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10-31-2021

Maritime liens and their enforcement from international

perspectives and lessons for Vietnam
Thi Anh Tho Tran

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 WORLD MARITIME UNIVERSITY
Malmö, Sweden

MARITIME LIENS AND THEIR ENFORCEMENT

FROM INTERNATIONAL PERSPECTIVES
AND LESSONS FOR VIETNAM

By

THI ANH THO TRAN

Vietnam

A dissertation submitted to the World Maritime University in partial

fulfilment of the requirements for the reward of the degree of

MASTER OF SCIENCE
in
MARITIME AFFAIRS

(MARITIME LAW AND POLICY)

2021

Copyright Thi Anh Tho TRAN, 2021

Declaration

I certify that all the material in this dissertation that is not my own
work has been identified, and that no material is included for
which a degree has previously been conferred on me.

The contents of this dissertation reflect my own personal views,

and are not necessarily endorsed by the University.

(Signature):

(Date): 20 September 2021

Supervised by: Professor Laura Carballo Piñeiro

Supervisor’s affiliation: World Maritime University

i
Acknowledgements
First of all, I would like to express my sincere gratefulness to my organisation – Ho
Chi Minh City University of Transport for their nomination. My special thank goes
directly to Associate Professor Nguyen Xuan Phuong – Acting President of Ho Chi
Minh City University of Transport, Ms. Nguyen Thi Hong – Head of Personnel
Department of Ho Chi Minh City University of Transport, and Mr. Nguyen Tien Dat
– Deputy Head of Personnel Department of Ho Chi Minh City University of Transport
for their tremendous support during my studying time in Sweden.

I also would like to extend my sincere gratefulness to the United Nations Student
Fellowship for fully sponsoring my study at World Maritime University.

To my supervisor Head of Maritime Law and Policy, Professor Laura Carballo Piñeiro,
words cannot comprehensively describe my deepest gratitude for her guidance and
support. I owe her a special debt for the time she spent to carefully review and
significantly comment on my works. On top of that, she truly woke up my motivation
and potential by her own experience not only in academic fields but also in daily life.
In my eyes, she is a wonder woman who always encourages post generations to
wholeheartedly chase higher education as well as keep balanced in life. Thanks to her
inspiration, I have become a new better version of myself.

To my classmate Nguyen Tien Hoang and his colleagues in Vietnam Maritime

Administration, I would like to extend my great appreciation for their prompt support
during my process of material collection. Without their joined hands, many Ministry-
level documents could not be presented and referred to within this dissertation.

Last but not least, I would like to take this opportunity to acknowledge my Dad and
Mom’s sacrifice and patience to bring up me as I am today. I take my humble pride to
be their daughter. Their unconditional love and support have endured and motivated
me during the toughest time of my life.

ii
Abstract
Title of Dissertation: Maritime liens and their enforcement from international
perspectives and lessons for Vietnam

Degree: Master of Science

This Dissertation is a study of maritime liens and their enforcement from international
law in order to take a comparative helicopter view with Vietnamese law. The author
primarily concentrates on the legal regulations and issues of maritime liens and their
enforcement in the light of Vietnamese law in comparison with international relevant
conventions and several typical legal systems from both common law and civil law
branches.

The author asserts that maritime liens and their enforcement are very complicated
matters not because the issues related to these two institutions are not identified but
because of their unique feature that involves global shipping practice but varies
different from state to state. The international community has made tremendous
endeavours in order to build up a unified framework of maritime liens and their
enforcement, however, received little support so far. While international law is
standing by, maritime liens and their enforcement are transforming into a new trend
rapidly that directly impacts many aspects from regulations to public policy. National
law in particular and international law, in general, have to catch up with this tendency
in order to effectively and comprehensively govern the issues concerned.

Vietnam as a developing country aiming to increase the volume of the maritime

economy in national GDP is on the way to form and perfect domestic law in order to
both comprehensively governs maritime commercial practices and be in line with
international modern practice. Maritime liens and their enforcement are no exception,
especially in the context Vietnam has not conducted papers on these matters so far.
The study of this topic from an international perspective, therefore, is vital to Vietnam.
Via comparative approach, the author expects to draw an overview of maritime liens
and their enforcement in the eye of foreign states and conventions, point out existing
issues of these institutions in Vietnamese law, then render lessons and solutions for
Vietnam.

KEYWORDS: Liens, maritime Lines, enforcement procedure, admiralty court, ship

arrest.

iii
Table of Contents

Declaration .................................................................................................................... i

Acknowledgements ...................................................................................................... ii

Abstract ....................................................................................................................... iii

Table of Contents ........................................................................................................ iv

List of Tables ............................................................................................................. vii

List of Abbreviations ................................................................................................ viii

Chapter 1. Introduction ............................................................................................ 1

1.1. Background and problem statement ............................................................ 1

1.2. Aims and objectives ..................................................................................... 4

1.3. Research questions and hypotheses ............................................................. 5

1.4. Research methodology and scope of research ............................................. 6

Chapter 2. History, nature, and characteristics of maritime liens ........................ 7

2.1. History of maritime liens ............................................................................. 7

2.1.1. Civil law approach ............................................................................... 8

2.1.2. Common law approach ........................................................................ 9

2.1.3. Vietnamese law .................................................................................. 11

2.1.4. Conclusion ......................................................................................... 12

2.2. Nature and characteristics of maritime liens .............................................. 13

2.2.1. Civil law approach ............................................................................. 13

2.2.2. Common law approach ...................................................................... 14

2.2.3. International unification ..................................................................... 18

2.2.4. Vietnamese law approach .................................................................. 18

2.2.5. Conclusion ......................................................................................... 19

iv
 2.3. Claims to which maritime liens may attach ............................................... 20

2.3.1. Civil law approach ............................................................................. 20

2.3.2. Common law approach ...................................................................... 20

2.3.3. International unification ..................................................................... 22

2.3.4. Vietnamese law approach .................................................................. 24

2.3.5. Conclusion ......................................................................................... 25

2.4. Property to which maritime liens may attach ............................................ 25

2.4.1. Civil law approach ............................................................................. 25

2.4.2. Common law approach ...................................................................... 25

2.4.3. International unification ..................................................................... 26

2.4.4. Vietnamese law .................................................................................. 27

2.4.5. Conclusion ......................................................................................... 27

Chapter 3. Enforcement of maritime liens ............................................................ 28

3.1. Action in rem .............................................................................................. 28

3.1.1. Procedural theory of action in rem .................................................... 28

3.1.2. Personification theory of action in rem ............................................. 30

3.2. Action in personam .................................................................................... 31

3.3. Quasi action in rem.................................................................................... 32

3.4. Arrest of ship ............................................................................................. 33

3.5. International unification ............................................................................. 34

3.5.1. 1952 Arrest Convention ..................................................................... 34

3.5.2. 1999 Arrest Convention ..................................................................... 36

3.6. Conclusion ................................................................................................. 37

v
Chapter 4. Recommendations for Vietnamese laws on maritime liens and their
enforcement .............................................................................................................. 37

4.1. The significance harmonization of national law in line with international

standard .................................................................................................................. 37

4.2. Status quo of international laws on maritime liens and ship arrest ........... 38

4.3. Actual admiralty practice in Vietnam ........................................................ 40

4.4. Recommended solutions ............................................................................ 40

4.5. Conclusion ................................................................................................. 43

References .................................................................................................................. 44

vi
List of Tables
Table 1: Maritime liens and ship arrest in conventional and Vietnamese laws 12

vii
List of Abbreviations

1924 Limitation Convention International Convention for the unification of certain

rules relating to the limitation of the liability of
owners of sea-going vessels, 1924

1926 Brussels Convention International Convention for the unification of certain

rules relating to maritime liens and mortgages done at
Brussels 10 April 1926

1952 Arrest Convention International Convention for the Unification of

Certain Rules Relating to Arrest of Sea-going Ships,
1952

1957 Limitation Convention International Convention relating to the Limitation

of the Liability of Owners of Sea-Going Ships, 1957

1967 Brussels Convention International Convention for the unification of certain

rules relating to maritime liens and mortgages done at
Brussels 17 May 1967

1990 Maritime Code Maritime Code No. 42-LCT/HDNN8 dated 30 June

1990 of the National Assembly of Vietnam, and
effective from 01 January 1991 to 01 January 2006

1993 Geneva Convention International Convention on maritime liens and

mortgages, done at Geneva 06 May 1993

1999 Arrest Convention International Convention for Arrest of Ship, 1999

2001 Bunker Oil Convention International Convention on Civil Liability for

Bunker Oil Pollution Damage, 2001

2005 Maritime Code Maritime Code No. 40/2005/QH11 dated 14 June

2005 of the National Assembly of Vietnam, and
effective from 01 January 2006 to 01 July 2017.

viii
2015 Civil Procedure Code Civil Procedure Code No. 92/2015/QH13 dated 25
November 2015 of the National Assembly of
Vietnam, and effective as of 01 July 2016

2015 Maritime Code Maritime Code No. 96/2015/QH13 dated 25

November 2015 of the National Assembly of
Vietnam, and effective as of 01 July 2017

Decree 57 Decree No. 57/2010/ND-CP detailing and guiding the

implementation of the Ordinance on Procedures for
the Arrest of Seagoing ships dated 25 May 2010 of
the Government of Vietnam, and effective as of 09
July 2010.

EGBGB Einführungsgesetz zum Bürgerlichen Gesetzbuche—

German Introductory Act to the Civil Code

GDP Gross domestic product

HGB Handelsgesetzbuch or German Commercial Code

Ordinance 05 Ordinance No. 05/2008/UBTVQH12 on Procedure

for the Arrest of Seagoing Ships dated 27 August
2008 of the Standing Committee of the National
Assembly of Vietnam, and effective as of 01 July
2009

PCR English Civil Procedure Rule.

PMLC Code of Private Maritime Law of Greece

Rule B Rule B - In Personam Actions: Attachment and

Garnishment from Federal Rules of Civil Procedure

Rule C Rule C - In Rem Actions: Special Provisions from

Federal Rules of Civil Procedure

ix
Rule E Rule E - Actions in Rem and Quasi in Rem: General
Provisions from Federal Rules of Civil Procedure

SCA 1981 English Senior Court Act 1981

x
Chapter 1. Introduction
1.1. Background and problem statement

From ancient times, the sea was known as a driving force of early international trade
through its bridging role among continents. Thanks to integration and globalization,
seaborne trade has been continuously developed and expected to be the key factor of
the whole development of global trade. However, the maritime sector is typically
characterized by conflicting claims due to its complex operation with the involvement
of plenty of stakeholders. For the sustainable equilibrium, significant consideration
needs to be attributed to secure such conflict claims arising out of shipping practices.
Deriving from that, maritime liens have been constituted in order to merit greater
protection in terms of the existence and enforcement of their claims.

