The Enforcement of Maritime Claims: Who Loses Out?

Abstract

Mercer considers the problem where a ship is arrested and, due to the insolvency of the owner, it is sold by the arresting court, and conflicting interests arise in respect of the sale fund. When the fund is insufficient to meet all claims, then inevitably some parties will lose out.

First, Mercer sets out the present English and New Zealand law positions, then provides an account of the relevant cases in the area, setting out the actual problems encountered and how they were resolved, before finally discussing one of the main criticisms of the approaches taken by the courts and what the alternatives are.

Mercer also contemplates the further problem where claims have arisen in foreign jurisdictions, in the context of foreign legal systems, and may be difficult to prioritise. Case examples are provided to illustrate this issue.

Ultimately Mercer endorses a form of vested rights theory, in saying that it is an integral part of international trade that foreign ships should be allowed to enter other jurisdictions, bringing with them the foreign rights and obligations that the vessel has acquired on its travels, and these rights should be recognised as far as possible unless contrary to public policy.