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Bankruptcy and Diligence etc. (Scotland) Act 2007

Definition of “maritime lien”

772.Paragraph 1(c) inserts a new subsection (2) into section 48 of the Administration of Justice Act 1956 (the “1956 Act”) defining the term “maritime lien” for the purposes of the 1956 Act and any other legislation where that term is used. In Scots law a “lien” is a right in security over property where that property is in the possession of the creditor. Where a creditor has a right in security over moveable property which is not in the creditor’s possession that right is known in Scots law as a “hypothec”. However, in international maritime conventions and in other jurisdictions, where a creditor in a maritime claim has a real right in security over a ship, cargo or other maritime property (such as wreck, flotsam or jetsam) which is not necessarily in the creditor’s possession, the right is referred to as a “maritime lien”. Strictly, a maritime lien is a type of hypothec in Scots law and the insertion of the definition in new subsection (2) makes this clear whilst retaining the usage of the term “maritime lien” to maintain consistency with international usage.

773.Paragraph 2 provides for consequential amendments arising from paragraph 1.

774.The list of claims in respect of which a vessel may be arrested is contained in section 47(2) of the 1956 Act (the “section 47(2) list”). Paragraph 3 extends section 47(2)(r) of the 1956 Act so that it applies to claims arising out of any type of charge held over a ship.

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