The maritime lien is considered as one of the first backbone institutions which
represents important striking features of contemporary maritime law (Thomas, D. R.,
1980). Nowadays, maritime liens are incorporated into national legal systems via
legislation or precedents. Despite the diverse and complicated fluctuation of global
maritime activities, the significance of maritime liens has remained steady. The reason
for this phenomenon lies in the unique character of the maritime liens which is related
to the advanced protection of the secured claims. Accordingly, the claims secured with
a lien are privileged over other claims and can be exercised on the vessel, irrespective
of a prospective transfer of the ownership of the vessel. They are enforced by the arrest
of a ship and rank before ship mortgage (Tetley, W., 1993). Hence, the application of
maritime liens triggers many vital legal consequences such as ship arrest for the
enforcement of a lien or judicial sale of a ship that directly impacts stakeholders. These
characteristics of maritime liens are the main reasons why maritime liens certainly
attract legal attention in admiralty law (Force, R., 20058).

In addition, under most jurisdictions, maritime liens do not follow any scheme of
registration that attributes a secret characteristic to maritime liens because the creditor

1
shall not be able to recognize the underlying liens the first time (Jackson, D., 2000).
This feature may lead to jeopardizing the interests of creditors, as the existence of a
maritime lien is bound to change the ranking and enforcement of the various claims
related to the ship. For instance, when a shipping company and the bank enter into a
credit agreement including the provision of ship mortgage as a security of the
underlying claim, the formation of a potential maritime lien may eventually prevent
the bank from satisfying the full amount of the claim in case of a judicial sale of the
ship, because the ranking of maritime liens is higher than ship mortgage.

Furthermore, the legal issues, nevertheless, are more complicated when maritime liens
are coupled with private international law (Triskogiannis, A., 2019). The characteristic
of the maritime liens as a substantive right or procedural remedy has been becoming a
hot topic of many legal pieces of literature and precedents because of the contrasting
divergent consequences of the perception of each legal system concerning the
procedural and substantive theory (Triskogiannis, A., 2019).

Moreover, international attempts to come up with a worldwide unification of a list of

maritime liens and their features seem to be continuously failed which is evidenced by
the low rate of ratifications of the International Convention for the unification of
certain rules relating to maritime liens and mortgages done at Brussels 10 April 1926
(1926 Brussel Convention), the International Convention for the unification of certain
rules relating to maritime liens and mortgages done at Brussels 17 May 1967 (1967
Brussel Convention) and the International Convention on maritime liens and
mortgages, done at Geneva 06 May 1993 (1993 Geneva Convention). The 1926
Brussel Convention entered into force on 2 June 1931 with 28 ratifications in total,
however, none of them are from common law countries. Later on, the appearance of
the 1967 Brussel Convention was expected to fill the loopholes of the 1926 Brussel
Convention especially in terms of the recognition and enforcement of maritime liens.
Unfortunately, the 1967 Brussel Convention was disabled due to a lack of sufficient
ratifications. After that, the 1993 Geneva Convention which was introduced and
known as the model law for several states, however, humbly had 19 parties so far.

2
Regarding the enforcement of maritime liens, the law of ship arrest deserves to be
certainly discussed because ship arrest has a connected relationship with the subject of
maritime liens. Accordingly, ship arrest is understood as a process confined to courts
with jurisdiction over identified maritime claims (Thomas, R., 2019). Among such
maritime claims enforced by ship arrest are claims protected by maritime liens. In
other words, maritime liens reflect a distinct source of the power to arrest. So far, the
international community has introduced the 1952 International Convention for the
Unification of Certain Rules Relating to Arrest of Sea-going Ships (1952 Arrest
Convention) and the 1999 International Convention for Arrest of Ship (1999 Arrest
Convention). It is further noted that these two arrest conventions do not additionally
create maritime liens1 but play a role as a global frame on which a maritime lien shall
be enforced. Hence, Article 3.1(e) of the 1999 Arrest Convention further emphasizes
that the power of arrest in association with claims in the nature of maritime liens. At
this moment, the 1952 Arrest Convention has become a significant influence on the
development of international law of ship arrest with 71 ratifications while the 1999
Arrest Convention, in contrast, has received minimal support from the international
community.

Referring to Vietnam, the study of maritime law in general and maritime liens, in
particular, has just developed since 1986 (Nguyen, T. N. M., 2004). Thanks to the
implication of Doi Moi policy of the Vietnamese Party, the economy has increased
dramatically leading to the rapid change of the Vietnamese maritime laws. Concerning
the governance of maritime liens and their enforcement, Vietnam has so far issued
three maritime codes, namely the Maritime Code No. 42-LCT/HDNN 8 dated 30 June
1990 (1990 Maritime Code), the Maritime Code No. 40/2005/QH11 dated 14 June
2005 (2005 Maritime Code) and the Maritime Code No. 96/2015/QH13 dated 25
November 2015 (2015 Maritime Code) with the incorporation of a certain number of
provisions from the 1993 Geneva Convention and the 1999 Arrest Convention though
Vietnam has not ratified two of them. However, the implementation process of

1
Article 9 of the 1952 Arrest Convention and Article 9 of the 1999 Arrest Convention.

3
maritime liens and their enforcement in Vietnam have not been organized in a
centralized manner. Accordingly, there are few seminars on maritime liens for
experience discussion taken place among competent authorities. Different views still
exist among levels of court when resolving the request of ship arrest to secure the
enforcement of a maritime claim.

In addition, Resolution No. 36-NQ/TW dated 22 October 2018 of the 8th Conference
of the 12th Party Executive Committee on Vietnam's strategy for sustainable maritime
economic development to 2030, with a vision to 2045 (Resolution 36) has addressed
the economy of 28 coastal provinces that are expected to contribute 60 - 70 percent to
national GDP. Resolution 36 further has emphasized the importance of perfection and
evolution of the legal system in harmonization with global standards in order to
provide a sustainable corridor for international transactions. Deriving from that
maritime liens significantly needs to be researched, built, and completed to ensure the
legitimate rights and interests of stakeholders from the private economic sector, and
enhancing the competitiveness of Vietnamese seagoing vessels, thereby further
expanding opportunities for deep international integration of global seaborne trade.

Last but not least, the study of Vietnam’s maritime lien institution must be put in the
movement of the international community because maritime conventions are
considered as sources of Vietnam’s legal system. Therefore, taking an in-depth
analysis of maritime liens at a comparative basis is essential.

1.2. Aims and objectives

The first aim of this study is to highlight legislative and law enforcement experiences
regarding maritime liens of representatives from both common law and civil law
systems. The selection of countries for taking a comparative analysis is based on three
following criteria: (i) the long-lasting history and development of maritime liens of the
country; (ii) the significant impact of the country on the formation and movement of
internationally unified rules on maritime liens; and (iii) the noticeable impact of the
country on the global shipping industry. Deriving from that, English and US laws as

4
representatives of common law systems and Greek and German laws as representatives
of civil law system shall be selected.

In addition, the second aim is to draw lessons that can be applied to Vietnamese
competent authorities in legislative, executive, and judicial activities, Vietnamese
enterprises in international maritime operations, and research and teaching activities.

Based on these aims, the objectives of this study will primarily focus on the following
tasks:

First, to assess international provisions regarding maritime lien;

Second, to interpret and generalize experiences of legislative and law implementation

in typical countries from both civil and common law systems regarding maritime lien;

Third, to analyze, assess, and interpret the current legal provisions on and issues of
maritime lien and its implementation;

Fourth, to propose solutions for the perfection of Vietnamese maritime lien institution
based on international experience and the current situation of Vietnam.

Finally, to propose recommendations for Vietnamese enterprises when applying

maritime lien or being subjected to a maritime lien.

1.3. Research questions and hypotheses

The study seeks to answer the research following questions:

(i) What are the core legal issues of maritime liens in international conventions?

(ii) How different is maritime lien governed and implemented in common law and
civil law countries?

(iii) How is maritime lien governed and implemented in Vietnam?

(iv) How does ship arrest contribute to the enforcement of maritime liens?

(v) How is ship arrest governed and implemented in international law?

(vi) How is ship arrest governed and implemented in Vietnamese law?

5
(vii) What are the hopes or practical solutions for the uniformity of maritime liens
and ship arrest in international law?

(viii) What are solutions for the perfection of maritime lien legislation and its
enforcement in Vietnam?

1.4. Research methodology and scope of research

In order to implement this study, the author primarily applied legal research,
qualitative research via cases and precedents study, and comparative law research
methodologies. Particularly, international conventions and national legislations shall
be analysed in order to identify the core issues of maritime liens and their enforcement.
Relevant precedents shall be cited for further elaboration of the issues of maritime
liens. Then, the issue shall be crossed evaluated through its respective implementation
in the context of English, US, German and Greek laws and Vietnamese law. In
addition, the three aforementioned conventions on maritime liens shall be interpreted
independently from the national laws of England, the USA, Greece, and German law
because none of them are member states of these conventions. It should be further
noted that this Dissertation shall not pay more attention to the 1926 Brussel
Convention and the 1967 Brussel Convention because they both were failed to gain
tremendous support from the international community, not to mention the fact that the
latter were never effective. In lieu of that, this Dissertation shall leave more room for
the 1993 Geneva Convention because the 2015 Maritime Code of Vietnam was
inspired by this Convention. In addition, the 1952 and 1999 Arrest Conventions shall
be also interpreted in order to further elaborate the enforcement of maritime liens.
Hence, the result of the above process shall be compared in order to figure out both
the similarities and differences between two legal systems, through which the author
shall come up with new hopes and/or solutions for the unified application of maritime
at an international level. After that, the lessons learnt from the international practices,
especially from states in principle of the same civil law system, shall be carefully
assessed in the particular context of Vietnam for future application to its competent
authorities and enterprises.

6
Within the scope of a Master’s dissertation, this work will primarily concentrate on
the legal regulations and issues of maritime liens and ship arrest as the enforcement of
maritime liens in light of the English, US, German, Greek laws, international
conventions on maritime liens, and ship arrest, and Vietnamese law. This dissertation
will not discuss such issues of maritime liens in association with other institutions of
law such as insolvency, judicial sale of a ship, limitation of liability, or limited role of
maritime liens on seafarers’ protection.

Chapter 2. History, nature, and characteristics of maritime

liens

This Chapter shall respectively reveal the origins of maritime liens, evaluate the nature
of maritime liens in comparison with other regimes, and assess various considerations
as a basis for maritime liens securing different types of maritime claims.

2.1. History of maritime liens

Digging deep into the history of any branch of law always plays an important role in
forming an accurate understanding of the law’s spirit because history puts legal
terminologies into context and transfers them into practical perspectives (Potter, G. S,
1902). With respect to maritime law, a classical metaphor has pointed out that “a study
of admiralty law without allusion to its historical antecedents would be as a deficient
as a treatise on equity without consideration of the role of the chancellor” (Bensing,
R.C and Friedman, H.E., 1959). Therefore, in order to understand the essence of
maritime liens, it is vital to trace back to history. Accordingly, maritime liens are
commonly considered as one of the ancient roots closely attaching to the whole
development of maritime law (Staniland, H., 1999). On the same view, another scholar
further stressed that “maritime liens are the product of the evolution of custom, statute
and judicial decision. To understand them, one must understand the history of
maritime law” (Tetley, W., 1998).

