GODWIN DJOKOTO1
HEALING THE BLIND SPOTS: AN EXPOSITION AND CRITIQUE OF THE LAW
ON LIENS UNDER THE GHANA SHIPPING ACT, 2003
Introduction
Ghana maritime law is basically drawn from the general maritime law from the English common
law,2 and statutory law, currently the Ghana Shipping Act, 2003.3 Therefore, the law governing
maritime liens in Ghana is to be found in these two sources. The Ghana Shipping Act (GSA, 2003)
repealed the Merchant Shipping Act, 1963 (Act 183) as severally amended,4 and seeks to consolidate
and bring the law governing maritime activity in Ghana into conformity with the International
Maritime Organization’s (I.M.O.) conventions.5 Prior to the enactment of the GSA, 2003, there was
no statutory provision on maritime liens6 and the subject was primarily governed by the traditional
common law rules. The obvious defect was that law on maritime liens as it applied in the United
Kingdom on 24th July 1874 was the only applicable law in Ghana despite the fact that maritime
world had significantly moved on. In recognition of this state of affairs, Ghana acceded to the 1993
International Convention on Maritime Liens and Mortgages and implemented this Convention into domestic
legislation.7
This Convention, and by extension the Ghana Shipping Act, among other things, recognizes that
ship financing is becoming increasingly international and, therefore, the need for the application of
uniform rules in the recovery of loans by financiers.8 Secondly, the Convention seeks to reduce the
number of maritime liens in order to encourage ship financing by granting better priority to
1
LL.B, B. L. (Ghana) LL.M (Dalhousie), Assistant Lecturer, Faculty of Law, University of Ghana, Legon. The
author is particularly grateful to Prof. Moira McConnell and David Dzidzornu Esq., both of the Schulish School of
Law, Dalhousie, University, Halifax, Nova Scotia for their insightful comments on the draft paper.
2
Supreme Court Ordinance No. 4, 1876, section 4. On 24 July 1874, the Gold Coast (now Ghana) obtained a local
legislature, and from that date the English common law, the doctrines of equity and the statutes of general
application ceased to apply to the Gold Coast. Therefore, the common law of Ghana is that whole body of English
law before 24 July 1874. See K.Y. Yeboa, “History of the Ghana Legal System” (1991-92) 18 R.G.L.1at 7.
3
Act 645 which came into force on 3 July 2003, [GSA,2003]
4
Act 183 as amended by the Merchant Shipping Act, (1963) (Amendment Decree, 1969) (NLCD 372) and the
Merchant Shipping (Amendment) Law, 1991(PNDCL 248).
5
Ghana Shipping Bill, (2000).
6
Alexander Gaddiel Buabeng, Maritime Liens, Statutory rights in rem and Mortgages –A comparative Analysis of
Ghanaian and English laws, in Admiral 2, (2006) , 105 at 121.
7
GSA, 2003, Sections 66-76.
8
Francisco Berliengieri, “The 1993 Convention on Maritime Liens and Mortgages” (1995) L.M.C.L.Q. 57.
1
mortgage holders.9 In this way, ship-owners could develop their fleets and obtain adequate financing
while securing the financial interest of the financiers. Finally, the Convention aims to secure
maritime liens as a means of contributing to the safe and efficient operation of ships.10
This essay is an exposition and critique of the law on maritime liens in Ghana. It discusses the
changes the GSA, 2003 has introduced to alter the common law rules, the practical difficulties that
may be encountered in the application of the rules under the new maritime liens regime and, some
patent omissions (or what I refer to as “blind spots”) in the Act which must be healed.
This essay is divided into four parts. Part I lays the foundation for my subsequent analysis by briefly
discussing the nature and character of maritime liens. In part II, I discuss the claims that attract
maritime liens under Ghana law which, not surprisingly, only confirm most of the liens that exist at
common law, and the recognition of some claims that, hitherto, did not enjoy the status of maritime
liens. In Part III, I focus on priority and extinction of liens. In this section, I argue that as much as
the rankings listed in the Act should not be lightly tempered with, where adherence to the ranking
would lead to unfairness and inequitable treatment of competing claimants, the rankings ought to be
altered. Finally, in Part IV, I argue that the omission of assignment and subrogation of maritime
liens from the GSA and the failure of the law makers to create national maritime liens constitute
blind spots in the law which must be healed.
9
Ibid.
Ibid. at 62.
10
2
Part I
Definition and Nature of Maritime Liens
The concept of maritime liens is unique to maritime law. It has its origin in the civil law concept of
“privilege” which has no equivalent in the common law.11 Maritime liens are privilged because of the
priority they enjoy. Generally, maritime liens enjoy priority over mortgages, possessory liens and
statutory right of action in rem.12 The origins and development of the maritime liens has been greatly
influenced by the peculiar needs of maritime commerce, custom and the ancient lex maritima. Owing
to the evolving character of maritime liens, the claims recognized as secured by a maritime lien and
the property on which maritime lien attaches has changed over the years and varies from one
jurisdiction to the other. For example, some courts have held that a maritime lien attaches to the
vessel only,13 while other courts and publicists have indicated that in addition to the vessel, maritime
lien could attach to freight and cargo.14 In this wise, it is much deprecated that the GSA, 2003 does
not define the term “maritime lien” either by concept or content. In my view, the definition of the
term enables us to map out the area within which the concept is to operate, in order to avoid
extending it to things that it might not apply to. Nevertheless, it can safely be said that a maritime
lien under the Act attaches to a vessel only.15 This is because Section 66 states that “…any of the
claims against the owner, demise charterer, manager or operator of the vessel shall be secured by a
maritime lien on the vessel…” (emphasis added). Therefore, under Ghanaian law a maritime lien does
not attach to the vessel’s freight and cargo. The Act does not deal with a ship owner’s lien on the
charterer’s cargo and sub-freight payable by the charterer, presumably because they arise by the
operation of law or from contract.16
In the absence of a definition of “maritime lien” in the GSA, 2003, I turn to the common law for
guidance. At common law, maritime lien is said to be a privileged claim upon a vessel (and
11
William Tetley, Maritime Lien and Claims (2ed) (Cowanville, Q.C.: Yvin Blais, 1998) at 55; D.C. Jackson,
Enforcement of Maritime Claims (London: Lloyd’s of London Press Ltd., 1985) at 9; The Bold Buccleugh 13 ER
884 at 890. However, according to Gilmore and Black, the concept of maritime lien is not a novel and peculiar
importation from the civil law. See Gilmore and Black, The Law of Admiralty (2ed) (New York: Foundation Press
Inc., 1975) at 596.
12
Alexander Gaddiel Buabeng, Maritime Liens, Statutory rights in rem and Mortgages –A comparative Analysis of
Ghanaian and English laws, in Admiral 2, (2006) , 105 at 121.
13
The Ripon City (1897) P. 226 at 242.
14
The Tolten [1946] P 135 at 149- 150. Others like Prof. Tetley cautiously refer to it as “a claim enforced maritime
property, usually a ship,” thus implying that a lien can be enforced against properties other than the vessel.
15
See also Section 383(1) of the GSA, 2003. Vessel in this context refers to its hull, machinery and other fixed parts.
