ISRAEL Trends and Developments Contributed by: Yoav Harris and Domiana Abboud, Harris & Co Maritime Law Office
The requirement for owner’s liability The concept of a maritime lien can be described metaphorically to emphasise its unique nature. It can be said to “spring into existence the moment the cir - cumstances give birth to it” (Thomas, Maritime Liens , 1980, page 1) and like an unseen demon attaches itself to the res and creates a “subtraction from the interest of the owners” (Thomas, page 23, citing The Teravate (1922), using the words of The Ripon City (1897)). This lien remains invisible to owners and oth - er creditors, maintaining a silent hold over the vessel until it manifests in a legal process, typically through a claim in rem that “relates back to the period when it first attached” ( The Bold Buccleugh , 1851). The question of whether a maritime lien requires an owner’s personal liability seems to be viewed differ - ently by European civil admiralty law (rooted in Rho - dian Sea Law, Roles (Rules) of Oleron, Consolato del Mare Laws of Visby and the Ordonnance de La Marine of 1861) and by English common law, which imported the concept of a maritime lien through the Doctors’ Commons. While under English law “a proper maritime lien must have its root in personal liability of the owner” ( The Castlegate (1893)), no such requirement appears in the European maritime lien regime, at least according to the Brussels Convention of 1926, which, as men - tioned, was adopted by the Israeli legislature. However, in MV Ellen Hudig (2004), the Haifa Mari - time Court denied a maritime lien for “indemnities for loss of or damage to the cargo or baggage”. This was because alleged damages to the cargo (additional expenses related to its discharge from the vessel in Haifa and additional freight paid to another vessel to complete its intended voyage to Singapore – after the port agent’s notice that the vessel will not continue its voyage) resulted from the crew’s decision not to con - tinue sailing, as there was no one to pay their wages, and from a subsequent bankruptcy order issued by a Belgian court (where such an order does not consti - tute liabilities towards others and third parties). There - fore (in the Court’s view), as the owners did not cause the vessel to discontinue the voyage, the claim did not fall under the owners’ personal liability.
The Haifa Maritime Court The sets of rules governing the Maritime Court’s authority Israeli maritime law is a legacy of the British Mandate for Palestine, which was officially valid from 1923 to 1948. By a King’s Order-in-Council dated 2 February 1937, the Supreme Court of Jerusalem was consti - tuted as a maritime court under the Colonial Courts of Admiralty Act, 1890 (the “Colonial Act”). On the date the Colonial Act was enacted, the most relevant acts of admiralty in force were the Admiralty Court Acts of 1840 and 1861 and the Naval Prize Act 1864. These continue to apply to the Israeli Haifa Maritime Court’s jurisdiction. Clause 2 (2) of the Colonial Act empowers the jurisdic - tion of a Colonial Court of Admiralty with the jurisdic - tion over “the like persons, matters, and things, as the Admiralty jurisdiction of the High Court in England whether existing by virtue of any statue or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as full an extent as the High Court in England, and shall have the same regard as that Court to international law and the comity of nations”. In accordance with these provi - sions, and following the transfer of powers from the Supreme Court, when exercising its jurisdiction over maritime claims and matters, the Haifa Maritime Court can apply its civil and other powers as a district court under Israeli law. When enacting the Israeli Shipping Act of 1960, the Israeli legislature included specific chapters on mort - gages and liens, adopting the continental lien regime of the Brussels Convention of 1926 and preferring this regime over English law. Therefore, the Israeli Maritime Court (seated in the Haifa District Court) has two sets of rules related to maritime liens. A maritime lien is a substantive right The main Supreme Court judgment relating to mari - time liens was rendered in the matter of MV Nadia S . The Court held that a maritime lien is a substantive right rather than a procedural right (and in this regard diverged from the majority opinion in the English judg - ment in the matter of the Halcyon Isle ), attaching to the ship and following the res into the hands of third par - ties, and is determined according to the lex causae.
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