7
 2.1.1. Civil law approach

It is said that contemporary maritime law derives from the long process of
development of Rhodian, Roman, and Greek law (McCabe, A., 2012) then continued
by the Consulate of the Sea, the Laws of Oleron, and the Hanse League (Pineus, K.,
1955).

With respect to Rhodian law, it used to exist one assumption that present-day maritime
law took the root in Rhodian law (Pineus, K., 1955), therefore, this source shall
probably crack open the origin of maritime liens. It is said that provisions of maritime
liens and ship mortgages appeared in the Rhodian Sea-Law in the 7th or 8th century
A.D. (Tetley, W., 1994).

With respect to Roman law, it is surprisingly proved that Roman law mostly learned
from Rhodian law in order to regulate maritime matters (Sanborn, F. R., 1930). This
conclusion may reasonably invoke a belief that maritime liens did not exist in Roman
law because this regime was absent in Rhodian law. However, several pieces of
research have proved that the robust development of commercial activities in Rome
has contributed to the appearance of some primitive forms of maritime liens (Price,
G., 1940). Accordingly, several maritime claims regarding collision or salvage were
found in Roman law though there was no direct provision of maritime liens provided.

In short, several ancient categories of maritime liens can be discovered in early

maritime law. In essence, they are not absolutely identical to such maritime liens being
applied and recognised at this moment, however, they render some clues about the
formation and development of maritime liens.

With respect to Greek law, Sanborn was of the view that “maritime loan” which was
found in the case of “Zanothemis v. Demon” was similar to a maritime lien (Sanborn,
R. F., 1930). In this case, a ship had borne a “maritime loan” from several Athenian
capitalists for the security of her’ hull and armament. Later on, when the ship sailed
back to Athens, the creditor took over the ship and prevented the cargo beneficiary
from collecting the assets on board. So far, though the result of this case remained

8
unknown, it was well-established that the maritime loan represented the primary forms
of maritime liens (Huang, D., 2015).

2.1.2. Common law approach

Though England is a common law country, history illustrates that civil law had a
certain impact on English admiralty law (Dingjing, H., 2015). English admiralty
jurisdiction was established primarily by two sources, namely, the Roles of Oleron and
Roman law (Ryan, F. E., 1968). In the 17th to 18th centuries, there was the co-existence
of admiralty jurisdiction and common law jurisdiction that caused a “competition”
between two branches. As a response to the restriction of exercising jurisdiction over
individuals imposed by common law courts upon admiralty court, admiralty court used
maritime liens and action in rem as an alternative (Thomas, D. R., 1980). Thanks to
the said competition between the two jurisdictions coupled with the innovation of other
civil concepts, “maritime liens” eventually appeared in court precedents. In 1851, The
Bold Buccleugh case remarked itself in English admiralty history by introducing the
concept of maritime liens (Ryan, F. E., 1968). This case concerned the collision
between The William and The Bold Buccleugh in Scotland. After that, the owner of
The William initiated a lawsuit against the owner of The Bold Buccleugh for collision
damage compensation. The Bold Buccleugh was arrested by the court and just released
upon security. During the process of ship arrest running, the ship was transferred to
another owner and sailed to the port of Hull. Consequently, another lawsuit was
triggered before the High Court of England which once again arrested the Bold
Buccleugh. In the judgment, Lord John Jervis mentioned the concept of a maritime
lien as “a claim or privilege upon a thing to be carried into effect by legal proceeding
in rem. This claim or privilege travels with the thing into whosoever possession it may
come” as well as established its typical feature of non-extinction despite the change of
ownership of the vessel by stating that “a mere change of property does not exonerate
ship from the liability of being sued; neither can a sale of a vessel after a collision

9
produces any such effect”2. The case was then appealed by the new owner of the Bold
Buccleugh, however, the final result remained. Thus, the Judge endorsed as follow:

“This was well understood in the Civil Law, by which there might be pledge with
possession, and hypothecation without possession […]. A maritime lien is defined a
claim or privilege upon a thing to be carried into effect by legal process. A maritime
lien is the foundation of the proceeding in rem […]”3.

From these aforementioned statements, three key points regarding maritime liens have
been made. First, a maritime lien is recognized taking its root in civil law and bears a
singular nature in respect to common law. Second, a maritime lien exists regardless of
the change of ownership of the ship. Third, a maritime lien arises from a collision.
Fourth, the concept of a maritime lien is closely connected with in rem proceedings. It
can be seen from this precedent that the 1851 concept primarily reflects maritime liens
as it is today.

In the United States of America, maritime liens existed since it obtained its
independence from the British Empire, therefore, the legal concept initially found in
the US law is supposed to originate from English law. (Göretzlehner, E., 2019). The
US maritime liens were introduced for the first time in 1910 under the Federal
Maritime Lien Act. At the present moment, maritime liens are regulated under Chapter
313, Title 46 of the United States Code. In the US law, a maritime lien is understood
as nonpossessory security created by the operation of law to secure a claim while
allowing a ship to keep continuing her journey to earn the freight or hire to pay off the
claim (Force, R. and Yiannopoulos, A. N., 2001). A short manifestation of maritime
lien found in this legal system is as below: “A maritime lien is a secured right peculiar
to maritime law. A lien is a charge on property for the payment of a debt, and a
maritime lien is a special property right in a vessel given to a creditor by law as
security for a debt or claim arising from some service rendered to the ship to facilitate

2
Daniel Harmer v William Errington Bell (The Bold Buccleugh) (1851) 7 Moo. P.C. 267, 13 ER 884.
3
Daniel Harmer v William Errington Bell (The Bold Buccleugh) (1851) 7 Moo. P.C. 267, 13 ER 890.

10
her use in navigation from an injury caused by the vessel in navigable waters.” (Force,
R. and Yiannopoulos, A. N., 2001).

2.1.3. Vietnamese law

Different from the aforementioned countries where the formation and evolution of
maritime liens is an autochthonous movement, Vietnam’s laws on maritime liens are
mainly influenced by international law. In other words, Vietnam’s maritime law is a
result of a long process of studying international law and selectively applying it in line
with internal conditions.

Since 1986, thanks to Doi Moi Policy, Vietnam has gradually established and
developed a legal system for the integration of global trade. In 1990, Vietnam issued
the 1990 Maritime Code officially recognizing the institution of maritime liens for the
first time. Later on, Vietnam issued the 2005 and 2015 Maritime Codes that maintained
the notion of maritime liens. These two codes have updated entirely all provisions
regarding maritime liens compared to the former code, in order to ensure both the
accurate nature of maritime lien and the conformity with international laws and
practices. In addition, other subordinate legal documents were issued with detailed
guidance on the implementation of Vietnamese Maritime Codes. Directly concerning
with maritime liens and their enforcement, other notable documents include Decree
No. 57/2010/ND-CP detailing and guiding the implementation of the Ordinance on
Procedures for the Arrest of Seagoing ships dated 25 May 2010 of the Government of
Vietnam, and effective as of 09 July 2010 (Decree 57) and Ordinance No.
05/2008/UBTVQH12 on Procedure for the Arrest of Seagoing Ships dated 27 August
2008 of the Standing Committee of the National Assembly of Vietnam, and effective
as of 01 July 2009 (Ordinance 05). These statutes reflected the provisions concerning
(i) nature and characteristics of maritime liens, (ii) claims on which maritime liens
may arise, (iii) the enforcement of maritime liens via ship arrest which was inherently
inspired by the 1993 Geneva Convention and the 1999 Arrest Convention. The table
below will display the significant impact of these two Conventions in national law of

11
Vietnam regarding maritime liens and their enforcement though Vietnam has not
ratified any of them (see Table 1).

Table 1: Maritime liens and ship arrest in conventional and Vietnamese laws

Corresponding
Provisions in
No. Issue provisions in
Vietnamese law
conventional law

1 Maritime lien claims Article 41 of Vietnam Article 2 of the 1999

Maritime Code 2015 Arrest Convention;

Article 02 of Ordinance Article 4 of the 1993

05 Geneva Convention

2 Characteristics of Article 40 of Vietnam Article 8 of the 1993

maritime liens Maritime Code 2015 Geneva Convention

3 Ranking and priority Article 42 of Vietnam Article 5 of the 1993

of maritime claims Maritime Code 2015 Geneva Convention

Article 6 of the 1926

Brussel Convention

4 Exercise of the right Article 13 of Ordinance Article 3 of the 1999

of ship arrest 05 Arrest Convention

5 Right of rearrest and Article 12 of Ordinance Article 5 of the 1999

multiple arrest 05 Arrest Convention

6 Release from arrest Article 14 of Ordinance Article 4 of the 1999

05 Arrest Convention

Source: Author, 2021

2.1.4. Conclusion

In conclusion, the maritime lien is a concept born as a response to the development of

shipping practice. Maritime liens primarily take their roots in Ancient Rhodian,

12
Roman, and Greek laws which was evidenced via the discovery of identical institutions
such as bottomry. The concept of maritime liens, later on, appeared in English law. In
the 17th-18th century, maritime liens were first used by the English admiralty court as
a “weapon” to compete with the common court. Later on, a comprehensive concept of
maritime was introduced by The Bold Buccleugh that is found close to what a maritime
lien is today. Referring to Vietnam, the formation and evolution of maritime liens and
their enforcement is the result of selectively applying the 1993 Brussel Convention
and the 1999 Arrest Convention in line with internal conditions.

2.2. Nature and characteristics of maritime liens

2.2.1. Civil law approach

With respect to the nature of maritime liens, it should be first and foremost noted that
such major maritime states in the civil law system as France, Italy, Belgium, and Spain
have ratified the uniform rules of the International Convention on Liens and
Mortgages. However, both Germany and Greece are not members of these
Conventions. Instead of that, they apply national rules of conflict to deal with the issue
of recognition of maritime liens.

Germany applies the lex causae to determine the existence of maritime liens and lex
fori to determine the ranking4. The aim of the lex causae is to provide legal certainty
for the creditor of seagoing vessels. Accordingly, the creditors can easily predict how
their maritime-lien-secured claim is treated in German law by considering the law of
the country where the contract was formed or the tort occurred (Schmidt-Vollmer, B.,
2003). The result of this principle is that Germany may accept such foreign maritime
liens that are out of the conclusive list provided under Article 596(1) of
Handelsgesetzbuch (German Commercial Code or HGB) as long as the lex causae
confers them. For instance, maritime liens for necessaries under US law may be
recognized by the German courts though German law does not allow this type of lien.

4
Einführungsgesetz zum Bürgerlichen Gesetzbuche, Artikel 45(2). (Introductory to the Civil Code,
Article 45(2)). The English translation of the EGBGB was provided by Federal Ministry of Justice
and Consumer Protection at: https://www.gesetze-im-internet.de/englisch_bgbeg/englisch_bgbeg.pdf

13
The deviation from the conclusive list of German maritime liens was severely
criticized because the acceptance of foreign maritime liens, especially for necessaries,
by German courts caused German suppliers to suffer from a competitive disadvantage
(Schmidt-Vollmer, B., 2003). When the German maritime law was reformed in 2012,
the legislator did not solve the debate surrounding Article 45(2) because they neither
excluded maritime lien for necessaries from recognition nor provided a lien for
domestic bunker suppliers to erase the disadvantage. With respect to ranking, if the
foreign lien is not found equivalent to any of the liens prescribed in German law, that
lien shall rank after mortgages.