Contrast with section 21(3) of the English Supreme Court Act, 1981, which says that: “In any case in which there is
a maritime lien or other charge 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.”
16
Charles Donovan, “Case Comment: St John Marine Co. United States” (I997) 28 J. Mar. L & Com. 351 at 355.
3
sometimes freight and cargo) in respect of services rendered to the vessel, or injury caused by it, to
be carried into effect by legal process by a proceeding in rem.17 It is inchoate from the moment the
claim attaches, and when carried into effect by legal process, by a proceeding in rem, it relates back to
the period when it first attached.18 This charge or privilege comes into existence automatically and
gains priority over other claims without any antecedent formality, registration or court action.19 The
unique feature of maritime liens is that its existence can be secret and it travels with the ship
everywhere, even into the hands of a purchaser for value without notice.20 In other words, it is of no
moment that the new purchaser does not know of the existence of the lien. In addition, a maritime
lien is not extinguished by change of nationality or registration in another registry. 21 Under the GSA,
2003 a lien is not only enforceable against the ship in connection with which the claim arose, but
also against a sister ship.22 Although several maritime claims exist, a maritime lien attaches only to a
restricted number of maritime claims. It is to these claims that I turn in the next section.
The Bold Buccleugh 13 ER 884 at 890; The Ripon City supra note 9 at 242. In Comeau’s Sea Food Ltd. v. Frank
and Troy [1971] F.C. 556, the Canadian Supreme Court also defined a lien as “a privileged claim, upon maritime
property, for services done to it or injury caused by it, arising from the moment when the claim attaches, traveling
with the property unconditionally, and enforced by means of an action in rem.”
18
The Bold Buccleugh, ibid.
19
Tetley, supra note 10 at 59-60. See also The Tolten [1946] P 135 at 149-150.
20
The Tolten[1946] P 135.
21
GSA, 2003, Section 70.
22
Ibid. Section 446(b).
17
4
Part II
Types of Maritime Liens
The GSA, 2003 recognizes five types of maritime liens that could be secured on the vessel to
enforce payment of a claim owed by an owner, demise charterer, manager or operator of the vessel.
These are claims for wages and other sums due to the master, officers and other members of the
vessel’s complement in respect of their employment on the vessel; claims in respect of loss of life or
personal injury; claims for rewards for salvage of the vessel; claims for ports, canal and other
waterway dues and pilotage dues; and claims based on tort arising out of physical loss or damage
caused by the operation of a vessel.23 Therefore, liens for respondentia and bottomry claims, which
existed under the inherited common, are no longer recognized in Ghana. Historically, bottomry and
respondentia were the primary sources of shipping finance when the ship was distant from her home
port. However, it seems to me that in a world of improved communications and improved credit
facilities, the bottomry bond has declined in importance and, to all intents and purposes, has fallen
into oblivion.24
It is pertinent to observe that the express mention of “an owner, demise charterer, manager or
operator of the vessel” in Section 66 as persons whose liability can be enforced against the vessel
implies the exclusion of time and voyage charterers. To my mind, the reason for the exclusion of
time and voyage charters lies in the distinction between demise charters and the former. A demise
charter is a lease of the hull and equipment of a ship. The charterer crews it, makes provision and
supplies for it.25 The demise charterer accepts a bare–boat charter and agrees to run it at his own
expense. Put differently, demise charterparties are different from other charterparties because it is
not a hiring of the services of the ship owner to carry cargo, but a hiring of the ship alone.
Therefore, under a demise charter, if loss occurs to a third party cargo, the shipper’s claim lies
23
GSA, 2003, Section 66.
24
Bottomry is an agreement where under a representative of a ship, in most instances the master, in circumstances
of distress and necessity, and in the absence of any other source of finance or credit, hypothecates the ship (or cargo
in the case of respondentia) with a view to meeting the necessary expenditure or obtaining credit and so facilitating
the safe continuation or completion of the voyage. See The St. George [1926] P. 217 at 226. See also E.Gold et. al
infra note 25 at 279.
25
E. Gold, A. Chircop. H. Kindred, Maritime Law (Toronto: Irwin Law Inc., 2003) [“E. Gold et al.”] at 380.
5
against the charterers, as “despondent” owner, not against the ship owner.26 On the contrary, in the
case of voyage and time charter parties the ship-owner continues to have control of the ship and in
charge of managing and navigating the vessel.27 Therefore, rarely would any of the claims in Section
66 of the Act be brought against time or voyage charterers.
Master’ and Seafarer’s Wages
The GSA, 2003 retains the “sacred” common law lien for crew wages. The Act gives the master,
officers and other members of the vessel’s complement a maritime lien in respect of wages and
other sums due to them in respect of their employment on the vessel, including cost of repatriation
and social insurance contributions payable on their behalf.28 Although the crew’s lien for wages and
others may negatively impact on the security of a mortgage, presumably, they are provided for
because their services contribute to the safe and efficient running of the vessel.29 Traditionally,
seamen have always been the wards of the admiralty courts and their right to be paid for wages has
always been of paramount concern to the courts.30 This right is not dependent on the ship having
earned wages,31 and it attaches from the date the claimant is discharged from the vessel.32
The determination of who is a master or officer is not controversial, as it is well defined by the Act.
Section 481 defines “master” to include “every person who lawfully has, for the time being,
command or charge of a ship”. Officer in relation to the ship is also defined to include “a master
and deck officer, engineer, radio or medical officer”. The problem, however, remains with
determining those persons who are eligible to exercise a lien as “the other members of the vessel’s
complement”. To my mind, the other members of the vessel’s complement refer to seafarers under
the Act. The Act defines “seafarer” as “a person employed or engaged in any capacity on board a ship, and
includes apprentices…but does not include a master, pilot or a person temporarily employed on the ship while the ship
is in port”.33 The broad definition of seafarer entitles not only seamen and apprentices, but others
26
Ibid.
Ibid.
28
GSA, 2003, section 66(1) (a); section 137(1).
29
Berlingieri, supra note 8 at 63.
30
International Paint v. Mission Viking 1981 A.M.C. U.S Court of Appeals (5th Circuit) 1487 at 1491.
31
GSA, 2003, Section 138 (1). However, where it is proved that, in the event of a ship-wreck or loss of the ship, the
seafarer made no utmost effort to save the ship, cargo and stores, the seafarer is barred from receiving wages.
32
GSA, 2003, section 72 (2) (a).
27
6
employed on the vessel in any capacity, including cooks and kitchen help to exercise a lien on the
vessel in case their wages and other benefits due them remain unpaid.34 It will also cover hotel and
entertainment personnel on a cruise ship.35 In other words, the test of whether a person is entitled to
claim a lien depends not only on the fact that he or she has rendered service to the ship, but he or
she must also have a relationship with the vessel. Therefore, a person who is temporarily employed
to work on the vessel while the vessel is at port cannot exercise a maritime lien on the vessel.36
What constitutes wages and other sums payable to crew for which they can exercise a lien is another
difficult question that must be resolved. The GSA defines “wages” as remuneration for the crew for
work done as agreed between the crew and the vessel owner or managing owner”.37 To my mind,
the entitlements contemplated here would not be restricted to the payment of salaries, social
insurance contributions and repatriation costs only, but would cover others such as agreed
bonuses,38 paid leave, sick leave39 and gratuity.40 Also, a seafarer whose contract of employment is
wrongfully terminated without his consent either before the commencement of the voyage or before
one month wages are earned, is entitled not only to sue for damages but can enforce his claim on the
vessel.41 To this end, any amount a master, officer or seafarer is entitled to could fairly be said to be
accompanied by a corresponding maritime lien.
