Question 1:

 Are ss 3(d), 3(e), 3(g) and (h) maritime liens? If yes, can we seek recourse under s 4(3) -
which pertains to maritime liens or does only s 4(4) apply?

Answer:

A maritime lien is not a claim per se, but a form of encumbrance on a ship that is enforced by action
in rem. It is a common law right and usual maritime liens are for collision damage, crew wages and
salvage. The arresting party who intends to assert a maritime lien should rely on Section 4(3), rather
than Section 4(4), provided that the offending vessel is the target of the arrest.

Claims that give rise to maritime liens may also have statutory liens. For example, a claim under
Section 3(1)(d) of the HCAJA, provided that the damage is the result of a wrongful or negligent act by
persons engaged in the navigation or management of the ship and the ship is the actual instrument
by which the damage is done.

If the subject of the arrest is a sister ship instead, the arresting party can invoke their statutory lien
rights under Section 3(1)(d) and have to satisfy Section 4(4)(b) but will not be able to assert maritime
lien against that sister ship as the maritime lien only encumbers the offending ship (and not the
sister ship).

Claims under Section 3(e) and 3(h) do not give rise maritime liens.

Question 2:

 If a writ is issued after insolvency proceedings, will the Plaintiff be an unsecured creditor or
the Plaintiff cannot make any claim at all (unlike those who were issued a writ before
insolvency proceedings become secured creditors).
o Can P intervene instead?

Answer:

An admiralty claimant can file a writ in rem after insolvency proceedings are commenced against the
party that is liable in personam to the claim (either the owner or the demise charterer), since an
action in rem is an action against the vessel, and not the owner or the demise charterer: see The
Ocean Winner [2021] 4 SRL 526. The effect of filing the writ would be to crystallize the claimant’s
security interest in the form of a statutory lien against the vessel. This does not mean that the
admiralty claimant is a secured creditor against the party that is liable in personam. At best, the
claimant is regarded as a secured creditor vis-a-vis the res.

Even if a writ is filed prior to the commencement of insolvency proceedings, the claimant still needs
to obtain leave of court if it wishes to proceed with the claim in the writs, including service of the
writs and arrest of the vessel in question, if the party that is liable in personam that has a subsisting
moratorium in its favour, has entered an appearance because that would transform the action into a
hybrid action of in rem and in personam.