Under Greek law, Article 9 of the Code of Private Maritime Law (CPML), the law
governing property right upon the vessel are governed by the lex navis. The court shall
accept the foreign maritime liens if they are conferred by the law of the flag. However,
their ranking is a procedural matter, therefore, subjected to the lex fori. In general, the
reasoning behind the application of lex navis is that it is connected to the situs of the
vessel (Athanassiou, L., 2018). To a certain extent, nevertheless, this approach is
criticized because the flag of the ship does not always indicate the genuine link of the
vessel to the jurisdiction. Parties can easily participate in flag shopping as forum
shopping.

With respect to the characteristics, it identically appears in German and Greek law that
a maritime lien is a privileged right attached to the ship in order to secure a conclusive
statutory list of maritime claims. Maritime liens do not need registration to establish
their validity. Maritime liens travel secretly with the ship maritime liens and exist
without connection to the possession of the property. (Sotiropoulos, P., 1987;
Göretzlehner, E., 2019).

2.2.2. Common law approach

a) Nature of maritime liens

English law is of the dominant view that maritime liens constitute a procedural matter
decided by the lex fori. (Davies, M., 2018). The result of this approach is that the
existence and ranking of foreign a foreign maritime lien shall be decided by the lex

14
fori. The English law only accepts those foreign maritime liens that are found
equivalent in English law (Jackson, D., 2005) Actually, this school of thought was
implied in the Bold Bucceugh case where a maritime lien was acknowledged to be
enforced via action in rem. Later on, the introduction of the Halcyon Isle
accumulatively endorsed this view to be dominant in English law (Jackson, D., 2005).
In this case, a British-flagged ship which registered a mortgage under English law was
repaired at a shipyard in New York. Pursuant to the United States law, the ship
repairers were granted a maritime lien. Later on, the ship was arrested in Singapore
and subjected to judicial sale. However, the fund collected from this proceeding was
not sufficient enough for the creditors. The shipowners decided to take their case back
to an English court to seek a new judgment on the precedence of their rival claims
against the mortgagees. The majority of the Privy Council regarded the maritime liens
attached to the underlying claim as a security privilege, which was considered a
procedural matter5. However, the ratio decidendi in these two cases was severely
criticized for not taking into account the substantive perspective of the maritime liens
reflected in the dissenting opinion of Lord Salmon and Lord Scalman6. This is because
the maritime lien has been historically considered as a substantive right and the fact
that it is enforced via action in rem is not persuasive enough to perceive that the
maritime lien is only concerned with the procedure (Jackson, D., 2005). Inherently,
the application of lex fori to determine both the existence and ranking of maritime liens
is a straightforward solution for both the court and maritime lien holder though it is
not consistently linked with the essence of maritime liens (Triskogiannis, A., 2019).
Accordingly, thanks to the lex fori, the court can easily discover among others if the
foreign maritime liens are accepted in English law through which crystallizing the
jurisdiction (Mandaraka-Sheppard, A., 2001). Hence, the lienors may take advantage
of this approach because, at the time of ship arrest, they possibly recognize potential
competing maritime lien claims in English law (Triskogiannis, A., 2019). However,

5
Bankers Trust International Ltd. v Todd Shipyards Corporation (The Halcyon Isle) [1981] AC 221
(PC).
6
Bankers Trust International Ltd. v Todd Shipyards Corporation (The Halcyon Isle) [1981] AC 243
(PC).

15
this approach completely excludes the involvement of international law which is
considered against the whole endeavor of unifying a global legal standard for shipping
practice.

In contrary to English law, though in principle a common law country, the United
States takes an opposite approach when regarding a maritime lien as a substantive
matter (Tetley, W., 2002). The result of this substantive theory is that the Court will
apply the lex causae to determine the existence of a maritime lien, whilst the ranking
of a claim secured by a maritime lien follows the lex fori rule. Though following the
lex cause for the recognition of foreign maritime liens, the US admiralty courts’
practices have revealed a different point of view in terms of selectin applicable law
that totally differs in two following scenarios: (i) the lex cause as applicable law
confers a maritime lien and (ii) the lex cause does not confer a maritime lien. The first
scenario could be found in the Oil Shipping v Sonmez Senizcilk7 in which whether a
claim by a Turkish necessaries supplier would take priority over an English mortgage.
The lex causae pointed out that the supplier is protected by a maritime lien under
Turkish law8. It can be seen from the first overview that the US court applied foreign
law to render a privilege that is not accepted in its jurisdiction but provided by the lex
causae. However, in the second scenario, the Court was of the view applying local law
to determine the existence of a maritime lien that was reflected in the Rainbow Line9.
In this case, a vessel flying a Liberian flag was arrested in New York and the viral
claims included (i) salvage reward in Honduras; (ii) an infringement of a time charter;
and (iii) mortgage-secured credit agreement in favor of a Liberian bank. At the
moment the time charter was infringed, the ship was registered under the British flag.
The issue arose whether the Court recognized a maritime lien attached to the claim
under the New York Produce Exchange Time Charter Party. The Court figured out
that the lex causae, in this case, was English that did not allow this claim to be secured

7
Oil Shipping (Bunkering) B.V. v Sonmez Denizcilik Ve Ticaret A.S. 10 F.3d 1015 (3d Cir. 1993)
8
Ibid.
9
Rainbow Line, Inc. v. M/V Tequila, 341 F.Supp. 459 (S.D.N.Y. 1972)

16
by a maritime lien. However, the Court with the corporation of the Lauritzen test10
decided to apply its local law (US law) for recognizing a foreign maritime lien instead
of denying it as British law (lex causae). Accordingly, in light of the Lauritzen test,
the Court evaluated the correlation of the disputed legal nexus with the law of the
United States via examining several factors, such as (i) where the wrongful act took
place; (ii) the ship’s flag; (iii) the habitual address of the injured party and the
shipowner; (iv) where the contract was signed; (v) where the shipowner’s business
operates; (vi) the inaccessibility of the foreign forum; and (vii) the lex fori. After that,
the Court interestingly distinguished the law applicable to the charterparty from the
maritime lien. The reason behind this adventurous decision was that a maritime lien
also impacts the rights of the third party, therefore, the law of the contract does not
compulsory govern the maritime lien but the performance of the contract. Therefore,
after realizing that the English law did not confer a lien, the Court regarded US law as
the law governing maritime lien. From the aforementioned argument, it seems that the
US Court tends to expand the scope of application of maritime liens, especially in such
case the lex cause does not grand a lien but the US law both likely becomes the
applicable law and accept that lien.

b) Characteristics of maritime liens

In English law, a maritime lien is a privilege adhering to maritime property in order to

secure an underlying claim as set forth by the operation of law (Mandaraka-Sheppard,
A., 2007). The unique feature of maritime liens is reflected when comparing to
mortgages. Accordingly, maritime liens are created by law and valid without
registration. In contrast, a mortgage is established based on mutual agreement in a
form prescribed by statute and takes its effects against a third party once it is registered
(Mandaraka-Sheppard, A., 2007). Hence, maritime liens exist without connection to
the possession of the property. This is a feature that distinguishes maritime liens from
a possessory lien that is able to be triggered only when the two following conditions

10
Lauritzen v. Larsen [1953] 345 U.S. 571

17
are met: (i) the actual possession of the creditor and (ii) the existence of the lienee’s
consent (Hutton, N., 2004). A possessory lien shall be lost if either the property is
transferred to a third party or the lienholder loses possession of the property even
temporarily. In contrast, a maritime lien arises automatically regardless of the
possession of the property falling in the hand of the lienor. A maritime lien attaches to
the vessel like “a leech to human skin” (Hill, C., 2014) and shall not lose even when
the vessel is sold to a bona fide purchaser.

Similar to English law, maritime liens in US law stay secret and could be enforced
without registration (Peck, S., 2013). Note further that, there are two kinds of maritime
liens in US law, namely preferred liens and necessary liens. With respect to ranking,
preferred maritime liens stand before mortgage while necessary liens stand behind
both preferred maritime liens and mortgage. However, case law allows one exception
for this provision in which the necessary repair or services rendered to the ship is
provided to maintain the value of the ship. In that case, the necessary lien shall stand
before the ship mortgage though it attaches to the ship after ship registration of the
mortgage11.

2.2.3. International unification

So far, the international community has introduced three instruments regarding

maritime liens and mortgages which are the 1926 Brussel Conventions, the 1967
Brussel Convention, and the 1993 Geneva Convention. In the light of three
conventions on maritime liens are referred to as security for preferred claims against a
ship due to the services given to her or damage done by her which could be found in
Article 2 of the 1926 Brussel Convention or Article 4 of the 1993 Geneva Convention.
Maritime liens stand before ship mortgages that were prescribed in Article 3 of the
1926 Brussel Convention and Article 5 of the 1993 Geneva Convention.

2.2.4. Vietnamese law approach

11
N.Y. Dock Co. v. S.S. Poznan [1927] AMC 727.

18
Regarding the nature of maritime liens, it seems that Vietnam takes a similar approach
to US law in terms of distinguishing the law governing the disputed relationship from
the maritime liens. Accordingly, the rules applied in order to determine applicable law
to the disputed relationship are provided under Article 3 of the 2015 Maritime Code
based on several factors that are found analogous to the Lauritzen test in US law.
Regarding the recognition of maritime liens, Vietnam follows the lex fori principle.
Pursuant to section 1 Article 13 of Ordinance No. 05/2008/UBTVQH12 on the
procedure for the arrest of seagoing ships (Ordinance 05), one of the conditions for the
arrest of a ship is the existence of at least one statutory maritime claim. In other words,
court jurisdiction is determined based on the existence of maritime claims. If the
maritime claim (including maritime-lien-secured claims) does not fall within the scope
of Vietnamese law, the court will not accept the enforcement request.

In addition, notable characteristics of maritime liens in Vietnamese law are identical

to those prescribed in common law, civil law, and international conventions. Article
40 of Vietnam Maritime Code 2015 provides that maritime liens are privileges that
secure maritime claims arising in connection with the vessel and take priority over
other forms of security, including ship mortgages. In addition, this privileged nature
of maritime liens is not shaken by the sale of a ship to a third party because they also
take priority over the interest of a bona fide purchaser without notice. Unlike ship
mortgage establishing effectiveness through registration, maritime liens take effect
without formality.

2.2.5. Conclusion

It is commonly accepted among national laws and conventional law about

characteristics of maritime liens. A maritime lien is a privileged right attached to the
ship secretly in order to secure certain maritime claims. Maritime liens do not need to
register in order to establish their validity. However, with respect to the nature of
maritime liens, there are two schools of thought among common law and civil law
countries. Though in principle of common law system, England treats maritime liens
as a procedural aspect while US law regards maritime liens as a substantive matter.