Apparently, repatriation costs and the payment of social insurance contributions have been expressly
listed ex abundantia cautela, to remove any doubt that if the owner does not pay for these benefits, a
lien is exercisable on the vessel for non-payment. The lien in respect of social insurance
contributions is exercisable for contributions deducted by the ship-owner (employers) but not paid
34
In Connor v. The Flora (1898) 6 Ex. C.R.131, a candy seller employed on board a ship was held to be eligible to
enforce a lien for her unpaid wages. Section 158 of the GSA, 2003 requires that every Ghanaian ship of one
thousand gross tons or more trading beyond the waters of Ghana carry a certified cook.
35
Tetley, supra note 11 at 269.
36
Llido v. The Lowell Thomas Explorer [1980] 1F.C.339, a marine engineer hired to inspect a vessel at port and to
verify that she could sail was held not to be a “seaman” because he was not employed on board the vessel and could,
therefore, not exercise a lien on the vessel.
37
GSA, 2003, Section 481.
38
Elmvile No.2 [1904] P. 442.
39
GSA, 2003, Section 144.
40
Tetley, supra note 11 at 274.
41
GSA, 2003, section 142. See also The Great Eastern (1867) L.R. I A & E 384. In The Fort Morgan v. Jacobsen
(1919) 59 S.C.R. 404, the Supreme Court of Canada granted a master the wages due him up to the time of his
improper dismissal and 3 months additional wages, as damages, as well as his repatriation expenses. However,
where a seafarer’s contract of employment is terminated with the consent of the seafarer, he would not be entitled to
a lien.
7
to the operators of the social insurance scheme.42 In this light, the lien is exercisable by the social
insurance operators, and not the crew, against the vessel. However, claims of social insurance
operators in respect of contributions due to the ship-owner are not secured by a maritime lien.43
Salvage Claims
Another maritime lien recognized by the GSA, 2003 is reward for salvage of the vessel. 44 Although
salvage claims may adversely affect the security of mortgagees, its impact would not be felt if
adequate insurance provision is made for perils at sea. In any case, salvage operations take
precedence over all other claims, including the mortgagee’s claim, because it is the salvor’s exertions
that preserved the property for the benefit of all other claimants.45 In other words, but for the
salvage operation the security would have been lost.
The GSA, 2003 retains the common law rule that no remuneration is due to a salvor if the salvage
operation yields no useful result.46 The other requirements that must be satisfied in order to entitle a
salvor to remuneration are that the property must be in danger and the services must be voluntary. 47
Properties that could be salved include human life, the vessel, cargo, freight at risk and the wreck.48
However, under the GSA, 2003, a salvor’s right to exercise a lien arises only in respect of “reward
for salvage of the vessel”.49 This wording of the provision effectively precludes a salvor from
exercising a lien against the person salved50 or cargo or the wreck. This fundamentally changes the
common law position in Ghana, where hitherto, a maritime lien was exercisable not only against the
vessel but against the salved cargo and the wreck.51 Perhaps, the word “reward” in the provision also
excludes the lien in respect of the special compensation payable to a salvor in circumstances where
42
Tetley, supra note 11 at 267. See also Berlingieri, supra note 8 at 63.
Ibid.
44
GSA, 2003, Section 66 (c).
45
Berlingieri, supra note 8 at 66. See also Gilmore and Black, supra note 10 at 738.
46
GSA, 2003, Section 376. See the English case of The Zephyrus [1842]166 E.R. 596 at 597.
47
Tetley, supra note 11 at 331.
48
The Act defines “property” in relation to salvage as any property not permanently and intentionally attached to the
shore line and includes freight at risk”. See section 370; see also The Gas Float Whitton No.2 [1896] P. 42 at 63.
49
GSA, 2003, Section 66 (c).
50
Historically, salvors had no liens for life salvage, because there was no property that could be arrested. However,
Dr. Lushington has pointed out that where lives as well as property are saved, the court gave a higher award. The
criteria adopted by the GSA in fixing the salvage award follow Dr. Lushington’s approach by awarding a reasonable
amount where lives are saved. See sections 373 and 382.
51
Tetley, supra note 11 at 362.
43
8
the vessel itself or cargo poses a threat to the environment and the salvor has failed to earn a reward
for it.52
Who then is entitled to claim a salvage lien? Under the GSA, 2003 all persons who perform salvage
services are entitled to claim a salvage reward. To borrow the words of the court in The Waterloo:
“The clearest right they who have saved lives and property at sea should be rewarded for their
salutary exertions”. 53 Therefore, any one who takes part in salvage operations that saved, among
others, a vessel is entitled to exercise a lien on the ship. These persons would include seafarers, cargo
owners or even passengers whose services exceed what would ordinarily be expected of them.54
Where the government of Ghana renders salvage services to salve a vessel, it can also exercise a lien
on the ship.55
However, a salvage lien cannot be exercised against a non-commercial cargo owned by a state
entitled, at the time of the salvage operations, to sovereign immunity. It can also not be exercised on
humanitarian cargoes donated by a state where the state has agreed to pay for salvage services
rendered in respect of the humanitarian cargo. 56
Collision Liens
Collision damage giving rise to maritime lien must result from the direct or indirect activity of the
vessel.57 Although the vessel must be the instrument of the damage, the crew’s acts are attributable
to the ship.58 Collision liens arise when a ship causes damage to another ship or other property
52
GSA, 2003, Section 385. This section domesticates the special compensation regime for environmental harm
under the Salvage Convention, 1989, Art.14. See Berlingieri supra note 8 at 64. Contra.Tetley, supra, note 11 who
argues that a maritime lien for salvage should extend to all forms of salvage remuneration, including special
compensation.
53
165 E.R.1537 at 1538.
54
The Sava Star [1995] 2Lloyds Rep. 143,141-144.
55
GSA.2003, Section 402.
56
Ibid. Section 393.
57
Tetley supra note 11 at 317.
58
Earlier common law cases sought to distinguish the crews’ acts from that of the ship. For example, in the
‘wisdom’ of the English House of Lords in Currie v. McKnight [1897] A.C.97, “instrument of damage” meant that
the negligent or willful act should be that of the ship and not that of the crew. In Currie v M'Knight, the crew
members cut loose moorings attaching their ship to an adjacent ship causing that ship to drift and incur damage. It
was held that the cause of the damage was the conduct of the crew in cutting the moorings and the ship herself could
not be said to be the instrument of the damage.
Recent decisions have taken a more pragmatic and sensible view of the matter, attributing the crews acts to the ship.
See The Eschersheim [1976] 2 Lloyds Rep. 108; and The Rama [1996]2Lloyds Rep. 281.
