ABSTRACT
This fully updated and comprehensive 3rd edition of The Law of Ship Mortgages provides readers with a practical, commercially based and definitive guide to the English law of ship mortgages. The authors, being seasoned practitioners, bring their extensive experience to bear on a number of difficult and developing areas of the law, such as: mortgagees’ duties, liability to charterers, the conflict of laws, work-outs, restructurings and cross-border insolvency.
The 3rd edition includes new chapters on pre-delivery security, security over shares and on the increasingly important topic of ship leasing as a method of finance. It is written against the background of, and has regard to, ever-increasing sanctions affecting shipping and ship finance as well as the continued regulatory and industry-driven push towards reduction of emissions (IMO 2020 and IMO 2050).
Written primarily with practitioners in mind, The Law of Ship Mortgages will continue to be extremely useful to legal professionals, especially in common law jurisdictions, involved in international ship finance or ship mortgage enforcement. It will also be a valuable resource for postgraduate students and academics, especially those with an interest in shipping law or the law of personal property more generally.
Foreword xiii
Preface and acknowledgements xvi
Table of cases xviii
Table of legislation xx
CHAPTER 1 HISTORICAL INTRODUCTION 1
1.1 Background 1
1.2 Maritime law and ship mortgages 4
1.3 Legislative reform 8
1.4 The nature of the statutory mortgage 11
1.5 The international legacy 16
1.6 Mortgages of unregistered ships 17
CHAPTER 2 OWNERSHIP AND REGISTRATION 18
2.1 Legal ownership 18
2.2 Registration; history and development 21
2.3 The Register 24
2.4 Fishing vessels 25
2.5 Small ships 26
2.6 The nature and effect of registration 27
2.7 The certificate of registry 28
2.8 Registration and beneficial ownership – including the arrest context 29
2.9 Registration and priority 35
2.10 Other circumstances, where registration is not conclusive or relevant 38
2.11 Refusal of registration, termination and expiry of registration 39
2.12 The ship 42
2.13 Bareboat charters and registration 47
2.14 Mortgages on ‘bareboat charter in’ ships 49
2.15 Mortgages on ‘bareboat charter out’ ships 49
CHAPTER 3 SECURITY INTERESTS IN SHIPS 50
3.1 Introduction 50
3.2 Statutory mortgages – the primacy of registration 52
3.3 The form and effect of a registered statutory ship mortgage 53
3.4 Common law mortgages 55
3.5 Disguised mortgages 58
3.6 Equitable mortgages 59
3.7 Equitable charges 63
3.8 Submortgages 66
3.9 Mortgage of a share in a ship 67
3.10 Mortgages of ships under construction 68
CHAPTER 4 THE CONFLICT OF LAWS 71
4.1 Introduction 71
4.2 The general maritime law 75
4.3 International conventions 76
4.4 Property in registered ships under English domestic law 79
4.5 The mid-nineteenth-century conflicts cases (on ships and on chattels generally) 82
4.6 The cases on foreign ship mortgages 86
4.7 The cases on registered ownership and arrest jurisdiction 89
4.8 The conflict of laws dimension to priority issues 90
4.9 The WD Fairway litigation 97
4.10 Property in registered aircraft under English domestic law 106
4.11 The Blue Sky litigation 107
4.12 Conclusions on the English conflict of laws on lex situs and registered ships 110
CHAPTER 5 EXECUTION, SECURED OBLIGATIONS AND
PROPERTY COVERED 116
5.1 Parties 116
5.2 Execution 116
5.3 The form of mortgage and obligations secured 118
5.4 Multiple obligations 121
5.5 Change of parties 124
5.6 Change of obligations 124
5.7 Relationship between the mortgage and the collateral deed of covenant 127