19
Germany and Greece also follow the substantive theory in recognition of foreign
maritime liens. Referring to Vietnam, Vietnam is resembling English’s approach in
terms of determining the existence of foreign maritime liens by the application of the
lex fori.

2.3. Claims to which maritime liens may attach

2.3.1. Civil law approach

Regarding German law, section 596(1) of HCG contains a conclusive list of claims
that gives rise to maritime liens, namely: (i) wages due to the master and seafarers (ii)
public charges such as vessel dues, port, canal, and other waterway dues; and pilotage
dues; (iii) compensation for loss of life, personal injury, or loss of or physical damage
to property; (iv) salvage reward, special compensation, and the costs of salvage, claims
against the owner of the ship and the creditor of the freight for contribution in general
average; claims for wreck removal; (v) claims of the social security authorities against
the shipowner of the ship and the creditor of the freight for contribution in general
average, wreck removal; (vi) claims to the social security authorities the shipowner,
including unemployment insurance claims. It should be noted that this list is fixed
which does not allow the creation of any maritime liens either by another statute or
contract (Schmidt, K., 2014).

Regarding Greek law, Article 205 of the PMLC prescribes four groups of maritime
claims as follows: legal costs incurred in the common interest of the creditors, dues,
and charges on the ship, taxes in connection with navigation, and the costs of
supervision and preservation from the time the ship enters the last port; claims arising
out of the contracts of employment of the master and crew, and also charges of
Seamen’s Pension Fund consequent upon their engagement; expenses and
remuneration due on account of assistance at sea, salvage and refloating;
compensation owed to ships, passengers and cargo because of collision of ships. Last
but not least, Greek law does not accept maritime liens for necessaries (Sotiropoulos,
P., 1987).

2.3.2. Common law approach

20
It is English precedents and customs, not maritime law that has built up five claims to
which maritime liens may attach (Jackson, 2005; Schmidt-Vollmer, 2003) which are:
(i) claim regarding damage resulting from a collision12; (ii) bottomry and respondentia;
(iii) salvage claim13; (iv) claim of seafarers’ wages14 and master’s disbursement (Hill,
C., 2014). With respect to maritime liens for bottomry, it has been no longer presented
before Admiralty Court for many years. With respect to the wages of the ordinary crew
and the master, these two claims were dealt with separately and their merger came
only in 1995 when the wages of crew and master were codified as the only maritime
liens in section 41 of the Merchant Shipping Act 1995. Last but not least, English law
does not accept necessary liens15.

With respect to US law, maritime liens are provided under Chapter 3, Title 46 of the
United States Code. US maritime law separates two categories of maritime liens,
namely preferred maritime liens and maritime liens for necessaries. The preferred
maritime liens are provided under 46 U.S.C. § 31301 (5) in the form of a conclusive
list like German or Greek law, including (i) damage arising out of the maritime port;
(ii) wages of a stevedore when employed directly by the owner, the master, the vessel
manager or an officer or agent appointed by the owner, charter, an owner pro hac vice
or an agreed buyer in possession of the vessel; (iii) wages of the crew of the vessel;
(iv) for general average; and (v) salvage, including contract salvage. It should be noted
further that, the US Admiralty courts are entitled to “recognize new forms of maritime
liens as circumstances warrant” (Tetley, W. 1998) which used to be established in the
case of Exxon Corp. v. Central Gulf Lines Inc in which the Supreme Court declared
that advances made by the ship’s agent could be subject to a maritime lien16. With
respect to maritime liens for necessaries, the history of this class of liens can be traced
back to the Federal Maritime Lien Act 1910 that provided a general definition of
maritime liens inherently allowing the Court to broaden the scope of maritime liens

12
Berliner Bank AG v Czarnikow Sugar Ltd (The Rama) [1996] 2 Lloyd’s Rep. 281.
13
The Two Friends [1862] 167 E. R. 249.
14
Berliner Bank AG v Czarnikow Sugar Ltd (The Rama) [1996] 2 Lloyd’s Rep. 281.
15
Northcote v Owners of the Heinrich Bjorn (The Heinrich Bjorn) [1885] 10 P. D. 44; Bankers Trust
International v Todd Shipyards Corp (The Halcyon Isle) [1980] 3 All E. R. 197.
16
Exxon Corp. v. Central Gulf Lines, Inc. [1991] 500 U.S. 603.

21
(Hayden, R., & Leland, K, 2005). The contractual maritime liens for necessaries under
46 U.S.C. § 31301 (4) with four manners, namely “repairs, supplies, towage, and the
use of a dry dock or marine railway”. According to 46 U.S.C. § 31342(a), the maritime
liens for necessaries are “provided to a vessel”. This requirement causes legal
problems when it comes to container leasing, which is considered as necessary for
vessels (Schmidt-Vollmer, 2003). This is because the delivered containers are
seldomly assigned to just one specific container vessel which leads the courts to deny
the fulfillment of the requirement of “provided to vessel”.

2.3.3. International unification

To begin with, in light of the 1926 Brussel Convention, maritime liens are divided into
two categories. The first category as set forth in Article 2 is composed of five classes
of liens that must be accepted before the court of any contracting states, including (i)
legal costs and expenses of preserving the vessel during the period in which she is in
the custody of the court; (ii) wages of master and crew; (iii) salvage, general average;
claims for collision and damage to harbours and canals, personal injury and damage
to cargo; (iv) and supplies, repairs and master’s disbursements (necessary liens). The
lienors in this category shall enjoy two priorities over any ordinary creditors which are
the right to chase the vessel and exercise the maritime lien against the vessel though it
is passed into the hands of another purchaser and the preference right over mortgagees.
In addition, Article 3 of the 1926 Brussel Convention provided that priority among
such first category maritime liens is in line with the order as set forth in Article 2. This
demonstrates that, for instance, maritime liens on salvage and bottomry stay at the
highest position in five categories prescribed in Article 2. If the fund of the ship sale
process is not sufficient enough to cover all claims, the lienors shall receive
compensation with order enumerated in Article 2, and with respect to such lien on the
same group, the lienors shall receive compensation at pari passu basic. The second
category as set forth in Article 3 of the 1926 Brussel Convention shall include any
other liens than those listed in the first category prescribed by national law of
contracting states. However, those maritime liens shall stay behind the registered
mortgage.

22
Thus, the 1967 Brussel Convention provided five similar groups of maritime liens
compared to the 1926 Brussel Convention except for the removal of maritime liens for
necessaries or master’s disbursements. The ranking and principle to distribute
maritime-lien-secured claims were inherited from the 1926 Brussel Convention. It can
be seen that the 1967 Brussel Convention was formed based on a failed model while
its ambition was to revise and update that failed model. That was probably perceived
as the reason why the 1967 Brussel Convention never took into effect.

The 1993 Geneva Convention was introduced as a result of the endless endeavor of
the international community in terms of unifying international law for the maritime
sector, especially, ranking of claims (Pellergino, F. 2017). Accordingly, Article 4 of
this Convention acknowledges five types of claims including (i) claims for wages; (ii)
claims for loss of life or personal injury; (iii) claims for reward for the salvage of the
vessel; (iv) claims for port, canal, and other waterway dues and pilotage dues; (v)
claims based on tort arising out of physical loss or damage.

Compared to the 1926 Brussel Convention, such claims prescribed under Article 2
section 1 of this Convention were excluded from the 1993 Geneva Convention. The
reason for this approach is that the later Convention aimed to facilitate the traditional
main source of ship financing (ship mortgage) (Berlingieri, 2011).

Compared to the 1967 Brussel Convention, claims regarding wages have been
expanded to include the cost of the repatriation and social insurance contribution. The
repatriation cost was supplemented to tackle the problem of abandonment of seafarers
when the shipowners or operators go bankrupt.

Unlike the 1926 and the 1967 Brussel Conventions, the 1993 Geneva Convention does
not accept claims for necessaries contracted by the master as a maritime lien claim
which is probably reasoned via two grounds. First, it is truly difficult to determine and
secure the necessity of that transaction to the preservation and operation of the ship,
especially when the ship is at a foreign port. Second, the shipowners nowadays can
directly enter into the contract which they find essential to their ships thanks to the
development of technology and the internet.

23
In addition, the claims on wreck, removal, and general average have been excluded
because they are now obsolete. Obviously, these practices were common in ancient
times when technology was less developed, therefore, ships might be easily sunken at
sea due to heavy storms. In modern time, these accidents have become rare. However,
the 1993 Geneva Convention leaves room for national laws to regulate this matter. In
that case, this type of claim shall prevail over such maritime lien claims set out in
Article 4.

Moreover, Article 6 of the 1993 Geneva Convention allows each contracting state to
regulate other national maritime liens, however, they will be extinguished after six
months unless the ship is arrested leading to a forced sale of that ship. Compared to
the 1926 Brussel Convention, the period of national maritime liens is 6 months.

Last but not least, Article 5.2 of the 1993 Geneva Convention tends to protect salvage
practice by acknowledging that claims on salvage shall take priority over all other
maritime liens happening prior to the salvage operation.

2.3.4. Vietnamese law approach

In Vietnamese law, Article 41 of the Maritime Code 2015 provides the types of
maritime claims that give rise to maritime liens, namely: (i) claims for wages,
repatriation cost, social insurance contributions, and other amounts due to master,
officers, and other members in a seagoing ship’s complement; (ii) claims for indemnity
for loss of life, personal injuries, other health damage directly related to seagoing
ship’s operation; (iii) claims for tonnage dues, maritime safety assurance dues and
other port dues and charges; (iv) claims for salvage remuneration; and (v) claims based
on tort arising out of property loss and damage directly caused by the operation of
seagoing ships17. It can be seen that Article 41 is the resemblance of Article 4 of the
1993 Geneva Convention.

Article 42.1 of Vietnam Maritime Code 2015 states that priority among five categories
of maritime liens is in line with the order set forth in Article 41 above. This means

17
Official English translation provided by Vietnam News Agency.

24
that, for instance, seafarers-related claims stay at top of priority. Probably there are
two reasons behind the fact that Vietnamese laws choose to favor seafarers. The first
is to ensure social stability especially important in the context of two crowded
population states in which a seafarer is considered as a major force. The second stems
from the role in the preservation of the ship that seafarers have.

2.3.5. Conclusion

To sum up, it seems that each country shall have its rationale regulating claims on
which maritime liens arise and the priority among them. However, there is one similar
feature among these countries which is the maritime liens for wages, salvage with their
range is nearly analogous. England, Germany, Greece, and Vietnam are on the same
page of providing a conclusive list of claims that give rise to maritime liens. Extra
maritime liens shall not be able to be supplemented by other statutes or agreed by
contract. Hence, these four countries do not allow liens for necessaries. This approach
can be found in the 1993 Geneva Convention as well. In contrast, US law takes a
different approach when accepting maritime liens for necessaries.

