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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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