Creditors

The advantages the maritime lien has over other types of liens have been illustrated. There is one important advantage – that is, that the maritime lien is a ‘provided claim’. By this we mean that the holder of a maritime lien has a higher priority than other creditors in the event that the ship is sold with the intention of distributing the assets to satisfy various creditors. As between more than one maritime lienor over the same res, the rule is that maritime liens which arise ex delicto (as a result of damage done) generally rank above those arising ex contractu (in respect of contractual disputes), on the basis that an injured party has no option but to become involved with the ‘wrongdoer’. Notwithstanding this, the lien of subsequent salvors has priority over an earlier damage lien, on the basis that the salvors have preserved the property for the benefit of the earlier lienor. In determining how different claims which carry maritime liens should rank in priority against each other, it can be said that they are divided into two distinct categories: contractual liens and damage liens. In the absence of any specific priority rating (salvage liens, for example), it is logical that damage lien holders should be given higher priority then holders of contractual liens. A contractual lien holder, being a claimant who has a cause of action in his favour arising from breach of contract by the other party, is a person who originally entered (presumably) quite voluntarily into the contract and with his eyes open. Thus, in a sense, he had some forewarning of the possibilities of suffering loss, harm or damage.