2.4. Property to which maritime liens may attach

2.4.1. Civil law approach

With respect to German law, Section 598 of HGB considers maritime lien as non-
possessory liens on the ship and its accessories. This provision actively demonstrates
that ship and its accessories are the property to which a maritime lien may attach.

With respect to Greek law, Article 205 of PMLC provides that maritime liens attach
to both ships and the outstanding gross freight of the voyage during which the lien
arose. The Greek maritime liens secure not only the principal amount of the claim but
also interest and legal cost paid by the claimant for the purpose of claim enforcement.

2.4.2. Common law approach

With respect to English law, Section 21.3 of the Supreme Court Act 1981
acknowledges “ship” and “other property” including cargo and freight as properties
subjected to maritime liens by providing as follows:

25
“In any case in which there is a maritime lien or other charges on any ship, aircraft
or other property for the amount claimed, an action in rem may be brought in the High
Court against that ship, aircraft or property.”

Regarding “ship”, under Section 24(1) of the Supreme Court Act 1981, a ship
“includes any description of vessel used in navigation”. The verb “includes” coupled
with the fact that Section 24(1) only defines a “ship” without defining a “vessel” imply
that another definition of a ship shall be found in other concerned laws, for instance,
the Merchant Shipping Act 1894 (Berlingier, F., 2015). However, it seems that the
definition of a ship once again became a vicious circle when section 742 of the
Merchant Shipping Act 1894 was structured in the manner of vessel referring to ship
and vice versa (Sheppard, M., 2007). The notable characteristic of a ship in this
definition is “used in navigation” which was narrowly interpreted as free and ordered
movement from one place to another and transporting persons or property by water to
an intended destination (Gauci, M. G., 2016).

Regarding US law, the understanding of maritime liens provided in The Halcyon Isle
is commonly accepted in US law because Chapter 313, Title 46 of the United States
Code fails to manifest a proper definition of maritime liens. Accordingly, a maritime
lien is illustrated as “ right of property in a ship adhering to it whether it may go,
vesting a right in the person who claims is thereby secured, […]”18. From this
definition, it can be seen that ship is the property that US maritime liens attach to.

2.4.3. International unification

Article 2 of the 1926 Brussel Convention provided that maritime liens shall attach to
a vessel other than warship or State-owned ships, the freight for the voyage during
which the claim giving rise to the lien arises, the accessories of the vessel and the
freight accrued since the commencement of the voyage. This provision actively
demonstrated that, in the context of the 1926 Brussel Convention, maritime lienors
receive more protection than mortgagors leading to the fact that this Convention was

18
Bankers Trust International v Todd Shipyards Corp (The Halcyon Isle) [1980] 3 All E. R. 197.

26
adopted by a few States and the international community had to prepare another
revised treaty.

According to Article 13(1) of the 1993 Geneva Convention, maritime liens attach to
the sea-going vessel. So far, this concept has been incorporated in many international
treaties in the maritime domain such as the 1924 Limitation Convention, the 1957
Limitation Convention, or the 2001 Bunker Oil Convention.

2.4.4. Vietnamese law

Different from English law and Greek law, Vietnam Maritime Code 2015 only
recognises sea-going ships as property subjected to maritime liens which are
determined via Articles 4.1 and 13. Accordingly, the notion of a sea-going ship is
determined via its type, design, specific purpose, and location of operation. With
respect to type and design, a ship can be built to either transport above or under the
water with or without the assistance of the engine. Hence, the ship must be specially
designed for its operation at sea. Last but not the least, a sea-going ship is entirely
commercial-related meaning that any military ships, official duty ships, fishing ships,
inland watercraft, submarines, hydroplanes, floating storages, and offloading units,
movable offshore units, and floating docks shall not be attached to Vietnamese
maritime liens.

2.4.5. Conclusion

To sum up, there is not too much difference in the view of national law regarding
property subject to maritime liens. Inherently, a ship is recognised by many countries
as the property on which maritime liens attach. Besides ships, maritime liens can attach
to other properties such as cargo and freight in English law or only freight in Greek
law or ship’s accessories in German law.

The determination of property on which maritime liens may enforce is a crucial matter
because this task directly impacts the legitimate rights of related entities. In addition,
the determination of property subjected to maritime liens shall obviously answer which
and how property shall be enforced once maritime claims are not satisfied. Of note,
each state has its own approach to regulate this matter depending on its corresponding

27
public policy. English law tended to provide a circular definition of ships subjected to
maritime liens and mostly relies on precedents in order to identify the objects of
maritime liens. Vietnam shares a similar approach of governing ship which is also
found as the spirit of the 1993 Geneva Convention.

Chapter 3. Enforcement of maritime liens

In general, it is concluded that there are three aspects related to the enforcement of
maritime claims, namely the interim remedy aspect, the jurisdictional aspect, and the
security aspect (Jackson, D. C., 2005). In essence, certain types of maritime claims
trigger maritime liens, therefore, these three aspects will obviously apply to a maritime
lien as well. However, for the purpose of this Dissertation, this Chapter shall only
focus on the jurisdiction aspect which refers to the enforcement of a maritime lien. In
theory, a party seeking action in order to vindicate a maritime claim can resort to the
following actions.

3.1. Action in rem

3.1.1. Procedural theory of action in rem

The procedural theory of an action in rem in English admiralty law could be traced
back to the eighteenth century when an action in rem was regarded as a means of
enforcement in order to either summon the defendant’s presence or to seize the
defendant’s ship if the defendant’s satisfaction was not available (Jackson, 2005). In
light of case laws, Lord Jeune J. marked the procedural view in the Dictator19 which
later on was strongly supported by the courts. After that, the procedural theory was
officially acknowledged in English law which was provided in section 21(3) of the
SCA1981 as below:

“In any case in which there is a maritime lien or other charges on any ship, aircraft
or other property for the amount claimed, an action in rem may be brought in the High
Court against that ship, aircraft or property.”

19
The Dictator [1892] P. D. 304.

28
To a certain extent, the procedural view is not fully consistent with the figures of
maritime liens especially from an enforcement perspective because this theory fails to
answer why a maritime lien can be enforced against a bona fide purchaser without
notice via action in rem (Göretzlehner, E., 2019). Despite this wonder, the English
courts still uphold procedural theory as a guiding principle (Jackson, 2005).

Theoretically, an action in rem in English law composes of two phases, including the
service of a claim form and the execution of the service via arrest of the ship identified
in the in rem form. It is noted that, based on Part 61.3 of the English Civil Procedure
Rule (PCR), the claimant shall submit his/her in rem claim in the statutory form within
12 months after the date of issue. Part 61.3 requires brief details of the claim to be
provided in the section “Particulars of Claim” or this section may be attached or
produced later. With respect to the execution of in rem form, Part 61.5 of the PCR
states that the arrest of the vessel is conducted via the issuance of the warrant of arrest
on the named ship by the Admiralty Marshal or his/her substitute. The form of ship
arrest is set forth in Admiralty Form ADM 9 and valid in 12 months. In association
with the application to arrest, a Declaration as set out in Admiralty Form AD5 must
be attached to identify the ship to be arrested concerning if it is a sister ship, beneficial
ownership, and the amount of security the claim.

From the procedural theory perspective, an action in rem has seven features that were
characterised in the Indian Grace case (No.2) and fully explained by S. C. Derrington
as follows (Derrington, S. C., 2007): First, transfer of ship shall be stopped once the
claim form has been issued; Second, unless the law explicitly otherwise permits, an
action in rem is only brought against the vessel in connection with which a claim
arises; Third, when the shipowner appears before court to defend the ship against the
action in rem, the action shall proceed as if in personam. This approach actively
demonstrates that at the time of enforcement, if the value of the ship is not sufficient,
other available property of the shipowner shall be enforced to fully pay the maritime
lienholder; Fourth, action in rem proceeding reasonably balances rights and interest of
involved parties by allowing mortgagees to participate in the proceeding; Fifth, an
arrest order of a ship shall be issued either before or after the judgment as long as the

29
claimant pays financial security for that request; Sixth, the ultimate consequence of an
action in rem is the forced sale of a ship, then the fund collected shall be paid to any
outstanding maritime lienor in accordance with statutory priority; Seventh, action in
rem judgment is independent from action in personam judgment. That feature is
consistent with English law that distinguishes procedural matters (action against the
res) from substantive matters (merit of the case solved by action in personam).

3.1.2. Personification theory of action in rem

The personification theory concerning the nature of an action in rem is a cornerstone

of the United States admiralty practice (Corcione C., 2013). In the light of this theory,
the res is treated as the defendant (Wiswall, F. L., 1970) even when the shipowner
appears, he/she is still not considered as the defendant (Price, G., 1940). The action in
rem in the light of this theory is taken “against a ship irrespective of her present
ownership and irrespective of any link with liability in personam on the part of the
owner of the ship at the time the claim is brought” (Meeson, N., 2003). This theory
can be traced back to The Little Charles20 case in which Chief Justice Marshall
concluded that the vessel committed the offence.

Frank Wiswall is one of the American scholars who strongly supports the
personification theory because of two reasons: First, action in rem is an enforcement
regime of a maritime lien, therefore, the approach of this regime must logically and
consistently be linked to the nature of maritime lien; Second, a maritime lien travels
with and imposes upon the ship (the res) even if the shipowner does not bear
responsibility at the time the maritime lien was established. It is the ship, not the
shipowner, that becomes the final destination of the claim holders (Corcinone, C.,
2013). Another interesting feature of this theory is that the ship is possibly enforced
for various types of claims, not only maritime liens but also mortgages, claims for
forfeiture, to claims to possession (Corcione, C., 2013).

20
United States v. The Little Charles, 26 G. Cas. 982, 1 Brock. 380 (1819).

30
The personification theory is the biggest difference between US law and English law
in terms of enforcement of maritime liens though the former did take root from the
latter. At the present moment, only the USA as a major jurisdiction still adheres to the
personification theory that directly opens the way for enforcement of a maritime lien
against the ship (Davies, M., 2001). The personification theory is regarded as the
justification why a maritime lien does not extinguish if the ship is sold out of court
resulting in the fact that the lienholder is allowed to request the enforcement against
the new purchaser of the ship (van de Biezenbos, K., 2015).

To a certain extent, this theory has its own rationale in terms of approaching and
solving issues of maritime lien enforcement, especially based on the unique nature of
maritime lien. However, the personification theory still has certain shortcomings in
terms of comprehensive protection of maritime lienholders. Accordingly, the ship is
taken to be an independent entity, she will liable by herself for any compensation
claimed (O’Connor, J. G., 2019). In order to avoid that, the maritime lienor must both
trigger an action in rem against the ship and an action in personam against the owner
at the same time. However, this is not a comprehensive solution because for obtaining
compensation, the claimant has to proceed with two separate proceedings that require
various burdens from proof, legal fees, and so on. Therefore, these shortcomings
probably answer why the United States of America has been virtually alone way
regulating action in rem while other states have repudiated it (Thomas, J. Schoenbaum,
2004).

