THE STATES PARTIES TO THIS CONVENTION,
THE STATES PARTIES TO THIS CONVENTION,
CONSCIOUS of the need to improve conditions for ship financing and the
development of national merchant fleets,
RECOGNIZING the desirability of international uniformity in the field
of maritime liens and mortgages, and therefore
CONVINCED of the necessity for an international legal instrument
governing maritime liens and mortgages,
HAVE DECIDED to conclude a Convention for this purpose and have
therefore agreed as follows:
Article 1
Recognition and enforcement of mortgages, "hypoth????eques" and
charges
Mortgages, "hypoth????eques" and registrable charges of the same
nature, which registrable charges of the same nature will be referred to
hereinafter as "charges", effected on seagoing vessels shall be recognized
and enforceable in States Parties provided that:
(a) such mortgages, "hypoth????eques" and charges have been
effected and registered in accordance with the law of the State in which
the vessel is registered;
(b) the register and any instruments required to be deposited with
the registrar in accordance with the law of the State in which the vessel
is registered are open to public inspection, and that extracts from the
register and copies of such instruments are obtainable from the registrar;
and
(c) either the register or any instruments referred to in
subparagraph (b) specifies at least the name and address of the person in
whose favour the mortgage, "typoth????eque" or charge has been effected
or that it has been issued to bearer, the maximum amount secured, if that
is a requirement of the law of the State of registration, or, if that
amount is specified in the instrument creating the mortgage,
"typoth????eque" or charge, and the date and other particulars which,
according to the law of the State of registration, determine the ranking
in relation to other registered mortgages, " hypoth????eque " and charges.
Article 2
Ranking and effects of mortgages, "hypoth????eques" and charges
The ranking of registered mortgages, "hypoth????eques" or charges as
between themselves and, without prejudice to the provisions of this
Convention, their effect in regard to third parties shall be determined by
the law of the State of registration; however, without prejudice to the
provisions of this Convention, all matters relating to the procedure of
enforcement shall be regulated by the law of the State where enforcement
takes place.
Article 3
Change of ownership or registration
1. With the exception of the cases provided for in Articles 11 and 12,
in all other cases that entail the deregistration of the vessel from the
register of a State Party, such State Party shall not permit the owner to
deregister the vessel unless all registered mortgages, "hypoth????eques"
or charges are previously deleted or the written consent of all holders of
such mortgages, "hypoth????eques" or charges is obtained. However, where
the deregistration of the vessel is obligatory in accordance with the law
of a State Party, otherwise than as a result of a voluntary sale, the
holders of registered mortgages, "hypoth????eques" or charges shall be
notified of the pending deregistration in order to enable such holders to
take appropriate action to protect their interests; unless the holders
consent, the deregistration shall not be implemented earlier than after a
lapse of a reasonable period of time which shall be not less than three
months after the relevant notification to such holders.
2. Without prejudice to Article 12, paragraph 5, a vessel which is or
has been registered in a State Party shall not be eligible for
registration in another State Party unless either:
(a) a certificate has been issued by the former State to the
effect that the vessel has been deregistered; or
(b) a certificate has been issued by the former State to the
effect that the vessel will be deregistered with immediate effect, at such
time as the new registration is effected. The date of deregistration shall
be the date of the new registration of the vessel.
Article 4
Maritime liens
1. Each of the following claims against the owner, demise charterer,
manager or operator of the vessel shall be secured by a maritime lien on
the vessel:
(a) 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, including costs of repatriation and social
insurance contributions payable on their behalf;
(b) claims in respect of loss of life or personal injury
occurring, whether on land or on water, in direct connection with the
operation of the vessel;
(c) claims for reward for the salvage of the vessel;
(d) claims for port, canal, and other waterway dues and pilotage
dues;
(e) claims based on tort arising out of physical loss or damage
caused by the operation of the vessel other than loss of or damage to
cargo, containers and passengers' effects carried on the vessel.
