27 J. Mar. L. & Com. 609 (1996)
A Breach in Tort's Clothing: Pleading Cargo Claims to Gain Lien Priority

handle is hein.journals/jmlc27 and id is 615 raw text is: Journal of Maritime Law and Commerce, Vol. 27, No. 4, October, 1996

A Breach in Tort's Clothing: Pleading Cargo
Claims to Gain Lien Priority
JAMES M. MALONEY*
I
INTRODUCTION
With the passage of the Ship Mortgage Act of 1920,1 Congress carved a
new niche in maritime law2 by statutorily creating a previously unrecog-
nized species of maritime lien that was to be subordinate only to preferred
maritime liens in terms of the priority of its satisfaction from the proceeds
of the sale of an arrested vessel.3 Preferred maritime liens include those
arising out of maritime tort'4 before or after the filing of the preferred ship
*Associate, Kirlin Campbell & Keating (New York City); B.S., State University of New York
Maritime College; J.D., Fordham University. The views expressed in this article are those of the author
and do not necessarily reflect those of the firm. Thanks are due to Robert J. Zapf for his insights and
commentary on some of the issues discussed in this article.
'Act of June 5, 1920, ch. 250, 41 Stat. 1003. The Act was revised in 1988. See Pub. L. No. 100-710,
§ 102, 102 Stat. 4735, 4739-49, codified at 46 U.S.C. app. §§ 31301-31343 (superseding 46 U.S.C. §§
911-961).
2Varian, Rank and Priority of Maritime Liens, 47 Tul. L. Rev. 751, 758 (1973). Other commentators
have characterized the enactment's effect on maritime law in a less kindly manner, noting that the Ship
Mortgage Act threw something of a monkey wrench into the works, raising distinctions in the area of
priorities in which the preferred mortgage must be wedged. A. Parks & E. Cattell, The Law of Tug, Tow
and Pilotage 835-36 (3d ed. 1994).
346 U.S.C. app. § 31301(5)(B). Some courts have distinguished preferred mortgages from traditional
maritime liens. See, e.g., First Nat'l Bank & Trust Co. v. OIL SCREW OLIVE L. MOORE, 379 F. Supp.
1382, 1386-87 (W.D. Mich. 1973) (holding that a ship mortgage does not create a lien on leased
equipment aboard the vessel). See also W. Tetley, Maritime Liens and Claims 224 & n.65 (1985)
(questioning whether the preferred mortgage lien is a true maritime lien and citing United States v. F/V
GOLDEN DAWN, 222 F. Supp. 186, 188, 1964 AMC 691, 695 (E.D.N.Y. 1963), as a case recognizing
the subtle distinction between the two).
446 U.S.C. app. § 31301(5)(B). Congress, on revising the Ship Mortgage Act in 1988, inserted the
word maritime immediately before the word tort, perhaps in an attempt to restrict the categories of
tort that could give rise to a maritime lien. Compare 46 U.S.C. § 953(a) (repealed Jan. 1, 1989) (defining
a preferred maritime lien as including a lien for damages arising out of tort) with 46 U.S.C. app. §
31301(5)(B) (defining a preferred maritime lien as including a maritime lien on a vessel for damage
arising out of maritime tort). The relevant legislative history indicates that the only substantive change
to law made by this paragraph is to change the effective date from the day the preferred mortgage is
recorded and endorsed to when it is filed. H.R. Rep. No. 918, 100th Cong., 2d Sess. 36 (1988), reprinted
in 1988 U.S.C.C.A.N. 6104, 6129. But the addition of the word maritime before the word tort may
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