#5222 - The Halcyon Isle - Conflict of Laws BCL

The Halcyon Isle

Facts

The appellants ("the mortgagees") are an English bank. They held a mortgage on a British ship the Halcyon Isle registered in London. It was dated April 27, 1973, and registered on May 8, 1974. The respondents ("the necessaries men") are ship-repairers carrying on business in New York. They executed repairs to the Halcyon Isle at their Brooklyn yard in New York State in March 1974. Under United States law a ship-repairer is entitled to a maritime lien for the price of repairs done to a ship. The Halcyon Isle was arrested in Singapore on September 5, 1974, in an action in rem brought in the High Court of Singapore by the mortgagees. On March 6, 1975, she was sold by order of the court, for a sum insufficient to satisfy in full the claims of all the creditors of her owners. The question of law directly involved in this appeal is whether in the distribution of the proceeds of sale the claim of the mortgagees should take priority over the claim of the necessaries men or vice versa.

Holding

Lord Diplock

At first sight, the answer to the question posed by this appeal seems simple. The priorities as between claimants to a limited fund which is being distributed by a court of law are matters of procedure which under English rules of conflict of laws are governed by the lex fori; so English law is the only relevant law by which the priorities as between the mortgagees and the necessaries men are to be determined; and in English law mortgagees take priority over necessaries men.

In the case of a ship, however, the classification of claims against her former owners for the purpose of determining priorities to participate in the proceeds of her sale may raise a further problem of conflict of laws, since claims may have arisen as a result of events that occurred not only on the high seas but also within the territorial jurisdictions of a number of different foreign states. So the lex causae of one claim may differ from the lex causae of another, even though the events which gave rise to the claim in each of those foreign states are similar in all respects, except their geographical location, the leges causarum of various claims, of which under English conflict rules the "proper law" is that of different states, may assign different legal consequences to similar events. So the court distributing the limited fund may be faced, as in the instant case, with the problem of classifying the foreign claims arising under differing foreign systems of law in order to assign each of them to the appropriate class in the order of priorities under the lex fori of the distributing court.

Two Options

The choice would appear to lie between (1) on the one hand classifying by reference to the events on which each claim was founded and giving to it the priority to which it would be entitled under the lex fori if those events had occurred within the territorial jurisdiction of the distributing court; or (2) on the other hand applying a complicated kind of partial renvoi by (i) first ascertaining in respect of each foreign claim the legal consequences, other than those relating to priorities in the distribution of a limited fund, that would be attributed under its own lex causae to the events on which the claim is founded; and (ii) then giving to the foreign claim the priority accorded under the lex fori to claims arising from events, however dissimilar, which would have given rise to the same or analogous legal consequences if they had occurred within the territorial jurisdiction of the distributing court.

Even apart from the merit of simplicity, the choice in favour of the first alternative, classification by reference to events, appears to their Lordships to be preferable in principle. In distributing a limited fund that is insufficient to pay in full all creditors of a debtor whose claims against him have already been quantified and proved, the court is not any longer concerned with enforcing against the debtor himself the individual creditors' original rights against him. It is primarily concerned in doing evenhanded justice between competing creditors whose respective claims to be a creditor may have arisen under a whole variety of different and, it may be, conflicting systems of national law. It may be plausibly suggested that the moral and rational justification of the general conflicts of law rule, applied by English courts to claims arising out of foreign contracts, that the contract should be given the same legal consequences as would be accorded to it under its "proper law," is that the legitimate expectations of the parties to the contract as to their rights against one another, which will result from entering into and carrying out the contract, ought not to be defeated by any change of the forum in which such rights have to be enforced. Rights of priority over other creditors of the defaulting party to such a contract, in a judicial distribution of a fund which is insufficient to satisfy all the creditors in full, are not, however, rights of the parties to the contract against one another.

Every such creditor whose claim is based on contract or quasi-contract must have known that in so far as the legal consequences of his claim under its own lex causae included rights to priority over other classes of creditors in the distribution of a limited fund resulting from an action in rem against a ship, that particular part of the lex causae would be compelled to yield to the lex fori of any foreign court in which the action in rem might be brought.

Their Lordships therefore conclude that, in principle, the question as to the right to proceed in rem against a ship as well as priorities in the distribution between competing claimants of the proceeds of her sale in an action in rem in the High Court of Singapore falls to be determined by the lex fori, as if the events that gave rise to the claim had occurred in Singapore.

Their Lordships are accordingly of opinion that in principle, in accordance with long-established English authorities and consistently with international comity as evidenced by the wide acceptance of the International Convention relating to the Arrest of Seagoing Ships 1952, the question whether or not in the instant case the necessaries men are entitled to priority over the mortgagees in the proceeds of sale of the Halcyon Isle depends upon whether or not if the repairs to the ship had been done in Singapore the repairers would have been entitled under the law of Singapore to a maritime lien on the Halcyon Isle for the price of them. The answer to that question is that they are not. The mortgagees are entitled to priority.

This decision was based on the peculiar nature of a maritime lein

As explained in the passage from The Bold Buccleugh, 7 Moo.P.C.C. 267, 284 that has already been cited, any charge that a maritime lien creates on a ship is initially inchoate only; unlike a mortgage it creates no immediate right of property; it is, and will continue to be, devoid of any legal consequences unless and until it is "carried into effect by legal process, by a proceeding in rem." Any proprietary right to which it may give rise is thus dependent upon the lienee being recognised as entitled to proceed in rem against the ship in the court in which he is seeking to enforce his maritime lien. Under the domestic law of a number of civil law countries even the inchoate charge to which some classes of maritime claims give rise is evanescent. Unless...