2. No maritime lien shall attach to a vessel to secure claims as set
out in subparagraphs (b) and (e) of paragraph 1 which arise out of or
result from:
(a) damage in connection with the carriage of oil or other
hazardous or noxious substances by sea for which compensation is payable
to the claimants pursuant to international conventions or national law
providing for strict liability and compulsory insurance or other means of
securing the claims; or
(b) the radioactive properties or a combination of radioactive
properties with toxins, explosive or other hazardous properties of nuclear
fuel or of radioactive products or waste.
Article 5
Priority of maritime liens
1. The maritime liens set out in Article 4 shall take priority over
registered mortgages, "hypoth????eques" and charges, and no other claim
shall take priority over such maritime liens or over such mortgages,
"hypoth????eques" or charges which comply with the requirements of Article
1, except as provided in paragraphs 3 and 4 of Article 12.
2. The maritime liens set out in Article 4 shall rank in the order
listed, provided however that maritime liens securing claims for reward
for the salvage of the vessel shall take priority over all other maritime
liens which have attached to the vessel prior to the time when the
operations giving rise to the said liens were performed.
3. The maritime liens set out in each of subparagraphs (a), (b), (d)
and (e) of paragraph 1 of Article 4 shall rank pari passu as between
themselves.
4. The maritime liens securing claims for reward for the salvage of
the vessel shall rank in the inverse order of the time when the claim
secured thereby accrued. Such claims shall be deemed to have accrued on
the date on which each salvage operation was terminated.
Article 6
Other maritime liens
Each State Party may under its law grant other maritime liens on a
vessel to secure claims, other than those referred to in Article 4,
against the owner, demise charterer, manager or operator of the vessel,
provided that such liens:
(a) shall be subject to the provisions of Articles 8, 10 and 12;
(b) shall be extinguished
(i) after a period of 6 months, from the time when the claims
secured thereby arose unless, prior to the expiry of such period, the
vessel has been arrested or seized, such arrest or seizure leading to a
forced sale; or
(ii) at the end of a period of 60 days following a sale to
bona fide purchaser of the vessel, such period to commence on the date on
which the sale is registered in accordance with the law of the State in
which the vessel is registered following the sale;
whichever Period expires first; and
(c) shall rank after the maritime liens set out in Article 4 and
also after registered mortgages, "hypoth????eques" or charges which
comply with the provisions of Article 1.
Article 7
Rights of retention
1. Each State Party may grant under its law a right of retention in
respect of a vessel in the possession of either:
(a) a shipbuilder, to secure claims for the building of the
vessel; or
(b) a shiprepairer, to secure claims for repair, including
reconstruction of the vessel, effected during such possession.
2. Such right of retention shall be extinguished when the vessel
ceases to be in the possession of the shipbuilder or shiprepairer,
otherwise than in consequence of an arrest or seizure.
Article 8
Characteristics of maritime liens
Subject to the provisions of Article 12, the maritime liens follow the
vessel, notwithstanding any change of ownership or of registration or of
flag.
Article 9
Extinction of maritime liens by lapse of time
1. The maritime liens set out in Article 4 shall be extinguished after
a period of one year unless, prior to the expiry of such period, the
vessel has been arrested or seized, such arrest or seizure leading to a
forced sale.
2. The one-year period referred to in paragraph 1 shall commence:
(a) with respect to the maritime lien set out in Article 4,
paragraph 1(a), upon the claimant's discharge from the vessel;
(b) with respect to the maritime liens set out in Article 4,
paragraph 1(b) to (e), when the claims secured thereby arise;
and shall not be subject to suspension or interruption, provided,
however, that time shall not run during the period that the arrest or
seizure of the vessel is not permitted by law.
Article 10
Assignment and subrogation
1. The assignment of or subrogation to a claim secured by a maritime
lien entails the simultaneous assignment of or subrogation to such a
maritime lien.
2. Claimants holding maritime liens may not be subrogated to the
compensation payable to the owner of the vessel under an insurance
contract.
Article 11
Notice of forced sale
1. Prior to the forced sale of a vessel in a State Party, the
competent authority in such State Party shall ensure that notice in
accordance with this Article is provided to:
(a) the authority in charge of the register in the State of
registration;
(b) all holders of registered mortgages, "hypoth????eques" or
charges which have not been issued to bearer;
(c) all holders of registered mortgages, "hypoth????eques" or
charges issued to bearer and all holders of the maritime liens set out in
Article 4, provided that the competent authority conducting the forced
sale receives notice of their respective claims; and
(d) the registered owner of the vessel.