3.2. Action in personam

Different from action in rem, action in personam is the proceeding used to enforce a
claim by compelling an individual or legal entity to act or cease from acting (Jackson,
D. C., 2005). The object of an action in personam is a person either natural or legal in
lieu of a res in action in rem.

In civil law countries where the action in rem is not officially acknowledged, the
enforceability against the shipowner is an alternative resort. The typical procedure
shall consequently take place via a lawsuit against the defendant together with a writ

31
of ship arrest in order to obtain pre-judgment security. The notable obstacle to the
claimant is when both parties are not in the same jurisdiction not to mention the fact
that the ship does not tend to be anchored most of the time but move between
jurisdictions (Hill, C., 2014). The legislators from civil law countries fully understand
this weakness, therefore, action in personam is not constructed alone but accompanied
with the arrest of a ship as an interim measure. However, in case the defendant appears
before the court, action in personam certainly outweighs action in rem in terms of
scope of assets to be enforced. Accordingly, other assets besides the ship of the
defendant shall be brought into the civil judgment enforcement phase in order to ensure
all claims are satisfied.

3.3. Quasi action in rem

Quasi action in rem is a result of the US admiralty practice that combines certain
characteristics of both action in rem and action in personam. Quasi action in rem takes
place via an attachment of property based on the theory of personal liability of the
owner of the property in order to force the defendant to appear before the court (Force,
R., 2004). According to Federal Rules of Civil Procedure, quasi action in rem is
commenced in accordance with Rule E as a combination of Arrest proceedings set out
in Rule C and Attachment proceedings set out in Rule B.

Under Rule B, a claimant may seek attachment of any property of the defendant who
is not found in the district, including vessels, tangible property, bank account, and debt
owed by others regardless of such property is agreed to be secured for the claims or
not. Under Rule C, a maritime lien against a vessel or other property in rem must be
present in the Arrest Warrant in order to request for enforcement. Any property subject
to a maritime lien may be subjected to arrest, which are vessels, freight, bunkers, and
vessel equipment. This provision clearly points out the difference between Rules B
and C that is the governed property which as long as belongs to the defendant pursuant
to Rule B, nevertheless, must be exercised against by a maritime lien in accordance
with Rule C.

32
In case quasi action in rem is applied, the procedure shall be the combination of both
Rules B and C which means a claimant is allowed to serve an Arrest Warrant to arrest
the property (i.e. a vessel) subjected to maritime lien together with a Writ Attachment
in order to attach any property of the defendant. Technically, quasi action in rem is a
powerful tool in terms of enforcing maritime liens, however, it impacts other
concerned entities especially other creditors if the framework for quasi action in rem
is not well prepared and monitored. This is probably the reason why so far only the
United States selects this regime.

3.4. Arrest of ship

Ship arrest is a process conducted by the court having jurisdiction over maritime
claims that can either be specified to Admiralty court in common law countries or
ordinary civil court in civil law countries. In theory, the law governing the procedure
of ship arrest is the lex fori, and only a ship within territorial waters of a state receiving
an arrest warrant is possibly arrested (Thomas, R., 2019). Ship arrest is carried out for
many purposes, including enforcing a civil judgment, executing a provisional regime,
and enforcing a maritime claim. However, for the purpose of this section, ship arrest
shall be analyzed in the role of an enforcement regime of maritime liens.

In Vietnamese law, ship arrest as an enforcement means of maritime liens is

acknowledged in Article 40.3 of Vietnam Maritime Code 2015. With respect to
procedure, ship arrest is provided in Chapter 2 of Ordinance 05/2008/UBTVQH12 on
the procedure for the arrest of seagoing ships dated 27 August 2008 of the Standing
Committee of the National Assembly of Vietnam, and effective as of 01 July 2009
(Ordinance 05). The procedure will initiate with an application for ship arrest. The
competent court is usually the court with local jurisdiction of the port where the ship
is anchoring. The application for ship arrest must be presented to the court in
Vietnamese together with prima facie evidence as to the maritime claim. The success
of the application heavily depends on the detail and accuracy of the supported
evidence. Besides submitting the application supported with evidence for a request of
ship arrest, the arrestor is obliged to provide a counter-security in the form of either a

33
bank guarantee or an amount of money, precious metal, gem, or negotiable instrument
with the value determined by the court to be equal to the loss or damage possibly
caused by the wrongful arrest. Once the arrestor fully implements all legal and
financial obligations, the Court shall issue the decision of ship arrest then handing to
the director of the port where the ship is berthing for execution. The order of ship arrest
shall be lifted after 30 days. Last but not least, Article 12 of Ordinance 05 provides
that the maritime lienor can choose to arrest the particular ship of which the claims
arose and any other ship which is owned by the person who was, at the time when the
maritime claim arose, the owner of the particular ship. This provision represents the
accumulative right to arrest of ships set forth in the 1999 Arrest Convention.

3.5. International unification

It is said that the law of ship arrest is intertwined with the notions of maritime liens
because regardless of any form of enforcement of maritime liens the State may choose,
the proceedings will end up with ship arrest. In addition, the connection between
maritime liens and ship arrest is proved via the fact that the 1952 Ship Arrest
Convention and the 1999 Ship Arrest Convention have recognized the exercise of ship
arrest in connection with maritime lien claims. With the scope limited to ship arrest,
these two Arrest Conventions have been expected to create a bridge between common
law and civil law in terms of admiralty law and procedure (Thomas, R., 2019).
However, these two conventions have not successfully performed that goal which shall
be discussed as below.

3.5.1. 1952 Arrest Convention

The first shortcoming of the 1952 Arrest Convention lies in its scope of application.
Article 2 of the 1952 Arrest Convention states that the Convention applies to ships
flying the flags of State Parties, except national law in terms of the claims for which a
ship may be seized. This is regarded as a protective rule in civil law, as it restricts the
right of arrest to particular sorts of claims, thereby protecting shipowners. There are
two exceptions to this general rule respectively provided under Article 8.(3), (4) of the
Convention. Article 8(3) allows State parties to exclude from its scope of application

34
any person who does not, at the moment of the arrest, have his or her habitual residence
or primary place of business in a State party. This provision is actually entitling the
State to make an exclusion that is analogous to a reservation of the Convention (Abou-
Nigm, R. V., 2007). Article 8(4) provides that pure domestics cases whereby the arrest
of a ship is requested in flag State by a person who has a habitual residence or primary
business address in that State shall not be subject to the application of the Convention.
The technique used in Article 8.(4) inadvertently encourages State parties to maintain
a double standard that directly impacts the goal of building a global rule of ship arrest
(Abou-Nigm, R. V., 2007).

The second drawback of the 1952 Arrest Convention is the divergence between its
autonomous interpretation and national terminology. This Convention defines ship
arrest as “any detention or restriction on removal of a ship by order of a court to secure
a maritime claim.” However, neither the term “ship arrest” in English law nor “saise
conservatoire” in French law essentially coincides with the autonomous conventional
concept. Prior to the 1952 Arrest Convention, “ship arrest” in English law was limited
to claims which admiralty court could exercise its jurisdiction and to such ships on
which the maritime claims arose (Abou-Nigm, R. V., 2007). In contrast, the notion of
“ship arrest” was not explicitly provided in civil law, instead of that, the concept of
“saise conservatoire” was introduced (Tettenborn, A., 2018). In essence, this tool is
construed to ensure the assets of the defendant to be available for civil judgment
enforcement in the future. In other words, the purpose of saise conservatoire is to
obtain pre-trial security. This approach of civil law created a common thread that ships
and/or property other than those to which the maritime claims attached shall be
possibly seized.

In addition, the 1952 Arrest Convention inadvertently separated ship arrest from in
rem jurisdiction and claims and treated it as an independent matter (Thomas, R., 2018).
From a common law perspective, this layout was not common because ship arrest is
typically blended with admiralty jurisdiction and action in rem.

35
With respect to the determination of ships subjected to maritime claims, the 1952
Arrest Convention has provided that the lienor can choose either the particular ship or
her sister ship. This provision has left a big question of how to conceptualize the
common ownership between the particular ship and another ship. Article 3.2 of the
1952 Arrest Convention refers to the notion of “all the shares” in the respective ship
which normally occurs in the situation in which ships are owned by different
companies in a group. As a response to this provision, it emerged a new trend of
companies operating a single ship (South African Law Reform Commission, 1982)
which directly caused the admiralty court to lose its ship arrest power (Messon, N. and
Kimbell, J. A., 2018).

3.5.2. 1999 Arrest Convention

The 1999 Arrest Convention extended the power of ship arrest which is explicitly
proved via the increasing of the claim list triggering ship arrest and ship subjected to
arrest order. Technically, the provision set forth in Article 3 of the 1999 Arrest
Convention is clearer than those in the 1952 Convention. The 1999 Arrest Convention
remains the approach of the former Convention in terms of ships subjected to arrest
order which are particular ship and another ship. The main difference between the two
Conventions lies in the right to choose ship to be arrested. Accordingly, Article 3 of
the 1952 Arrest Convention refers to the alternative right meaning that the arrestor is
only able to arrest either a particular ship or another ship. In contrast, Article 5 of the
1999 Arrest Convention refers to the accumulative right that allows the arrestor to
arrest both a particular ship and any other ship.

However, the 1999 Arrest Convention represents a significant restriction on ship arrest
in comparison with the 1952 Convention (Piñeiro, C. L., 2015). Accordingly, Article
3 of the 1999 Arrest Convention allows the ship to be arrested when the debtor must
concurrently be the shipowner or bareboat charterer at the time when the maritime
claim arises and at the time the ship arrest is requested. This provision is construed as
allowing a ship to be seized no matter what the debtor’s identity is and how the nexus
between the debtor and the ship when the arrest takes place.

36
Hence, the 1999 Arrest Convention is also criticized for failing to address the matter
of common ownership that inherently existed in the former Convention. The Arrest
1999 truly left a huge dissatisfaction for letting national law deal with the drift of single
fleet companies (Berlingieri, F., 2011).

3.6. Conclusion

In short, depending on each state, a maritime lien shall be enforced via action in rem,
action in personam with the custody of ship, quasi action in rem, or arrest of the ship.
The international community has made tremendous efforts in unifying a rule on ship
arrest, however, in return, only receive minimal support.

Chapter 4. Recommendations for Vietnamese laws on

maritime liens and their enforcement

Resolution 36 regarding the evolution of the national economy with a vision to 2030
and orientation to 2045 has emphasized the significance of a legal framework for the
blossom of the national maritime economy. The revision of the law on maritime liens
and their enforcement is especially vital when the Vietnam Maritime Code 2015 is in
the process of first phase assessment after five years it came into force. This Chapter
will respectively assess the need for harmonization of national law in line with
international standards, the application of such provisions in reality through which
render corresponding solutions.

