Maritime liens and mortgages under Maltese law

Abstract

The similarity between maritime liens and mortgages resides in the predominantly economic rather than legal premise that both involve the creation of a secured. charge on a vessel. Such a charge is, as a general rule, enforceable against the original owner and any subsequent purchaser. To proceed any further however, would require one to differentiate between the two concepts. Thus, a maritime lien arises solely by operation of law and simultaneously with the cause of action from the moment of the circumstances giving rise to the claim. It represents a charge which accrues independently of agreement “inter partes” and regardless of any antecedent formality. The immediate effect of the lien is to give to the claimant a charge on the “res” which it encumbers into whosoever’s possession the “res” may have passed. The charge is thus, invisible and secret. It is in the “ipsa natura” of the lien as constituting a claim against the property that one must seek the reason for this highly privileged security which gives it preference over the ship – mortgage. Seemingly, liens attach to the vessel itself as an instrument of commerc8 which, in its interests, is personified and subjected to such liabilities without regard to circumstances as questions of title or ownership. Reasons of necessity and general interest dictate the subordination of a mortgage to a maritime lien.