2. Such notice shall be provided at least 30 days prior to the forced
sale and shall contain either:
(a) the time and place of the forced sale and such particulars
concerning the forced sale or the proceedings leading to the forced sale
as the authority in a State Party conducting the proceedings shall
determine is sufficient to protect the interests of persons entitled to
notice; or,
(b) if the time and place of the forced sale cannot be determined
with certainty, the approximate time and anticipated place of the forced
sale and such particulars concerning the forced sale as the authority in a
State Party conducting the proceedings shall determine is sufficient to
protect the interests of persons entitled to notice.
If notice is provided in accordance with subparagraph (b), additional
notice of the actual time and place of the forced sale shall be provided
when known but, in any event, not less than seven days prior to the forced
sale.
3. The notice specified in paragraph 2 of this Article shall be in
writing and either given by registered mail, or given by any electronic or
other appropriate means which provide confirmation of receipt, to the
persons interested as specified in paragraph 1, if known. In addition,
the notice shall be given by press announcement in the State where the
forced sale is conducted and, if deemed appropriate by the authority
conducting the forced sale, in other publications.
Article 12
Effects of forced sale
1. In the event of the forced sale of the vessel in a State Party, all
registered mortgages, "hypoth????eques" or charges, except those assumed
by the purchaser with the consent of the holders, and all liens and other
encumbrances of whatsoever nature, shall cease to attach to the vessel,
provided that:
(a) at the time of the sale, the vessel is in the area of the
jurisdiction of such State; and
(b) the sale has been effected in accordance with the law of the
said State and the provisions of Article 11 and this Article.
2. The costs and expenses arising out of the arrest or seizure and
subsequent sale of the vessel shall be paid first out of the proceeds of
sale. Such costs and expenses include, inter alia, the costs for the
upkeep of the vessel and the crew as well as wages, other sums and costs
referred to in Article 4, paragraph 1(a), incurred from the time of arrest
or seizure. The balance of the proceeds shall be distributed in accordance
with the provisions of this Convention, to the extent necessary to
satisfy the respective claims. Upon satisfaction of all claimants, the
residue of the proceeds, if any, shall be paid to the owner and it shall
be freely transferable.
3. A State Party may provide in its law that, in the event of the
forced sale of a stranded or sunken vessel, following its removal by a
public authority in the interest of safe navigation or the protection of
the marine environment, the costs of such removal shall be paid out of the
proceeds of the sale, before all other claims secured by a maritime lien
on the vessel.
4. If at the time of the forced sale the vessel is in the possession
of a shipbuilder or of a shiprepairer who under the law of the State Party
in which the sale takes place enjoys a right of retention, such
shipbuilder or shiprepairer must surrender possession of the vessel to the
purchaser but is entitled to obtain satisfaction of his claim out of the
proceeds of sale after the satisfaction of the claims of holders of
maritime liens mentioned in Article 4.
5. When a vessel registered in a State Party has been the object of a
forced sale in any State Party, the competent authority shall, at the
request of the purchaser, issue a certificate to the effect that the
vessel is sold free of all registered mortgages, "hypoth????eques" or
charges, except those assumed by the purchaser, and of all liens and
other encumbrances, provided that the requirements set out in paragraph 1
(a) and (b) have been complied with. Upon production of such certificate,
the registrar shall be bound to delete all registered mortgages,
"hypoth????eques" or charges except those assumed by the purchaser, and to
register the vessel in the name of the purchaser or to issue a certificate
of deregistration for the purpose of new registration, as the case may
be.
6. States Parties shall ensure that any proceeds of a forced sale are
actually available and freely transferable.
Article 13
Scope of application
1. Unless otherwise provided in this Convention, its provisions shall
apply to all seagoing vessels registered in a State Party or in a State
which is not a State Party, provided that the latter's vessels are subject
to the jurisdiction of the State Party.
2. Nothing in this Convention shall create any rights in, or enable
any rights to be enforced against, any vessel owned or operated by a State
and used only on Government non-commercial service.
