« AnteriorContinuar »
Les dispositions de la présente convention seront appliquées dans chaque Etat contractant lorsque l'une des parties intéressées est ressortissante d'un autre Etat contractant, ainsi que dans les autres cas prévus par les lois nationales.
Toutefois, le principe formulé dans l'alinéa précédent ne porte pas atteinte au droit des Etats contractants de ne pas appliquer les dispositions de la présente convention en faveur des ressortissants d'un Etat non contractant.
La présente convention est sans application aux navires de guerre et aux navires d'Etat exclusivement affectés à un service public.
Rien, dans les dispositions qui précèdent, ne porte atteinte à la compétence des tribunaux, à la procédure et aux voies d'exécution organisées par les lois nationales.
TENTATIVE DRAFT OF AN INTERNATIONAL CONVENTION FOR THE
UNIFICATION OF CERTAIN RULES RELATING TO MARITIME MORTGAGES AND LIENS.
(As reported by the sous-commission, 1922.)
Mortgages, hypothecations, and other similar charges upon vessels, duly effected in accordance with the law of the contracting State to which the vessel belongs, and registered in a public register either at the port of the vessel's registry or at a central office, shall be regarded as valid and respected in all the other contracting countries.
The following give rise to maritime liens on a vessel, on the freight for the voyage during which the claim giving rise to the lien arises, and on the accessories of the vessel and freight accrued since the commencement of the voyage:
1. Law costs due to the State, and expenses incurred in the common interest of the creditors in order to preserve the vessel or to procure her sale and the distribution of the proceeds of sale; tonnage dues, light or harbor dues, and other public taxes and charges of the same character; pilotage dues; the cost of watching and preservation from the time of the entry of the vessel into the last port.
2. Claims arising out of the contract of engagement of the master, crew, and other persons in the service of the vessel.
3. Remuneration for assistance and salvage, and the contribution of the vessel in general average.
4. Claims due by reason of the fault of a person in the service of the vessel for collision or other accidents of navigation, for bodily injury to passengers or crew, for loss of or damage to cargo, and for damage caused to works forming part of harbors, docks, and navigable ways.
5. Claims arising on contracts entered into or acts done by the master, acting within the scope of his authority, away from the vessel's home port, where such contracts or acts are necessary for the preservation of the vessel or the continuation of her voyage, whether
1 The anal protocol will contain the following provision: “It is understood that the legislation of each State remains free (1) to establish among the claims mentioned in paragraph 1 of article 3 a definite order of priority, with the view of safeguarding the interests of the Treasury; (2) to confer on the authorities administering harbors, docks, and navigable ways, which have caused any wreck or other obstruction to navigation to be removed, or who are creditors in respect of harbor dues, the right, in case of non-payment, to detain the wreck or other property, to sell the same, and to indemnify themselves out of the proceeds for the cost of removing in priority to other creditors; and (3) to settle the ranking of claims for damage done to works otherwise than in accordance with the provisions of articles 5 and 8.”
the master is or is not at the same time owner of the vessel, and whether the claim is his own or that of ship-chandlers, repairers, lenders, or other contractual creditors.
6. Claims arising on bills of lading.
The mortgages, hypothecations, and other charges on vessels referred to in article i rank immediately after the secured claims referred to in Nos. 1 to 4 of the last preceding article.
National laws may grant a lien in respect of claims other than those referred to in the said last mentioned article, or may modify the ranking of secured claims so, however, as not to modify the ranking of claims secured by mortgages, hypothecations, and other similar charges, or by the liens taking precedence thereof.
The accessories of the vessel and the freight, mentioned in article 2, mean
1. Compensation due to the owner for material damage sustained by the vessel and not repaired, or for loss of freight;
2. General average contributions due to the owner, in respect of material damage sustained by the vessel and not repaired, or in respect of loss of freight;
3. Remuneration due to the owner for assistance and salvage services rendered at any time before the end of the voyage, any sums allotted to the master or other persons in the service of the vessel being deducted.