4.1. The significance of harmonization of national law in line with international

standard

Different from other countries where the formation and evolution of maritime liens is
an autochthonous movement, Vietnam’s law on maritime liens and ship arrest is
mainly influenced by international law. In other words, Vietnamese Maritime Law is
a result of a long process of studying international law and selectively applying it in
line with the internal conditions. Particularly, during the drafting process of Vietnam
Maritime Code 2015, the Government via Proposal No. 254 dated 28 May 2015
addressed the importance of conventional law, especially the 1993 Geneva Convention

37
and the 1999 Arrest Convention as a source of maritime law of Vietnam. Though
Vietnam is not a member of any maritime liens or ship arrest conventions, Vietnam
has incorporated relevant provisions into its national law. To a reasonable degree, the
1993 Geneva Convention and the 1999 Arrest Convention have played a crucial role
in shaping and completing Vietnamese law on maritime liens and their enforcement.

There are three reasons inducing Vietnam to harmonize its national law in accordance
with international standards. First, Vietnam has to build up a globally recognised
maritime legal framework besides upgrading national fleets in order to catch up and
maintain the steadily developing foreign trade. Second, with the ambition of increasing
the maritime economy to account for 60-70% of national GDP as set forth in
Resolution 36, an attractive environment for foreign investment has to be established
comprehensively including foundation as well as superstructure. In order to obtain this
goal, laws, and regulations concerning foreign investment request shipping-related
laws and regulations to be updated and maintained. Lastly, the international
community has been attempting to unify international law and practice for the shipping
industry. Undoubtedly, shipping is a global-related matter, therefore, should be
governed by international instruments rather than divergent national laws. In other
words, every country including Vietnam should enforce the same rules.

4.2. Status quo of international laws on maritime liens and ship arrest

Despite the huge significance of international conventions in shaping national

maritime law, Vietnam is still not on set to ratify these conventions on maritime liens
and ship arrest. Accordingly, the last movement of Vietnam considering to become a
contracting state of the 1999 Arrest Convention was in 2013 evidenced via the
Ministry-level Scheme regarding the ratification of the 1999 Arrest Convention of the
Ministry of Transport of Vietnam. There are several reasons behind the standby mode
of Vietnam on international convention ratification.

To begin with, maritime lien conventions have failed to gain tremendous support from
international communities especially “big players” in the maritime sector such as the
United States or the United Kingdom. Particularly, these maritime liens conventions

38
limit the number of maritime liens, especially, exclude lien for necessaries that are
strongly and traditionally protected by US law (Göretzlehner, E., 2019). Hence, these
maritime lien conventions rely too much on civil law that may result in a striking
difference in the enforcement of maritime liens from a common law perspective
(Berlingieri, 1995).

Moreover, the issue concerning the nature of a maritime lien as a procedural or

substantive right still rises many debates among different national legal systems
despite the endeavours of the international community to get closer to the idea of
uniform law. As mentioned in section 2.1, English law proposes that maritime liens
attribute to a procedural status while civil law countries follow substantive rights
theory to regulate this concept.

Regarding ship arrest, it is said that the conditions and procedures for ship arrest
significantly vary state by state (Jessen, H. and Theocharidis, G., 2019). This is the
reason that leads to the abolishment of the goal of unifying a set of rules of both Arrest
Conventions has not been completely achieved (Tetley, W., 1999).

Referring to Vietnam, the significance of the 1999 Arrest Convention to the formation
and completion of national law on this matter is undeniable. Vietnam has nationalized
a certain number of provisions of this Convention. However, Vietnam still reserves a
restrictive approach of not allowing the forced sale of a ship as a direct consequence
of ship arrest for the enforcement of maritime liens. Particularly, with respect to the
ship abandoned by the shipowner and subject to an arrest order for the enforcement of
maritime liens, Article 16 of Decree 57 provides two following scenarios. First is
where the lienor triggers another action in personam and the ship shall highly be
subject to judicial sale as a part of judgment enforcement. Second is where the lienor
does not bring a lawsuit or the court does not accept the petition of the lienor. In that
case, the ship shall be sold via auctioned and the fund collected shall be transmitted
into the national budget.

To sum up, the international community is standing still in the way of forming unified
rules on maritime liens and ship arrest due to divergent views on law and public policy

39
perspectives. Vietnam is in front of pressure to perfect and harmonize its national law
in compliance with international standards. The common choice of any state in that
circumstance is to ratify the international convention, however, with respect to
maritime liens and ship arrest, that is not the most appropriate solution.

4.3. Actual admiralty practice in Vietnam

It should be reminded that Vietnam chooses the lex fori for the purpose of foreign
maritime lien recognition and court jurisdiction crystallization. Accordingly, such
foreign liens which are not found equivalent to national liens shall not be recognised
to enforce. In other words, the jurisdiction of the court to enforce, in the light of
Vietnamese law, shall be established based on the existence of the maritime lien.
However, in reality, this principle is not implemented correctly.

Particularly, the court proposes that the conditions to issue a ship arrest decision to
enforce a maritime lien are the existence of a dispute belonging to the jurisdiction of
the court of Vietnam. This illustrates that the court was wrong at the first step for
unifying the jurisdiction arresting a ship and the jurisdiction hearing the merit of the
case.

In addition, the court has unified ship arrest as a means of enforcing maritime lien with
ship arrest as an interim measure applied together with action in personam. In the light
of Ordinance 05, ship arrest has three main functions, including (i) to enforce a civil
judgment, (ii) to ensure the resolution of a case as a provisional measure, and (iii) to
enforce maritime liens. Each function shall be conducted based on different
requirements and proceedings. However, in reality, when receiving an order of ship
arrest the court subjectively perceives that ship arrest only has two traditional roles as
either civil judgment enforcement or provisional measure.

4.4. Recommended solutions

From the aforementioned, the author proposes the following solution corresponding to
the issues of recognition of foreign maritime liens and the enforcement regime of
maritime liens.

40
4.4.1. Recognition of foreign maritime liens

As discussed in Chapter 3, neither the 1952 Arrest Convention nor the 1999 Arrest
Convention provided any practical guidance on recognition and enforcement of
foreign maritime liens leading to the failure of the international community to establish
a set of rules on this matter.

Referring to Vietnam, the lex fori is selected for the determination of foreign maritime
liens. This means that maritime liens are regarded as a procedural matter in
Vietnamese law. However, this approach is contradicted to the accurate nature of
maritime liens as a right which is also recognised in Article 41 of the Maritime Code
2015. In addition, the existing regulations under Articles 3 and 41 of the 2015
Maritime Code prove that Vietnam is taking an analogous approach in comparison
with US law when distinguishing the law governing the disputed relationship (either
contractual or non-contractual) from the law governing the maritime liens. The result
of this approach is that Vietnam cannot confer the legal certainty for the creditors of
foreign seagoing ships which directly goes against the motto of increasing domestics
maritime economy and foreign investment as set forth under Resolution 36 of
Vietnam.

Therefore, it is proposed that Vietnam should apply the lex cause in recognising
foreign maritime liens. The is because the lex causae is consistently in line with the
nature of the substantive right of maritime lien as provided under Article 41 of the
2015 Maritime Code of Vietnam and international private law in terms of attributing
to the legal safety for the creditors. In addition, the existence of a maritime lien is not
subject to its own legislation but the contract or the substantive law if the claim is non-
contractual. With this feature, Vietnam shall be highly considered as a “heaven forum”
with a certain legal system that is pointed as one of the cornerstones to attract foreign
investment. Furthermore, the aim of harmonizing Vietnamese law with the
international standard may not be comprehensively achieved if Vietnam continues the
application of the lex fori. This is because this theory totally excludes foreign maritime
liens. Hence, compared to the Greek law approach, it is well-established that the flag

41
is not always indicatively connected with the vessel to the jurisdiction because parties
may engage in flag shopping as an alternative way of enjoying the convenience of
forum shopping.

Last but not least, in order to avoid the debate regarding the ranking of foreign
maritime lien that may create a competitive disadvantage to the domestic enterprise as
mentioned in the case of Germany, Vietnam should carefully consider the priority and
ranking among foreign maritime liens and national maritime liens.

4.4.2. Maritime liens enforcement regime

As discussed in Chapter 3, Vietnam as a civil law country can enforce maritime liens
via either action in personam or ship arrest. The difficulty of action in personam lies
in the fact that the shipowners intend not to be present before the court in order to hide
their obligations. Therefore, the lienors frequently select arrest of a ship in order to
enforce their maritime liens. However, in Vietnamese law, the main purpose of the
arrest of a ship is to summon the shipowner instead of obtaining the money.
Nevertheless, at this moment, Vietnamese law does not provide for the situation that
the shipowner appears in front of the court after the order of ship arrest is issued which
impliedly assumes that the lienors have to initiate another lawsuit against the
shipowners to obtain the money. To a certain extent, this approach spontaneously
causes procedural burden to the lienors especially when the change to jurisdiction
happens. This is because pursuant to the 2015 Maritime Code of Vietnam, the
jurisdiction of the court of arresti is determined based on the locality where the ship is
berthing whilst the jurisdiction of court hearing an action in personam as set forth in
Article 39 of the 2015 Civil Procedure Code is determined based on residential or
business address of either the defendant (shipowners) or the claimant (the lienor).
Theoretically, these courts are not the same under all circumstances. Obviously, the
lienor has to take another “long legal journey” with the burden of proof, the legal fee
as well as other obligations requested by the law in order to initiate another lawsuit.
From a commercial perspective, enforcement of maritime liens either by an action in
personam or arrest of a ship should be carried out promptly because the ship not put

42
into operation shall rapidly reduce its value which directly affects the compensation
amount of the maritime lien holders.

Therefore, the author proposes to apply the regime of English law in a way that once
the shipowner appears after the order of ship arrest is issued, the procedure shall
automatically convert into action in personam. With this approach, the lienor does not
have to take another lawsuit against the shipowner that certainly saves the period of
considering and accepting the petition of action in personam. Hence, when the
procedure is action in personam, it is much safer for the lienor in terms of collecting
the compensation, especially when the current ship’s value is lower than the number
of claims because other properties of the shipowners shall be enforced besides the ship.

4.5. Conclusion

To sum up, upgrading national law on maritime liens in line with international
standards is essential for Vietnam. In comparison with international law, Vietnam law
is silent on the recognition of foreign maritime liens and the priority among them and
national liens. In considering three typical variations of theory on recognition of
maritime liens, it is proposed that Vietnam should choose the lex cause for the
recognition of foreign maritime lien and the lex fori for the enforcement of such liens.
Hence, in the light of Vietnamese law, it appears that ship arrest is to summon the
presence of the shipowner before the court. Therefore, if the shipowner appears, the
lienors must take an action personam against the shipowner in order to sell the ship
via auction for claiming compensation. To a certain extent, this loophole of law creates
a burden to the lienors because they have to trigger another lawsuit. In order to simplify
the procedure, the author suggests applying the approach of English admiralty in a way
that once the shipowner appears before the court, the procedure of ship arrest shall
automatically convert to action in personam. Last but not least, the existing
Vietnamese law not allowing the forced sale of a ship as a direct consequence of ship
arrest is considered less safe to the lienor. Therefore, the law should be modified
recognizing judicial sale of a ship if the period of ship arrest is gone but the shipowner
is absent or abandons the ship.

43
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