Article 14
Communication between States Parties
For the purpose of Articles 3, 11 and 12, the competent authorities of
the States Parties shall be authorized to correspond directly between
themselves.
Article 15
Conflict of conventions
Nothing in this Convention shall affect the application of any
international convention providing for limitation of liability or of
national legislation giving effect thereto.
Article 16
Temporary change of flag
If a seagoing vessel registered in one State is permitted to fly
temporarily the flag of another State, the following shall apply:
(a) For the purposes of this Article, references in this
Convention to the "State in which the vessel is registered" or to the
"State of registration" shall be deemed to be references to the State in
which the vessel was registered immediately prior to the change of flag,
and references to "the authority in charge of the register" shall be
deemed to be references to the authority in charge of the register in that
State.
(b) The law of the State of registration shall be determinative
for the purpose of recognition of registered mortgages, "hypoth????eques"
and charges.
(c) The State of registration shall require a cross-reference
entry in its register specifying the State whose flag the vessel is
permitted to fly temporarily; likewise, the State whose flag the vessel is
permitted to fly temporarily shall require that the authority in charge of
the vessel's record specifies by a cross-reference in the record the State
of registration.
(d) No State Party shall permit a vessel registered in that State
to fly temporarily the flag of another State unless all registered
mortgages, "hypoth????eques" or charges on that vessel have been
previously satisfied or the written consent of the holders of all such
mortgages, "hypoth????eques" or charges has been obtained.
(e) The notice referred to in Article 11 shall be given also to
the competent authority in charge of the vessel's record in the State
whose flag the vessel is permitted to fly temporarily.
(f) Upon production of the certificate of deregistration referred
to in Article 12 paragraph 5, the competent authority in charge of the
vessel's record in the State whose flag the vessel is permitted to fly
temporarily shall, at the request of the purchaser, issue a certificate
to the effect that the right to fly the flag of that State is revoked.
(g) Nothing in this Convention is to be understood to impose any
obligation on States Parties to permit foreign vessel to fly temporarily
their flag or national vessels to fly temporarily a foreign flag.
Article 17
Depositary
This Convention shall be deposited with the Secretary-General of the
United Nations.
Article 18
Signature, ratification, acceptance, approval and accession
1. This Convention shall be open for signature by any State at the
Headquarters of the United Nations, New York, from 1 September 1993 to 31
August 1994 and shall thereafter remain open for accession.
2. States may express their consent to be bound by this Convention by:
(a) signature without reservation as to ratification, acceptance
or approval; or
(b) signature subject to ratification, acceptance or approval,
followed by ratification, acceptance or approval; or
(c) accession.
3. Ratification, acceptance, approval or accession shall be effected
by the deposit of an instrument to that effect with the depositary.
Article 19
Entry into force
1. This Convention shall enter into force 6 months following the date
on which 10 States have expressed their consent to be bound by it.
2. For a State which expresses its consent to be bound by this
Convention after the conditions for entry into force thereof have been
met, such consent shall take effect 3 months after the date of expression
of such consent.
Article 20
Revision and amendment
1. A conference of States Parties for the purpose of revising or
amending this Convention shall be convened by the Secretary-General of the
United Nations at the request of one-third of the States Parties.
2. Any consent to be bound by this Convention, expressed after the
date of entry into force of an amendment to this Convention, shall be
deemed to apply to the Convention, as amended.
Article 21
Denunciation
1. This Convention may be denounced by any State at any time after the
date on which this Convention enters into force for that State.
2. Denunciation shall be effected by the deposit of an instrument of
denunciation with the depositary.
3. A denunciation shall take effect one year, or such longer period as
may be specified in the instrument of denunciation, after the receipt of
the instrument of denunciation by the depositary.
Article 22
Languages
This Convention is established in a single original in the Arabic,
Chinese, English, French, Russian and Spanish languages, each text being
equally authentic.
DONE At Geneva this 6th day of May, one thousand nine hundred and
ninety three.
IN WITNESS WHEREOF the undersigned being duly authorized by their
respective Governments for that purpose have signed this Convention.
|