5.8 Special fees and ‘upside’ sharing arrangements 129
5.9 Property covered by the mortgage 133
CHAPTER 6 REGISTRATION OF MORTGAGES 138
6.1 Introduction 138
6.2 Merchant Shipping Act 1995 139
6.3 Companies Act 2006 143
6.4 The Bills of Sale Acts 148
6.5 Reform of the registration system 149
CHAPTER 7 PRIORITY 150
7.1 Statutory registered priority 150
7.2 Agreed priority 152
7.3 Failure to register a mortgage 156
7.4 Equitable mortgages and charges 157
7.5 Floating charges; negative pledges 158
7.6 The Order of Priorities in an Order for Sale 160
7.7 Tacking of further advances 160
7.8 Tabula in naufragio 165
7.9 Priority of security over ancillary receivables 166
7.10 Marshalling 167
CHAPTER 8 MORTGAGOR’S OBLIGATIONS AND UNDERTAKINGS 174
8.1 Introduction 174
8.2 Typical express owners’ undertakings 176
8.3 Certain issues on owners’ undertakings 178
8.4 Sanctions 183
8.5 Consents and discretions 191
8.6 Protection of security 196
CHAPTER 9 AMENDMENT, TRANSFER AND DISCHARGE 198
9.1 Amendment 198
9.2 Correction and rectification of the Register 199
9.3 Transfer and transmission 200
9.4 Discharge 204
9.5 Consolidation 207
CHAPTER 10 LIENS 209
10.1 Introduction 209
10.2 Common law liens 210
10.3 Equitable liens 212
10.4 Maritime liens 212
10.5 Statutory liens 216
10.6 Statutory possessory liens 217
CHAPTER 11 DEFAULT, AND SELF-HELP ENFORCEMENT POWERS 219
11.1 Introduction 219
11.2 Events of Default (EODs) 222
11.3 Non-payment EODs 223
11.4 Other EODs 224
11.5 Discretions in relation to default 232
11.6 Waiver of EODs 232
11.7 Effect of an EOD 235
11.8 Default interest and break-funding 239
11.9 The lender’s/mortgagee’s options following a default 242
11.10 Enforcement 244
11.11 The right to take possession at common law 245
11.12 Method of taking possession 250
11.13 Factors relevant to the mortgagee’s decision to take possession 253
11.14 The rights of a mortgagee in possession 259
11.15 Sale of the mortgaged ship 260
11.16 Mechanics and effect of a mortgagee’s private sale 264
11.17 The mortgagee’s expenses of sale 265
11.18 Application of the proceeds of sale 267
11.19 Receivership 268
11.20 Foreclosure 272
11.21 Subsequent mortgagees 273
11.22 Enforcement of security over ancillary receivables 274
CHAPTER 12 THE COURTS’ PROTECTION OF THE MORTGAGOR 276
12.1 Introduction 276
12.2 Protection of the mortgagor’s right to redeem 277
12.3 The mortgagee in possession’s duties to the mortgagor 279
12.4 The mortgagee’s exercise of its power of sale 283
12.5 Sales to self 288
12.6 Sales to favoured buyers; improper purposes 291
12.7 Are ship mortgages different from mortgages of land? 296
12.8 Derivative liability to relevant parties 302
12.9 Excluding duties 306
12.10 Anti-set-off clauses 307
12.11 Marshalling 309
12.12 The perils of intermeddling 309
12.13 The conflict of laws 310
CHAPTER 13 DUTIES AND LIABILITIES OF THE MORTGAGEE TO
THIRD PARTIES 311
13.1 Introduction 311
13.2 Mortgagee enforcing security: liability to non-demise charterers and cargo interests 313
13.3 Mortgagee enforcing security: demise (bareboat) charterers 335
13.4 Third-party purchase options 341
13.5 Liabilities of a mortgagee in possession to third parties 342
13.6 Interference with third-party property 344
13.7 Issues arising under the Partnership Act 1890 345
13.8 Wider lender liability risks 347
13.9 Equitable subordination 349
13.10 Lender liability: an attempt to summarise 350
CHAPTER 14 ENFORCEMENT BY ARREST AND COURT SALE 352
14.1 Introduction 352
14.2 The Admiralty jurisdiction of the High Court 354
14.3 Ship arrest procedure 360
14.4 Court sale procedure 373
14.5 Enforceability of the court bill of sale 387
14.6 Determination of priorities and payment out 391