9
external to it or to an object59 as a result of a wrongful act of navigation for want of skill, or
negligence.60 Therefore, a collision lien would not arise unless it is proved that those legally in charge
or in possession of the vessel were in breach of a duty they owed to the injured vessel or object.
Under the GSA, 2003 where property is damaged as a result of non-observance of Collision
Regulations published by the Minister,61 there is a presumption that the damage was caused by the
willful default of the person in charge of the ship, unless it is shown that the circumstances of the
case do not fall within the Regulation.62
Collision liens under the GSA, 2003 arise from tort and, therefore, exclude all contractual claims for
cargo, containers and passengers’ effects carried on the vessel.63 Reference in the section to “physical
loss or damage” excludes claims based on pure economic loss. 64 In other words, pure economic loss
arising from damage caused by the vessel does not attract a maritime lien.
Personal injury claims
Maritime liens created by personal injury or loss of life arise from harm or death caused to a person.
This harm or death may occur either on land or on water.65 However, it must have a direct nexus
with the operation of the vessel,66 although direct physical contact with the vessel is not required in
order to give rise to the claim.67
Unlike collision claims, personal injury or death claims arise from both contracts of affreightment
and in tort. Therefore, the dependants of a deceased passenger or a passenger who suffers harm on
board a vessel may exercise a lien on the vessel, grounding her claim either in tort or in breach of
59
Such objects may include a dock, harbour, landing stage in port, a wharf, break-water, and a pier. For example, in
The Merle, Sir Robert Phillimore declared that there was a maritime lien against a ship for damage caused by it to a
pier.
60
Tetley, supra note 11 at 387.
61
GSA, 2003, Section 217.The Minister is empowered to make Collision Regulations for the purpose of preventing
collisions at sea and in all navigable waters; in respect of the lights to be carried and exhibited; and in respect of
steering and sailing rules to be observed by ships.
62
Ibid. Section 220
63
Ibid. Section 66(e).
64
Ibid. See also Berlingieri supra note 7 at 65.
65
Ibid. Section 66(b).
66
Ibid.
67
Tetley, supra note 11 at 389.
10
contract. In addition, a third party on land, or a float of a non-ship, for example, a raft, would be
entitled to enforce a maritime lien against a ship. 68
Under the GSA, 2003 where a person suffers harm or dies on board a vessel due to the concurrent
negligence of that vessel and another vessel, the owners become jointly and severally liable.69 To my
mind, the injured person or a deceased’s dependent has two options opened to him or her. First, he
or she may enforce a lien against both or all the vessels to the extent of their liability. Secondly, he or
she may enforce a lien on only one ship in satisfaction of the whole claim.70
Exclusion of maritime liens for Claims arising from radio active and chemical substances
No maritime lien attaches to a vessel to secure a claim arising from loss of life or personal injury or
collision damage when death or harm or damage is caused by oil transported by sea for which
compensation is payable to the claimant under an international convention, for example, the
International Convention on Civil Liability For Oil Pollution Damage, 1969,71 or under the laws of Ghana
which provide for strict liability and compulsory insurance or other means of securing the claim.72
Secondly, maritime lien does not attach to a ship where harm or death or damage is caused by
radioactive substances or in combination with toxics, explosives or other hazardous or noxious
substances.73
Maritime Liens for Ports, Canal and Other Waterway Dues and Pilotage
Granting maritime liens for ports, canal and other waterway dues is the most fundamental change
introduced by the GSA, 2003 to the subject of maritime liens. At common law, none of these claims
were secured by a maritime lien. Port, harbour, canal, docks and other waterway dues were treated as
68
Ibid.
GSA, 2003, Section 425.
70
In this wise, the Act gives the vessel owner who pays the claimant to receive, by way of contribution, any excess
payment he has made from the other concurrent tortfeasors. See Section 427.
71
Examples of these international conventions are the International Convention on Civil Liability for Oil Pollution
Damage, 1969, as amended by the 1992 Protocol signed in Brussels , November 29, 1969 (1970) I.L.M. 45, 973;
U.N.T.S. 3, came into force June 19, 1975, and the International Convention on Liability for Damage in Connection
with the Carriage of Hazardous and Noxious Substances by Sea, London, May 3, 1996, 35 I.L.M, 1415, which
governs liability and compensation for damages caused by the carriage by a ship of a wide variety of potentially
harmful substances, including oil in bulk, dangerous liquids and chemical substances.
72
GSA, 2003, Section 71(a).
73
Ibid. Section 71(b).
69
11
special legislative rights with rights of detention and sale.74 This right gave port authorities priority
over crew’s lien for unpaid wages,75 over collision tort liens76 and over a salvor’s lien.77 On the other
hand, pilotage claims were ranked after the traditional maritime liens and mortgages because they
were considered neither essential nor were they for the common benefit of maritime travels.78
However, under the GSA, 2003 both pilotage claims and ports and waterway dues have been
elevated to the status of maritime liens ranking after crew’s wages, personal injury claims and salvage
claims.79 The consequence of their new status is that these claims, like the other maritime liens,
follow the vessel even into the hands of bona fide purchasers or change of nationality.80
74
Harbour, Docks and Piers Clauses Act, 1847, 10 & 11 Vic. c.27.
The Emille Millon [1905] 2 K.B. 817.
76
The Sea Spray [1907] P.133 at 136.
77
The Veritas [1901] P.304.
78
Tetley, supra note 11 at 459.
79
GSA, 2003, section 66 (d).
80
Ibid. Section 70. See also The Premier Herd (1865) 6 L.E.R 493.
75
12
Part III
Rules and Order of Ranking Maritime Liens
The rules of ranking fix the order or priority of maritime liens and claims when funds available from
a forced sale are insufficient to settle all claims.81 The concept of maritime lien, like “antipodean
fauna”,82 has unique rules for determining priority, with sometimes strange results. Basically, with the
exception of special legislative rights and custodia legis, maritime claims rank ahead of non-maritime
claims and maritime liens claims outrank claims which are maritime but not liens.83 Under the GSA,
2003 where upon a forced sale of a vessel to which maritime liens, registered mortgages and other
charges attach, the proceeds of the sale are distributed in the following order of priority. First
priority is given to custodia legis expenses, that is, the cost of arresting the vessel and the cost of
rendering a fund available by the sale of the res.84 These sums would include the cost of upkeep of
the vessel, crew wages, advertisement of the sale,85 appraisal fees and commission and the cost of
making the application for the arrest.86
The next in line is special legislative right which the government gives to itself as an act of selfinterest and protection to recover the cost it incurs in recovering stranded or sunken vessels in the
interest of safe navigation or the protection of the marine environment.87 It must be emphasized
that in order to recover this cost it must be proved that the wreck posed a danger to safe navigation
or to the marine environment.88
Traditional maritime liens are next in order after the special legislative rights.89 With the exception of
salvage liens which take priority over all prior liens, maritime liens rank in the following order: crew’s
wage and other benefits; claims in respect of loss of life or personal injury; claims for ports, canal
and other waterway dues and pilotage; and damage caused by the operation of the vessel. 90 Salvage
81
Tetley, supra note 11 at 890; Gilmore and Black supra note 10 at 734.
