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83 Tul. L. Rev. 1435 (2008-2009)
Choice of Law and U.S. Maritime Liens

handle is hein.journals/tulr83 and id is 1449 raw text is: Choice of Law and U.S. Maritime Liens
Martin Davies*
I.   INTRODUCTION   ........................................................................... 1435
II. WHERE THE LAW GOVERNING THE CLAIM (LEX CAUSAE)
WOULD RECOGNIZE A MARITIME LIEN ..................................... 1437
III. TWO CHOICE-OF-LAW QUESTIONS, NOT ONE ............ 1445
IV   THE IMPLICATIONS OF A CHOICE OF AMERICAN LAW ............... 1454
V    PRIORITIES BY THE LAW OF THE FORUM (LEX FORI) ................. 1457
V I.  C ONCLUSION  .............................................................................. 1460
I.   INTRODUCTION
In an economic climate like the present, with plummeting
markets and corporate failure an increasingly common phenomenon,
creditors understandably give paramount importance to the search for
security and priority of their claims. In the maritime context, the
ancient device of the maritime lien has acquired fresh practical
significance as a result. Access to a maritime lien does not guarantee
recovery, but it puts a creditor in a far better position than rival
claimants whose claims are unsecured. When a lien claimant proceeds
in rem against a ship, other claimants often feel forced to bring their
claims in the same court for fear of losing their rightful security and
priority. As a result, disputes between claimants about security,
priority, and the right to a maritime lien are often fought in forums that
have little connection with the parties or the dispute, except that the
ship happened to be in a particular port when it was arrested pursuant
to the first in rem claim. Because of the international nature of the
shipping business, it is often the case that U.S. courts are required in
consequence to consider in rem actions brought by foreign claimants
seeking recovery in claims governed by foreign law. The attractiveness
of U.S. courts as a forum for in rem claims is enhanced by the fact that
far more claims are secured by a maritime lien under U.S. maritime
law than under the law of other countries. As a result, it is often the
*    © 2009 Martin Davies. Admiralty Law Institute Professor of Maritime Law,
Tulane University School of Law; Director, Tulane Maritime Law Center. The author is
grateful to Professor Robert Force of Tulane University School of Law and to Anton Trichardt
of the Victorian Bar for their helpful comments on a draft of this Article.
1435

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