CHAPTER 15 RESTRUCTURING AND INSOLVENCY 404
15.1 Introduction and background 404
15.2 Consensual restructurings 409
15.3 Schemes of arrangement under the Companies Act 2006, Part 26 412
15.4 Restructuring plans under the Companies Act 2006, Part 26A 416
15.5 The move towards restructuring globally 420
15.6 Chapter 11 (and Chapter 15) of the United States Bankruptcy Code 422
15.7 The Recast Insolvency Regulation 429
15.8 The UNCITRAL Model Law on Cross-Border Insolvency and the Cross-Border Insolvency Regulations 437
15.9 Other UK cross-border jurisdictional issues 442
15.10 Hanjin 444
CHAPTER 16 INSURANCE 446
16.1 Introduction 446
16.2 The nature of the mortgagee’s interest 449
16.3 Insurance placed by the mortgagee for its own benefit 452
16.4 Co-assurance 454
16.5 Assignment 456
16.6 Notice of assignment 461
16.7 Assignment: clubs and mutual associations 465
16.8 Loss payable clauses 466
16.9 Letters of undertaking 467
16.10 Claims 470
16.11 The conflict of laws 471
16.12 Illegality risk 473
16.13 Reinsurances; assignments of reinsurances 477
16.14 Mortgagees’ interest insurance 478
16.15 Mortgagees’ Additional Perils (Pollution) (‘MAPP’) insurance 502
16.16 Mortgagees’ rights insurance (‘MRI’) 505
16.17 Other mortgagees’ insurances 507
16.18 Concluding observations 508
CHAPTER 17 SECURITY OVER EARNINGS AND CHARTERPARTIES 510
17.1 Introduction 510
17.2 The commercial background 512
17.3 Present rights and future rights 517
17.4 Partial assignments, suspensory assignments and assignments by way of charge 520
17.5 Notice of assignment 523
17.6 Legal assignments and equitable assignments 525
17.7 Certain set-off issues 527
17.8 The conflict of laws 529
17.9 Restrictions on assignment 530
17.10 Liens on sub-freights 534
17.11 Charterparties and step-in rights 536
17.12 Earnings account 542
17.13 Financial Collateral Arrangements 544
17.14 Pooling arrangements 545
17.15 Requisition compensation 545
CHAPTER 18 PRE-DELIVERY SECURITY 553
18.1 Background and Introduction 553
18.2 The builder’s refund obligations 555
18.3 Refund guarantees 556
18.4 Advance payment guarantees 564
18.5 Assignment issues, control over disputes 565
18.6 Stepping in to the buyer’s position 567
CHAPTER 19 SECURITY OVER SHARES 571
19.1 Introduction 571
19.2 Reasons for taking shares security 571
19.3 SPC liabilities 574
19.4 Aspects of the security documents; enforcement 576
19.5 The courts’ protection of the grantor of the security 577
19.6 The conflict of laws 579
CHAPTER 20 LEASE FINANCING OF SHIPS 581
20.1 Introduction and background 581
20.2 The nature and form of a ship lease 587
20.3 Differences between financial leases and ship mortgages in relation to default and enforcement 588
20.4 Recharacterisation of financial leases 606
20.5 Liability of lessors to third parties 611
20.6 Leases and mortgages combined 616
20.7 Issues for financial lessees 618
20.8 Financial leases and secured loans; some reflections on the differences 621
Appendix 1: Statutory Material 623
A Merchant Shipping Act 1995, Part II 624
B Merchant Shipping Act 1995, Schedule 1 637
C Merchant Shipping (Registration of Ships) Regulations 1993, SI 1993/3138, Part VII (as amended) 641
D Senior Courts Act 1981, section 20(2) 646
Appendix 2: Statutory Forms 650
A Form MSF 4736 REV 1118 (Mortgage of a Ship to secure Account Current etc. other/obligation) 651
B Form MSF 4737 REV 1118 (Mortgage of a Ship to secure Principal sum and Interest) 665
C Form 4739 REV 1118 (Notice of Mortgage Intent) 678
Appendix 3: Specimen Deed of Covenant 682
Appendix 4: Institute Mortgagees’ Interest Clauses - Hulls 722
Appendix 5: The Admiralty Marshal’s Conditions of Sale and Bill of Sale 727
Index
