Maritime claims - Definition, types, maritime liens

The maritime world, with its specificity and particularity, has developed a set of original rules concerning claims and related guarantees. These legal mechanisms reflect the need to adapt the law to the constraints of ship operations.

I. Concept of a maritime claim

International definition

The Brussels Convention of 10 May 1952 on the arrest of ships defines a maritime claim as "the allegation of a right or claim having one of the causes" listed in the text. This definition remains central to international maritime law.

This definition is part of a move to unify maritime law at international level.

Limited or indicative list

The Brussels Convention provides a list of maritime claims, classified from letter a) to letter q). This list covers 17 types of claim, from "damage caused by a ship" to "maritime mortgages and all mortgages".

French courts have generally considered this list to be exhaustive. A claim that does not appear in this list cannot be qualified as "maritime" within the meaning of the Convention.

Evolution of the concept

The concept has evolved with the new Geneva Convention of 12 March 1999, which extends the list of maritime claims. It now includes claims relating to salvage operations to protect the environment, as well as insurance premiums.

This development shows how maritime law is adapting to environmental concerns and the increasing complexity of maritime trade.

II. Types of maritime claims

Receivables relating to the operation of the vessel

These receivables mainly relate to

• Postage and handling
• Repairs and supplies required for operations
• Towing
• The captain's disbursements for the ship's needs
• Wholesale loans

These claims relate to the operational aspects of the vessel. Take port charges, for example: these are sums owed to the port authorities to allow access to the essential infrastructure for loading and unloading.

Merchandise receivables

They include:

• Loss of or damage to transported goods
• Contributions to general average
• Losses resulting from charter contracts

General average is an original concept in maritime law. It involves the voluntary sacrifice of part of the cargo to save the maritime expedition.

Crew-related receivables

These receivables include:

• Captain's and crew salaries
• Repatriation costs
• Compensation payable in the event of an accident at work

The Court of Cassation recently adopted a broad interpretation of the concept of "crew wages". In a ruling dated 13 September 2023, it held that this concept included various indemnities linked to the employment contract and its termination.

Claims in contract and tort

Maritime claims may arise:

• Contracts (chartering, transport, insurance)
• Offences (collision, pollution)
• Assistance and rescue
• Ownership or possession of the vessel

Certain claims, such as those arising from a collision, benefit from a special regime, both in terms of prescription and the privileges attached to them.

III. Maritime liens

Definition and characteristics

The maritime lien is a preferential right attached to certain maritime claims. It allows the creditor to take precedence over other creditors when distributing the sale price of the ship.

These liens are genuine legal privileged mortgages, comparable in common law to the lien of the vendor of a building.

Legal sources

Under French law, maritime liens are governed by:

• The French Transport Code (articles L. 5114-8 et seq.)
• Law no. 67-5 of 3 January 1967 (partially codified)

At international level:

• The Brussels Convention of 10 April 1926 on maritime liens and mortgages
• The Geneva Convention of 6 May 1993 (not yet in force in France)

Concealment and resale rights

Maritime liens have two essential characteristics:

1. They are hidden, i.e. they are not publicised.
2. They confer a right of resale, enabling the creditor to seize the vessel in any hands it may pass through.

The hidden nature of maritime liens distinguishes them from maritime mortgages, which must be registered in order to be enforceable against third parties.

IV. Classification of privileges

Senior liens (international)

These privileges, recognised by the Brussels Convention of 1926, include:

1. Legal costs
2. Tonnage dues and other taxes
3. Crew salaries
4. Assistance and rescue costs
5. Compensation for collision, damage to persons and goods

These international liens take precedence over all other rights, including maritime mortgages.

Second-tier privileges (national)

These liens are specific to each national legislation. In French law, they include common law liens such as those of the seller of furniture or the pledgee.

These national liens rank only after mortgages.

Order of privileges

International privileges are classified in the order in which they are listed in the texts.

Claims arising from the same journey are paid in the order in which they are listed.

For claims of the same category, they compete with each other and are paid at the euro mark.

The "last journey" rule gives claims from the last journey preference over those from previous journeys, encouraging creditors to be diligent.

Competition with mortgages

In the hierarchy of preferential rights:

1. International maritime liens
2. Maritime mortgages
3. National privileges
4. Unsecured claims

This hierarchy is universally recognised in the States that have ratified the 1926 Convention.

V. Basis of liens

Ship

The lien relates to the body of the ship, including the hull, machinery and all the elements necessary for its navigation.

Case law has specified that bunkers (fuel) form part of the lien, as they are considered to be an element of the ship.

Freight

The freight of the journey during which the preferential claim arose forms part of the basis of the lien.

The lien can be exercised as long as the freight is still due or the amount is in the hands of the master or the owner's agent.

Accessories

The following are considered accessories

• Rigging and equipment
• The victuals
• Fuels
• All items used in the operation of the vessel

The accessories covered by the lien must belong to the same owner as the vessel.

Substitute claims (insurance, compensation)

Article L. 5114-10 of the Transport Code includes in the base:

• Compensation due to the owner for material damage to the vessel
• Hull insurance indemnities
• Compensation for general average
• Remuneration for assistance and rescue

The insurance indemnity is excluded from the basis of liens and reserved for mortgage creditors, generally through a delegation of insurance.

VI. Extinction of privileges

Deadlines (one year or six months)

Liens lapse after one year.

This period is reduced to six months for claims arising from contracts entered into or operations carried out by the captain outside the home port ("captain's disbursements").

Judicial sale

The judicial sale of the vessel extinguishes all liens against it.

This automatic purge results from the guarantees surrounding the judicial sale procedure, in particular the publicity given to creditors.

Other causes of extinction

Privileges also lapse:

• By extinction of the principal claim
• By confiscating the vessel
• By voluntary sale, two months after publication

A ship that has become a wreck loses its status as a ship and, consequently, the privileges attaching to it are extinguished.

Creditor protection

In the event of a voluntary sale, preferential creditors retain their rights for two months after publication of the transfer deed.

During this period, they may lodge a stop payment with the purchaser to obtain payment of the price.

Case law has clarified that the one-year period is not a fixed period but a limitation period, which may be interrupted by the creditor's voluntary intervention in a sale procedure.

The mechanism of maritime liens aims to protect certain categories of creditors, while allowing the normal operation of the ship, an essential asset for maritime trade.

Sources

• Transport Code, articles L. 5114-8 to L. 5114-29
• Brussels Convention of 10 May 1952 on the Arrest of Ships
• Brussels Convention of 10 April 1926 on maritime liens and mortgages
• Court of Cassation, Com. 13 September 2023, F-B, no. 20-21.546
• Court of Cassation, Com. 13 January 1998, no. 95-15.497
• Fascicule 1128 JurisClasseur Transport "Attachment of the vessel".
• Fascicule 30 JurisClasseur Notarial Form "Ship - Maritime liens and mortgages. Seizure of the vessel" form
• Fascicule 1135 JurisClasseur Transport "Ships and other seagoing vessels - Forced sale of ships - Seizure and execution".