ISRAEL Trends and Developments Contributed by: Yoav Harris and Domiana Abboud, Harris & Co Maritime Law Office
Ever since, Ellen Hudig has been cited by the Haifa Maritime Court as an authority establishing the need to show owners’ liability in order to recognise a mari - time lien. Accordingly, in MV Nissos Rodos (2016), the Maritime Court cited MV Ellen Hudig , insofar as the local ship agent was not entitled to a maritime lien for port dues paid by the agent for the vessel during its calls at Haifa Port. Reasoning that the agent was engaged with the operator of the vessel and not with the owners, and given the accounting arrangements between the own - ers and the operators, the owners paid for the port dues through a set-off towards the operator. Only the contractual supplier is recognised as a necessary lien On what might be considered similar grounds, in MV Emmanuel Tomasus (2012), it was held that only the contractual supplier was entitled to a maritime lien for the supply of necessaries. Therefore, the actual physi - cal supplier, who did not enter into an agreement with the owners, was not entitled to recover its debt from the arrest and sale of the supplied vessel. MV Captain Hurry (2016) was similar; a bunker suppli - er’s claim was denied as, by acknowledging a German declaratory order under res judicata, it was accepted that the contractual relations took place with the char - terers and not with the owners. However, in the matter of Captain Hurry , the Haifa Maritime Court also mentioned that the maritime liens differed from each other, whereby some were intended to secure voluntarily liabilities and others to secure liabilities under law. It is obvious that the owners will be liable for salvage even if they were not respon - sible for the circumstances leading the vessel into distress. Owners can be liable towards third parties for a vessel’s acts, and this liability is recognised as the maritime lien of “indemnities for collisions or other accidents of navigations”, etc. Acts of managers and others who are considered authorised by owners In the matter of Moraz Shipping , while denying the owners’ application for establishing a limitation fund (according to the Brussels Convention of 1957), for
damages caused to port basins and facilities due to oil leakage from the vessel while bunkered, the Maritime Court cited Captain Hurry as an authority that in rem proceedings can be taken against a vessel regardless of the owner’s liability. To enforce these, it is sufficient that those who were authorised to render the vessel liable in rem also caused the damage. In the matter of Moraz Shipping , the managers of the vessel failed to provide sufficient instructions to the crew and did not intend for, or supervise, the bunkering. Therefore, the damage was the “actual fault or privity of the owner”; following the wording of Article 1 of the Convention, the application was thus denied. In the matter of MV HUA YANG MEU GUI , the vessel was successfully arrested due to unpaid bunkers sup - plied while it was under charter. The charterers were liable for ordering and paying for the bunkers, as per the charterparty. By reference to US law (the governing law as per the supplier’s terms and conditions), the Haifa Maritime Court presumed that charterers and their agents have the authority to bind the vessel by ordering necessar - ies, unless an explicit notice from the owners states otherwise. This principle was cited from World Fuel Services v MV HEBEI SHIJUAH , and the arrest was ultimately granted. The same principle was applied by the Haifa Mari - time Court in M/V Mirage 1 , where the intended buyer of the vessel, who took possession of it while it was still under the ownership of the seller, was considered authorised to bind the owners in a lien for necessar - ies for the bunkers supplied during such possession. To conclude, although the Haifa Maritime Court’s approach is that a maritime lien requires owner’s liability, there is some flexibility in how such liability is established – directly or through those acting on behalf of the owner. Not all maritime liens are uni - form in nature, and some might exist without personal liability of the ship-owner. Enforcement of maritime lien for damage “done to goods” In Poliva v Ruby T , the Haifa Maritime Court held that the intended receiver of alleged damaged goods, who
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