Charles Donovan, supra note 16 at 351.
83
Gilmore and Black, supra note 11 at 734.
84
GSA, 2003, Section 74(2).
85
Ibid. Section 73.
86
Christopher J. Giaschi, “Law of Priorities”, www.admiraltylaw.com/papers/priorities.htm.
87
GSA, 2003, section 74(5).
88
It appears that unpaid fines imposed on the owners may also be deducted from the proceeds of the sale. See
section 452.
89
Ibid. Section 68.
90
Ibid. Section 68(1).
82
13
liens have priority over all prior liens because the salvage operations yield to the benefit of all prior
liens. Put differently, but for the salvage operation all prior liens would have extinguished with the
loss of the vessel.91 Maritime liens within each category recognized under section 66 rank pari pasu,
that is, the first in time has priority.92 The same cannot, however, be said of salvage liens which rank
inter se in inverse order based on the time when claims they secure accrued. The wisdom in this
inverse order of ranking, in the words of Bateson J., is “because the later salvor made it possible that
the earlier salvor should get paid”.93
Following traditional maritime liens are ship builders and repairers possessory lien holders who have
a right of retention.94 In light of the express unambiguous rankings provided under the Act, it
appears that the common law rule that held that when a ship- builder or repairer who had a
possessory lien that predates maritime liens, actually ranks ahead of maritime liens, 95 is of doubtful
legal significance in Ghana. In Ghana, it seems the traditional maritime liens take precedence over
possessory liens irrespective of when they were created. After possessory liens are satisfied,
registered mortgagees and other preferential rights are settled and, the residue, if any, paid to the
ship-owner.96
Effect of Forced Sale
The effect of a forced sale in Ghana, as elsewhere, is to extinguish all liens, registered mortgages
except those assumed by the purchaser with the consent of the holders, and other encumbrances.97
The proviso to this is that at the time of the sale, the vessel must be within the jurisdiction of Ghana
and the sale must be conducted in accordance with the Act.98
One may be tempted to ask whether the above ranking is sacrosanct, or they are alterable under
certain circumstances. Consider, for example, a scenario where as a result of negligent navigation by
the crew of vessel ‘SS DJOKOTO’, the latter causes damage to vessel ‘SS KINGDOM’S passengers,
91
Berlingieri , supra note 8 at 68. See also The Veritas [1901] P. 304, 312-313; The Stream Fisher [[1937] P. 73.
GSA, 2003, section 68(2).
93
The Stream Fisher [1937] P.73 at 83.
94
GSA, 2003, section 74(6).
95
The Tergeste [1903] P. 26. See also Edgar Gold et al supra note 25 at 290; Tetley, supra note 11 at 539-540.
96
GSA, 2003, Section 75.
97
Ibid. Section 74(1). The Ghana Maritime Authority is obliged to issue a certificate, at the request of the purchaser,
including that the vessel is free of all encumbrances except those assumed by the purchaser. See section 76(1)
98
Ibid.
92
14
thereby entitling the latter to exercise a lien on SS DJOKOTO’. However, proceeds of the forced sale
are insufficient to settle all claims secured on the vessel. In such a circumstance, is it justifiable for
the court to alter the rankings to pay for the personal injury claims ahead of crew’s wages? In other
words, can principles of equity be introduced to alter this ranking?
To my mind, the answer should be in the affirmative since equity is a recognized source of law
under the 1992 Constitution of Ghana.99 Equity permeates all branches of the law, including
admiralty law. An American judge has lucidly reminded us that: “The Chancellor is no longer fixed
to the woolsack. He may stride the quarter–deck of maritime jurisprudence and, in the role of
admiralty judge, dispense, as would his landlocked brother that which equity and good conscience
impels.”100 This is the path that should be taken if the judge realizes that an unbending worship of
the rankings would result in injustice to the competing maritime lien claimants. Though Professor
Tetley cautions that alteration should be done with great prudence in order not to destabilize
uniformity in the application of the order of rankings,101 I think that justice or fairness must not be
sacrificed on the altar of uniformity. Where injustice would result from following the ranking set out
in the Act, equity must intervene to alter the order.102 In any case, if all jurisdictions alter this ranking
having fairness as their guiding principle, harmony or uniformity in the order of ranking would not
be disturbed.
Extinction of Maritime Liens
Although maritime liens are invisible and follow the vessel everywhere, they are not invincible and
may be extinguished in a number of ways. The obvious method is the payment and acceptance of
the debt or underlying claim owed by the ship-owner or charterer.103 However, a maritime lien is
extinguished where the claimant elects to take securities instead of cash or where on being offered
her wages, leaves them on deposit.104 Secondly, a maritime lien may be extinguished by the express
99
1992 Constitution, Art. 11
Compania Anonima Venezolana de Navegacion v. A.J. Perez Export Co. 303 F.2d 692, 699, 1962 A.M.C.1710,
1720 (5th Cir.1962).
101
Tetley, supra note 11 at 586.
102
The Lind Flor (1857) 166 E.R. 1150.
103
Gilmore and Black, supra note 11 at 588. See also E. Gold, et al, supra note 25 at 285.
104
E. Gold et al supra note 25 at 285. See The Rainbow (1885) 53L.T.91, 5 Asp. 479.
100
15
waiver of the lien holder. Under the GSA, 2003 if a seafarer desires to waive a lien, he must sign an
attested release instrument.105
A maritime lien may also be extinguished by the loss or destruction of the res.106 Nevertheless, the
lien holder may bring an action in personam against the ship owner to recover his claim.107
Finally, a maritime lien may be extinguished by the effluxion of time. Generally, there is an
obligation on the lien holder to enforce his claim with reasonable diligence.108 This means he must
bring an action to enforce his or her right within the shortest possible time after his or her right
accrues. Under the GSA, 2003 a lien is extinguished after a period of one year, unless prior to the
expiring of the period, the vessel has been arrested or seized, and the arrest or seizure leads to a
forced sale.109 Time will tell if this limitation period is a realistic time frame within which to enforce a
maritime lien.
Despite the fact that the GSA, 2003 has introduced novel provisions on maritime liens in meeting
the needs of the maritime industry and bringing the law of Ghana on the subject in conformity with
internationally accepted standards, the provisions of the Act suffer from some patent defects that
must be cured or addressed to secure the full benefits of maritime liens to the industry. Two of such
concerns are the absence of assignments and subrogation of maritime liens and the failure of
parliament to create some National Maritime Liens.
105
GSA, 2003, section 127.
E. Gold et al supra note 25 at 287.
107
Ibid.
108
The Bold Buccleugh, supra note 10 at 285.
109
GSA, 2003,Section 72(1).
