Before the 'l97] amendment, Section 973 provided furlher that no lien was conferred when the Notice of Clairrt furnisher"knew, or by exercise of reasonablediligence As previously noted,under Section 925 of the Pre- could have ascertained that because of the terms of a ferredShip MortgageAct, any personmay record a charterparty, agreement for sa]e,or any otherreason, noticeof hisclaim of lienupon any vessel covered by a theperson was without authorityto bindthe vessel." preferredmortgage. The notice must be in writing, Thelatter section was struck by theamendment in an properly execute, datedand acknowledged,and effortto aid thesupplier. However, Grant Gi Imnre and should statethe natureof the claimed lien, thedate of CharlesL, Black,in theirbook on admiralty,express its creation, the amount of the lien, and the name and theiropinion that despite the amendment, "I f underall addressof the personclaiming it. The filing of such the circumstances he [the materialman! has reason to notice is with the Coast Guard Office of Vessel Docu- know thatthe ship is charteredand makesno further rnentationwhere the vessel is documented see special inquiry, a prohibition of lien clauseshould be effective section!.This filing does not establish the lien. againsl him." Uponfiling a notice of a claimedlien, do not expect The U.S. District Courts that have considered prompt payment.Do not call the CoastGuard and ask Gilmore'sand Black's opinion have for themost part whenpayment will bereceived. Filing does not prove rejectedit andhave logically held thatthe amendrncnt up the lien and the Coast Guard does not act as a gives the suppliera lien unless he had "actualknowl- collection agency. edgethat the vesselwas operatingunder a charter Thisnotice is helpful, however, in threerespects: I! which containeda no-lien provision." However,the It givesnotice of theclaimed lien to a prospective EleventhCircuit Court of Appeals hasupheld enf'orce- purchaseror lender, either of whommay require pay- mentof a no-lienclause despite the fact that the sup- mentin full ax<ore purchasing orlending, ! Asit gives plierdenied any knowledge of this clause.The court noticeof theclaimed lien, the lien is lesslikely to be held that his lien was barred because he knew the vessel barredby time throughthe doctrine of laches,! If wasunder charter and that the agent ordering supplies foreclosureof a preferredmortgage is sought,the represented the charterer and not the vesselowner. ho]derof the mortgage is requiredby Section951 of the Thisopinion failsto follow the statutorypresump- PreferredMortgage Act to giveactual notice of thesuit tion thata chartererhas auth ori ty tocrea te liens agai nst to any person who has filed a notice of lien, If notice of the vesseland, in effect,puts a burdenon thesupplier the lien is not filed of record, the lienholderis not to inquire as to whether the charter contains a no-lien entitled to personalnotice of the foreclosuresuit. dause if he knows that the vessel is under charter and As notedearlier, if thevessel has no preferred that the person ordering the suppliesis agent Forthe mortgage, no notice of lien claim can be filed of record. charterer. Most of the lower U.S. courts to date have held to the contrary, The U.S.Supreme Court has not ChartersMay Attempt to ExclttdeLiens passedon this question to date. In view of the u nset tied Oneof the pitfallsthat faces persons furnishing stateof the law, if a supplier knows that the vesselis necessariesto a vesselis theoperation of vesselsunder under charter,he should inquire as to whetherthe charterswhich prohibit the incurrence of liensby the charter contains a no-lien clause if he wants to be certain charterer,Many chartersprovide that the charterer thathe is protected. rnaynotcreateliensagainst thevessel exceptforcrews' The supplier also must be aware that if a person wagesand salvage.Before the 1971amendments, the ordering the supplies is not a personwho is presumed courtsheld that underthe act the supplierhad an to have authority to do so under Sections972 and 973, affirmative duty to inquireasto whether the vesselwas that no presumption of authority arisesand that actual undercharter with a prohibitionof lienclause. If the authority to bind the vesselmust exist fc r a maritime supplierdid not inquire and the charter prohibited the lien to arise, incurrence of liens, he did not obtain a lien. A vessel owner who lets his
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