ISRAEL Law and Practice Contributed by: Joseph Sprinzak and Rahel Rimon, J.SPRINZAK
• personal injury; • collision; and • necessaries.
the vessel at Haifa Port, was not entitled to enforce a maritime lien for “port dues of any kind… paid by a third party” on the ground that the agent had no agreement with the owners such that the owners were not personally liable to pay the agent. Equally, in AF 22358-02-14 M/V Captain Harry (2016), a supplier’s claim was dismissed due to a lack of own - er’s liability; nonetheless, the Admiralty Court noted that there were different types of maritime liens and that, for example, the maritime lien for salvage exist - ed, even if the owners were not liable for the circum - stances leading to the salvage event. On appeal, the Supreme Court held that the claim for unpaid bunkers could not be heard on the merits due to the principle of res judicata (CA 7138/16 M/V Captain Harry (2018)). 5.4 Unpaid Bunkers It should be noted that bunker supplies are regarded as necessaries both under Section 41 (8) of the Ship - ping (Vessels) Law – 1961 and under Section 5 of the Admiralty Court Act 1861, and accordingly a bunker supplier may arrest the vessel in the event of breach of contract to pay for the bunkers. Nonetheless, accord - ing to the judgment handed down in CF 45897-02- 12 OW Bunker Malta Ltd v M/V Emmanuel Tomasos (referred to in 5.3 Liability in Personam for Owners or Demise Charterers ), the lien, and consequently the right of arrest, is limited to the party that directly entered into the supply agreement with the vessel and does not follow into the hands of subcontractors who supplied the fuel. The rationale behind the distinction between the supplier of the goods and subcontractors is that the supplier has collateral to secure the payment for the goods, namely the vessel itself. Under this construc - tion, the vessel may proceed with its regular voyage, while the supplier need not wait for other collateral, thereby delaying and interfering with the operation of the vessel. By comparison, the subcontractor (namely, the physical supplier) does not have a direct arrange - ment with the vessel and will receive its payment from the party ordering the goods and not the vessel, its owners or crew. The grant of security over the vessel to a subcontractor is not required in order to secure the mobility of the vessel. The court also noted that the recognition of the right of each one in the chain
It should be noted that Section 41 (4) specifically pro - vides for a statutory right in rem in respect of pay - ments claimed by the captain, crew or their survivors, due to their employment on the vessel, according to a contract or as compensation for civil damages or in any other way. According to Section 53 of the Shipping (Vessels) Law – 1960, debts accumulated by a charterer are dealt with in the same way as those accumulated by an owner. More precisely, the Section states: “The provisions of this chapter shall apply also to a vessel operated by a charterer or some other person who is not the owner thereof, unless he obtained the vessel unlawfully and the fact was known to the creditor”. Consequently, it is arguable, pursuant to Section 53, that debts created by a charterer during the period of a charterparty will vest a maritime lien, or at minimum a statutory action in rem, against the vessel. However, this matter has not yet been decided by the highest instance in Israel. With regard to foreign maritime liens, it should be noted that the Israeli Admiralty Court will look at the proper law of the claim in order to determine the valid - ity of a lien. 5.3 Liability in Personam for Owners or Demise Charterers The Admiralty Court has concurrent jurisdiction in rem and in personam. While there is no statutory require - ment that owners be personally liable in order for a right in rem to arise, recent case law suggests that the Admiralty Court will not enforce a maritime lien in the absence of personal liability on the part of the owner (ALA 851/99 M/V Ellen Hudig (2004)). Similarly, in CF 45897-02-12 M/V Emmanuel Tomasos (2014), the actual bunker supplier’s claim was denied on the ground that only the contractual supplier who had contracted with the owners could be a creditor under the necessaries lien. Likewise, in AF 24399-05-15 M/V Nissos Rodos (2016), it was held that the local agent who had been nominated by the operator of the ves - sel, and paid the port dues for the numerous calls of
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