106
16
Part IV
Critique
Absence of Rights of Assignments and subrogation of maritime liens
Subrogation is one of the key principles of marine insurance law and a necessary incident of the
contract of indemnity. The rule of subrogation basically provides that on settlement of a loss, the
indemnifier (insurer) is entitled to step into the shoes of the debtor or assured. Having paid the
assured for the loss, he is subrogated to all the rights and remedies of the assured for the loss in and
in respect of the subject matter from the time of the casualty causing the loss. According to Lord
Blackburn in Bumard v Rodocanachi110 the doctrine of subrogation is rule of law and of equity. In
his words:
“The general rule of law( and it is obvious justice) is that where there is a contract of indemnity and
a loss happens, anything which reduces or diminishes the amount which the indemnifier is bound
to pay ; and if the indemnifier has already paid it, then anything which diminishes the loss comes
into the hands of the person to whom he has already paid the full indemnity is entitled to be
recouped by having that amount back”. 111
The objective of subrogation is to prevent the assured from taking with both hands, that is to say an
assured is not permitted to recover more than his actual loss. He cannot take from the insurer
(indemnifier) and from the person who has caused the damage insured112. This therefore permits the
insurer to step into the shoes of the insured and to sue in his name any person through whose
default or wrongdoing the loss may have occurred. However, the insurer, is strictly confined to the
rights of the assured, and cannot, by virtue of the doctrine of subrogation, acquire rights which the
assured never possessed, for example, a right to sue himself when two of his own vessels collide
with each other.113
In essence, the right of subrogation is engrained in the common law and to some extent in statutory
law. In Ghana, for example, Section 16(1) of the Contracts Act, 1060(Act 25) provides that: “any
110
[1882] 7 App Cas 333.
[1882] 7 App Cas 333 at 339
112
Castellain v Preston,
113
Simpson v Thomson (1877) 3 App Cas 279
111
17
guarantor, or any other person being liable together with another for any debt or legal duty, who
pays the debt or performs the duty, shall be entitled to have assigned to him any security held by the
creditor and to stand in the place of the creditor and use all remedies available to him in respect of
the debt or duty”.
It is instructive to point out that although the Ghana Shipping Act, 2003 makes some references to
the concept of subrogation or assignment of some rights, it is submitted that neither does these
provisions apply to maritime liens nor do they answer the question whether the subrogation or
assignment carries with it the simultaneous assignment or subrogation of the maritime lien, if it is a
claim secured by a maritime lien.114 It is critical to state that the coming into force of the GSA seems
to have cast some doubts or shadow over the principle of subrogation as it particularly relates to
maritime liens in Ghana. This state of confusion stems from the fact the law makers in drafting the
Ghana Shipping Act, 2003 for whatever reason decided to exclude the corresponding provision in
the International Convention on Liens and Mortgages, 1993 which squarely addresses the problem. Article
6 of the Convention provides that: “The assignment of or subrogation to a claim secured by a
maritime lien set out in [section 66 of GSA] entails the simultaneous assignment of or subrogation
to such maritime lien”.115
In this state, it is clear that the subrogation of a maritime claim concurrently involves the assignment
of or the subrogation of such a maritime lien. This enables the insurer to step into the shoes of the
assured and entitles him to the remedies that the latter may be entitled.
114
For example, section 422(5), which deals with situations where a ship-owner or a salvor seeks to limit his liability and
has provided security or guarantee, provides that “where a person liable or the insurer of that person has settled the
claim, the person shall be subrogated to the rights of the person so compensated would have enjoyed …before the
proceeds of the security or guarantee are distributed”. This provision is vague, if not absurd, for a number of reasons.
First, the person liable in this context is either a ship-owner or a salvor. One would be putting too much strain on
language to interpret this provision to mean that a ship-owner who settles his indebtedness to a seafarer becomes vested
with the seafarer’s maritime lien because such an interpretation clearly sins against a cardinal rule of admiralty law,
namely, that a person cannot exercise a lien on his own property. 114 See also Section 427(1) and (2) which limits
subrogation of the right to sue for damages and nothing more.
115
International Convention on Maritime Liens and Mortgages, 6 May 1993, I.L.M.353 (entered into force in
September 2004), Art 6.
18
However, with the exclusion of this provision in the Ghana Shipping Act, it is attractive to argue
that its exclusion is an indication that Parliament does not intend insurers (indemnifiers) of maritime
claims to be subrogated to maritime liens in Ghana. This interpretation is consistent with a
rudimentary rule of statutory interpretation that where from among a list of items or a number of
provisions all of which are capable of being included, but only some are included, those not included
are obviously excluded116.
This apparent quietude of a provision categorically affirming an assignee’s or subrogee’s right a
maritime lien appears innocuous to the uninitiated. However, with the benefit of the history of the
subject one soon realizes that this confusion is real to industry players.
The position that Ghana seems to have taking in excluding the subrogation or assignment of
maritime liens only blindly perpetuates an alleged common law prohibition or reluctance to assign or
subrogate maritime liens, and the English case of The Petone117 is often branded or heralded as
authority for this proposition. In my considered view, even if the alleged common law prohibition
against subrogation and assignment was an established common law rule, its usefulness is today
discredited and out of touch with the current trend of judicial authority on maritime liens, and
Ghana should not have followed it.
In The Petone, the plaintiff paid the crew’s wages and made some disbursements at the request of the
master of the ship. The plaintiff brought an action in rem to exercise a lien on the vessel in respect of
the payments the plaintiff had made. Hill J., held, after reviewing some authorities, that a third party
who pays seamen’s wages is not subrogated by the law to the maritime lien for the wages of the
seamen.
The Canadian courts have also long held that a debt for wages is assignable at common law, but the
lien expires with the payment of the debt.118 The only exception to this rule is that seamen cannot
assign their wages in anticipation of payment. Unfortunately, these decisions never gave any reason
why a maritime lien could not be assigned or subrogated.119
S. Y. Bimpong –Buta on Interpretation in Ghana, The Law of Interpretation in Ghana, (Accra: Advanced Legal
Publications, 1995), 93-107.
117
The Petone [1917] P. 198. See also The Lyons, 6 Asp. M.L.C. 199.
118
The Eliza Fisher (1895) 4 Ex.L.R.461 at 469.
119
Gilmore and Black, supra note 11 at 633-634.
116
19
If these decisions stood alone, it would have concluded the matter. However, review of the case law
suggests that the issue of whether a maritime lien can be subrogated at common law is inconclusive.
A litany of judicial authorities, supported by Sir Robert Phillimore and Dr. Lushington,120 two of the
most distinguished and influential admiralty judges, have held that a man who pays off the privileged
claimant stands in the shoes of the privileged claimant, and may bring an action in his own name to
enforce that privileged claim.121 In The Tagus122, a Mr. X, before he became master, had been supercargo, and while supercargo had paid the crew’s wages and made other disbursements. He claimed
these sums, and he was allowed to recover so much of those disbursements as were payment of the
crew’s wages against the vessel in priority to mortgagees.
Following from the above discussion, it is clear that the alleged common law rule against the
assignment or subrogation of maritime liens is neither a conclusive nor an established rule of the
common law, and does not constitute solid grounds for the exclusion of the right of assignment or
subrogation in Ghana.