The passage money and, if any, the lump sum provided for by article 4 of the convention for the limitation of the liability of shipowners are treated as freight.
Claims secured by a lien and relating to the same voyage rank in the order in which they are set out in article 2.
Claims included under any one heading share concurrently and ratably in the event of the fund available being insufficient to pay the claims in full.
The claims mentioned under Nos. 3 and 4 in that article rank, in each of the two categories, in the inverse order of the dates on which they came into existence.
Claims arising from one and the same occurrence are deemed to have come into existence at the same time.
Claims secured by a lien and attaching to the last voyage have priority over those attaching to previous voyages:
Provided that claims arising on one and the same contract of engagement extending over several voyages all rank with claims attaching to the last voyage.
? The final protocol will contain a declaration to the effect that “This convention does not affect the provisions of any national law of the contracting States giving a lien to publicinsurance associations in respect of claims arising out of the insurance of the personnel of vessels."
As regards the distribution of the sum resulting from the sale of the property subject to a lien, the creditors whose claims are secured by a lien have the right to put forward their claims in full, without any deduction on account of the rules relating to limitation of liability, provided, however, that the sum apportioned to them may not exceed the sum due having regard to the said rules.
Claims secured by a lien follow the vessel into whatever hands it may pass.
The liens cease to exist, apart from other cases provided for by national laws, at the expiration of one year from the date on which the claim becomes enforceable, and, in the case of liens securing any of the claims mentioned in No. 4 of article 2, shall not continue in force for more than two years from the date when the claim originated.
Nevertheless as respects the cases provided for in the national laws in which a lien is extinguished, à sale shall extinguish a lien only if accompanied by formalities of publicity which shall be laid down by the national laws. These formalities shall include a notice given in such form and within such time as the national laws may prescribe to the authority charged with keeping the registers referred to in article 1 of this convention.
The fact that any of the persons in the service of the vessel specified in No. 2 of article 2 has a right to any payment in advance or on account, does not render his claim enforceable within the meaning of the preceding paragraph.
In the case of liens securing claims in respect of assistance and salvage, the period for which the lien remains in force runs from the day when the services terminated, and in the case of liens securing claims in respect of collision and the other liabilities mentioned in No. 4 of article 2, the period runs from the day when the accident occurred.
The grounds upon which the above periods may be suspended or interrupted are determined by the law of the court where the case is tried
The High Contracting Parties reserve to themselves the right to provide, by legislation in their respective countries, that the said periods shall be extended in cases where it has not been possible to arrest the vessel to which a lien attaches in the territorial waters of the State in which the claimant has his domicile or his principal place of business, provided that the extended period shall not exceed three years.
A lien on freight may be enforced so long as the freight is still due or the amount of the freight is still in the hands of the master or the agent of the owner. The same principle applies to a lien on accessories.
Liens established by the preceding provisions are subject to no formality and to no special condition of proof.
This provision does not affect the right of any State to maintain in its legislation provisions requiring the master of a vessel to fulfil special formalities in the case of certain loans raised on the security of the vessel, or in the case of the sale of her cargo.
National laws must prescribe the nature and the form of documents to be carried on board the vessel on which entry must be made of the mortgages, hypothecations, and other charges referred to in article 1.
The foregoing provisions apply to vessels under the management of a person who operates them without owning them or to the principal charterer, except in cases where the owner has been dispossessed by an illegal act and when, furthermore, the claimant is not a bona fide claimant.
The provisions of this convention shall be applied in each contracting State in cases in which one of the interested parties is a national of another contracting State, as well as in any other cases provided for by the national laws.
Nevertheless the principle formulated in the preceding paragraph does not affect the right of the contracting States not to apply the provisions of this convention in favor of the nationals of a noncontracting State.
This convention does not apply to vessels of war, nor to Government vessels appropriated exclusively to the public service.
Nothing in the foregoing provisions shall be deemed to affect in any way the competence of tribunals, modes of procedure or methods of execution authorized by the national laws.