Even if it is accepted, for the sake of argument, that the common law position is that stated by Hill
J. in The Petone, it leaves many questions unanswered. First, The Petone decided only the subrogation
of liens regarding seamen’s wages, and no other maritime lien. This decision must be taken in the
context that seamen’s “sacred lien” for wages is unique among all the liens and seafarers have
traditionally been protected by the admiralty courts.123 The Petone never resolved the possibility of
subrogation by contract or assignment. Hill J himself in The Petone declared: “I say nothing about
contractual assignments of debts or claims supported by maritime liens”.124 Neither did it decide the
subrogation or assignment of other maritime liens. Indeed, in The Petone, Hill J. reaffirmed
120
It must, however, be pointed out that Dr. Lushington was not consistent in holding this view. He sometimes
preferred that the subrogation of liens be done with the sanction of the courts. See ….
121
The Albion (1872) 1Asp. M.L.C.481; The W.F. Safford (1860)Lush.69 at 71; In The Tagus, [1903] P.44, a Mr.
X, before he became master, had been super-cargo, and while supercargo had paid the crew’s wages and made other
disbursements. He claimed these sums, and he was allowed to recover so much of those disbursements as were
payment of the crew’s wages against the vessel in priority to mortgagees.
122
[1903] P.44
123
Tetley, supra note 11 at 404.
124
[1917] P. 198
20
assignment by a bottomry holder who may endorse over his bond to a third party who pays off his
claim.125
In any case, it is my humble opinion that since the decision in The Petone was given after 1874, it does
not form part of the common law inherited by Ghana and only has persuasive authority.
Furthermore, the current tide of judicial decision in some common law countries, like Canada and
United States, strongly suggests a change in judicial attitude towards the so-called common law
prohibition against subrogation of maritime liens. Recently, the Supreme of Canada held in Metaxas
v.Galaxias, that an organization which paid crew wages were subrogated to the seamen’s wages and
were, therefore, paid ahead of mortgagees.126
If Ghana is minded to make the most capital of the maritime industry and maritime voyage in
particular, it is my contention that it must permit the assignment or subrogation of maritime liens.
This is because allowing assignees and subrogees of maritime liens to step into the shoes of
privileged claimants facilitates the efficient operation of a vessel and helps to preserve other liens
that would have been extinguished by the premature sale of the vessel to satisfy some higher ranking
liens. This is borne out by the practice in the maritime industry where a lower lien holder pays off a
higher lien holder who would otherwise have sold the vessel at a time when the proceeds of the sale
would have been sufficient to settle only his claim to the detriment of the other lien holders and
claimants.127 Permitting a lower lien holder to pay off the higher lien holder and stepping into his
shoes preserves the vessel to be sold at a later opportune time when the proceeds would be adequate
to satisfy all the claims on the vessel.
If Ghana is interested in encouraging persons and financiers of vessels in times of grave danger to
the vessel, crew and goods parliament must amend the law to reflect current legal and maritime
practice. Alternatively, a definite determination or pronouncement on the assignment or subrogation
of maritime liens by the superior courts of the land is called for to settle or clear the current state of
confusion.
125
Ibid at 205. See also The Catherine, (1847)166 E.R. 863; The Kammerhevie Rosenkrants 166 E.R. 23.
(1988) See also Int. Paint v. Mission Viking 1981 AMC U. S. Court of Appeals (5the Cir.) 1487; Pierside
Terminal Operators v. M/V Floridian 374 F.Supp.27
127
Tetley, supra note 11 at 339.
126
21
Secondly, settling this matter is of great importance to maritime industry players in Ghana since the
outcome plays a key role in the determination of priority of paying claims secured on the vessel. For
example, if it is accepted that an insurer or indemnifier who pays a maritime lien steps into the shoes
of the compensated, it means that that person has priority over other creditors such as mortgagees.
However, if it is the position that an indemnifier of a maritime lien does not so step into the shoes
of the compensated fellow then it means that other creditors like mortgagees have a priority.
Creating National Maritime Liens –Making a case for towage freight liens
In addition to the traditional maritime liens provided under section 66 of the GSA, the Liens
Convention gives contracting party states, like Ghana, the right to create national maritime liens.
Although national maritime liens would have the same characteristics as convention liens, a shorter
period of six months or sixty days after the sale of a vessel to a bona fide purchaser is provided for
their extinction.128
This provision gives Ghana the right to create national maritime liens which, in its own assessment,
would facilitate maritime operations in the country. Admittedly, embedded in the right to create
national maritime liens is also the right not to create any. Ghana chose the latter, preferring not to
create any national maritime lien. The wisdom in not exercising this right is not clear. However, it is
my considered opinion that parliament would have done the maritime industry in Ghana a lot of
good if it had created a few national maritime liens that are essential to the operation of vessels. One
essential service for which parliament could usefully have created a national maritime lien is towage
freight.
Long ago, Dr. Lushington defined towage as “the employment of one vessel to expedite the voyage
of another, when nothing more is required than accelerating her progress”.129 Usually, ships of all
sizes, including those having their own means of propulsion, require the assistance of another vessel
to be navigated safely especially in port areas. This assistance may be required to enable a ship to
International Convention on Maritime Liens and Mortgages, 1993, [“Convention Liens” in contradistinction to
national maritime liens].
129
The Princess Alice (1849) 166 E.R. 914 at 915.
128
22
make or leave a berth, dock, or canal, or to perform any maneuver in confined areas. 130 In fact,
towage is compulsory in Ghana’s two main harbors for vessels over 1000GT. The tugs tow arriving
vessels at the harbor entrance and departing vessels along the berth.131 Towage services are crucial to
the shipping industry because both vessels that are self–propelled and those that are not selfpropelled carry on maritime activities such as navigation, fishing and commerce.132 This clearly
means that towage services are indispensable, particularly for non-self propelled vessels like dumb
barges.
At common law, towage freight gives rise to a statutory right in rem, and it is not secured by a
maritime lien.133 Technically, a statutory right only confers on the tower a right to pursue a particular
judicial action to enforce payment of his freight as a debt.134 The drawback to this right is that it is
defeated by the voluntary transfer of title and forced sale of the vessel.135 This limitation puts the
tower at a severe disadvantage, and marginalizes him in the distribution of the proceeds of the sale
of a vessel during a forced sale.136 It is common knowledge in admiralty practice that proceeds are
often not adequate to pay for all liens, let alone an unsecured right to claim towage freight. Granting
towage freight enables the tower to arrest the encumbered vessel and to conduct proceedings for
relief against that vessel, without the necessity of locating the owner of the property. This remedial
aspect of the right is of considerable value in the field of maritime law, where the identity and
location of the owner may be extremely difficult to ascertain and, the opportunities for enforcing the
claim rare and of extremely short duration. Furthermore, the existence of the lien has procedural
consequences, in that it secures a preference for the lien holder in the ranking of claims against a
limited fund for the satisfaction of the debts of the property; and that preference affords the
maritime claimant a measure of security for the claim.137 This situation calls for concern because it
constitutes unjust enrichment on the part of the ship-owner for the tower’s services to be used in
130
E.Gold et al supra note 25 at 574.
Online:http://www.otal.com.ghana. See also http//:www.mapship.com/tema/htm.
132
Vessel is defined to include “every description of watercraft with its equipment whether self-propelled or not that
is used or capable of being used on water as a means of transportation for the purposes of navigation, fishing or
commerce or any other purpose”. See Section 481.
133
William Tetley, “Liens for Towage Freight” (1984) 15 J. Mar. L &Com.199. See also Carow Towing v.
EdmcWilliams (1919)18 Ex.C.R.470, where it was held that there is no maritime lien for towage claims, and that
mortgages ranked ahead of towage freight.
134
E. Gold et al supra note 25 at 290.
135
Ibid.
136
P. Sotioropoulous, “Liens for Necessaries and the Arrest of Ships under Greek Law” (1987) 12 Tul. Mar. L.J.
299 at 315.
137
Gilmore and Black, supra note 11 at 622.
131
23
facilitating the voyage of vessel and to generate freight for the ship-owner, but not be paid. It can be
argued that the tower can bring a personal action against the owner to claim his unpaid freight.
Though this argument is plausible, it is a notorious fact that in most cases, the vessel constitutes the
sole asset of the company or owner.138 Therefore, the forced sale or voluntary transfer of the vessel
would invariably deny the tower his right to be paid.
It also makes ample sense to create a national maritime lien for towage to protect towers because
towage service providers, unlike other claimants, like mortgagees, may be in a disadvantaged
position to inquire into and remain abreast with the financial affairs of the owners or others in
possession of the vessel. The first indication that a tower may have as to the financial insolvency of
the owners may be where the vessel is arrested and notice is given of the arrest.
Parliament must, therefore, take a second look at the GSA, 2003 to create a few national liens,
especially for towage freight. Towage service providers must be protected from this exploitation if
they are to continue in the business of providing this essential service to the industry.
Conclusion
The place of maritime liens in the shipping industry in Ghana cannot be overemphasized. As a
security device, it lessens the risk incurred by persons who extend credit facilities to vessels whose
owners are unable, contemporaneously, to make payment for the service rendered to the vessel or
the voyage. It is salutary that Ghana has acceded to the International Convention on Liens and Mortgages,
1993, and has implemented a significant proportion of its provisions in national legislation. Thus,
the GSA, 2003 while confirming traditional maritime liens like crew’s wages, salvage claims, has also
elevated other claims that, hitherto, were not secured by maritime liens. These include pilotage and
ports and canal dues. At the same time it has done away with bottomry and respondentia maritime
liens which have become obsolete. Nevertheless, the omission of assignment and subrogation of
liens from the GSA, and reluctance of the law-makers to create a few unarguably useful national
maritime liens constitute blind spots in the Act which must be healed. The means by which these
blind spots could be healed may be parliamentary amendment of the Act or through judicial activism
to fill the gaps.
138
Tetley, supra note 11.
24
Conclusion
The place of maritime liens in the shipping industry in Ghana cannot be overemphasized. As a
security device, it lessens the risk incurred by persons who extend credit facilities to vessels whose
owners are unable, contemporaneously, to make payment for the service rendered to the vessel or
the voyage. It is salutary that Ghana has acceded to the International Convention on Liens and Mortgages,
1993, and has implemented a significant proportion of its provisions in national legislation. Thus,
the GSA, 2003 while confirming traditional maritime liens like crew’s wages, salvage claims, has also
elevated other claims that, hitherto, were not secured by maritime liens. These include pilotage and
ports and canal dues. At the same time it has done away with bottomry and respondentia maritime
liens which have become obsolete. Nevertheless, the omission of assignment and subrogation of
liens from the GSA, and reluctance of the law-makers to create a few unarguably useful national
maritime liens constitute blind spots in the Act which must be healed. The means by which these
blind spots could be healed may be parliamentary amendment of the Act or through judicial activism
to fill the gaps.
25
BIBLIOGRAPHY
JURISPRUDENCE
Compania Anonima Venezolana de Navegacion v. A.J. Perez Export Co. 303 F.2d 692, 699, 1962 A.M.C.1710, 1720
(5th Cir.1962).
Connor v. The Flora (1898) 6 Ex. C.R.131.
Comeau’s Sea Food Ltd. v. Frank and Troy [1971] F.C. 556.
Currie v. McKnight [1897] A.C.97.
Int. Paint v. Mission Viking [1981] AMC U. S. Court of Appeals (5th. Cir.) 1487
Heward-Mills v. R.T Briscoe (Gh.) Ltd. [1977] 1G.L.R.138.
Llido v. The Lowell Thomas Explorer [1980] 1F.C.339.
Scot Steel Ltd. v. The Alarissa [1996] 2 F.C. 883.
The Bold Buccleugh (1850-1) 7 Moo P.C.267.
The Catherine, (1847)166 E.R. 863.
The Eschersheim [1976] 2 Lloyds Rep. 108.
The Emille Millon [1905] 2 K.B. 817.
The Fort Morgan v. Jacobsen (1919) 59 S.C.R. 404.
The Gas Float Whitton No.2 [1896] P. 42.
The Great Eastern (1867) L.R. I A & E 384.
The Kammerhevie Rosenkrants 166 E.R. 23.
The Lind Flor (1857) 166 E.R. 1150.
The Premier Herd (1865) 6.E.R 493.
The St. George [1926] P. 217.
The Rainbow (1885) 53 L.T.91, 5 Asp. 479.
The Sava Star [1995] 2 Lloyds Rep. 143.
26
The Sea Spray [1907] P.133.
The Stream Fisher [1937] P. 73.
The Tergeste [1903] P. 26.
The Tolten [1946] P. 135.
The Waterloo 165 E.R.1537.
The Veritas [1901] P. 304.
The Zephyrus (1842)166 E.R. 596.
LEGISLATION
Ghana Constitution, 1992.
International Convention on Maritime Liens and Mortgages, 6 May 1993, 33 I.L.M. 353 (entered into force
September 2004).
Ghana Shipping Act, 2003 (Act 645).
Merchant Shipping Act, (1963) (Amendment Decree, 1969) (NLCD 372)
Merchant Shipping (Amendment) Law, 1991(PNDCL 248).
Supreme Court Ordinance No. 4, 1876.
MONOGRAPHS
Buabeng, A. G., Maritime Liens, Statutory rights in rem and Mortgages –A comparative Analysis of
Ghanaian and English laws, in Admiral 2, (2006).
Bimpong –Buta S. Y., on Interpretation in Ghana, The Law of Interpretation in Ghana, (Accra:
Advanced Legal Publications, 1995).
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Jackson, D.C. Enforcement of Maritime Claims (London: Lloyd’s of London Press Ltd., 1985).
Tetley, William. Maritime Liens and Claims, (2nd Ed) (Cowanville, Q.C.: Yvin Blais, 1998).
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Berlingieri, Francesco. “The 1993 Convention on Maritime Liens and Mortgages” (1996) 27
L.M.C.L.Q.57.
Donovan, Charles. “Case Comment: St John Marine Co. United States” (I997) 28 J. Mar. L & Com.
351.
Giaschi, Christopher J. “Law of Priorities”, www.admiraltylaw.com/papers/priorities.htm
Jackson, D. C. “International Convention on Maritime Liens and Mortgages, 1993” (1994)
L.M.C.L.Q.12.
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__. “Assignment
and Transfer of Maritime Liens: Is there Subrogation of the Privilege?” (1984) 15 J.
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