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PREFERRED SHIP
MORTGAGES AND MARITIME LIENS
50.
8 of
89
3 of 90 |
(1) |
A sale, conveyance,
hypothecation, mortgage or assignment of mortgage of any vessel shall not be
valid in respect of such vessel, against any person other than the grantor or
mortgagor, his heirs or devisees and persons having actual notice thereof, until
the instrument evidencing such transaction is recorded in the office of the
Commissioner or Deputy Commissioner. |
8 of 89
3
of 90 |
(2) |
The Commissioner or
Deputy Commissioner shall record such instruments in the order of their
reception in books to be kept for that purpose and indexed to show - |
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(a) |
the name of the vessel; |
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(b) |
the name of the parties; |
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(c) |
the time and date of reception of
the instrument; |
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(d) |
the interest in the vessel
transferred or affected; and |
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(e) |
the amount and date of maturity of
any mortgage. |
| 51. |
A valid mortgage, which
at the time it is made, includes the whole of any vessel, shall have a preferred
status in respect of such vessel as of the date of its recording, if |
15 of
87
8 of 89 |
(a) |
repealed 26 June 1989; |
| 8 of
89 |
(b) |
the mortgage is recorded as
provided herein; and |
| 8 of
89 |
(c) |
repealed 26 June 1989; |
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(d) |
the mortgage does not stipulate
that the mortgagee waives the preferred status
thereof. |
52.
15 of
87 |
A vessel which is the subject of a
preferred mortgage may not be cancelled from the Register for so long as the
indebtedness secured by the Preferred Mortgage remains unsatisfied or the
Mortgage is not otherwise discharged. The interest of the mortgagee in a vessel
registered under this Act shall not be terminated by a forfeiture of the vessel
for a violation of any law of Vanuatu, unless the mortgagee authorized,
consented, or conspired to effect the illegal act, failure, or omission which
constituted such violation. |
53.
8 of
89 |
A bill of sale, conveyance, or
mortgage shall not be recorded unless it states the interest of the grantor or
mortgagor in the vessel, and the interest so sold, conveyed or mortgaged. A Bill
of Sale, conveyance, mortgage, or certificate of discharge thereof shall not be
recorded unless previously acknowledged before the Commissioner or a Deputy
Commissioner or a consul or consular agent of Vanuatu or before a notary public
or other officer authorised by the laws of the place where the acknowledgment is
made to take acknowledgments of
deeds. |
54.
15 of
87 |
The Commissioner or any Deputy
Commissioner may accept for recording in his office upon payment of a fee of
fifty dollars any bill of sale of a vessel which recites the interest of the
grantor in the vessel and the interests sold or conveyed, provided it has
previously been acknowledged in accordance with the provisions of section 53,
and provided further that any bill of sale of a vessel already documented under
the laws of Vanuatu must have incorporated therein a true copy of its latest
Certificate of Registry. |
55.
15 of
87
8 of 89 |
The Commissioner or any Deputy
Commissioner may accept for recording in his office, upon payment of a fee of
four hundred twenty-five dollars any mortgage (including a revolving credit
mortgage) on a vessel which recites the interest of the mortgagor in the vessel
and the interest so mortgaged, provided it has been previously acknowledged in
accordance with the provisions of section 53, and provided further that written
proof is furnished to him of the amounts and dates of any documents or evidence
of debts in support thereof. At the time of recording the Commissioner or Deputy
Commissioner will, if requested, certify without charge 2 copies of any mortgage
so recorded. |
| 56. |
(1) |
A mortgage which complies with the
conditions enumerated in this Chapter is designated as a preferred mortgage. |
| 8 of
89 |
(2) |
Repealed 26 June 1989. |
| 8 of
89 |
(3) |
Repealed 26 June 1989. |
| 8 of
89 |
(4) |
Repealed 26 June 1989. |
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87
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(4A) |
Repealed 26 June 1989. |
| 8 of
89 |
(5) |
A mortgage which includes property
other than a vessel shall not be held a preferred mortgage unless the mortgage
provides for the separate discharge of such property by the payment of a
specified portion of the mortgage indebtedness. |
| 8 of
89 |
(6) |
Repealed 26 June 1989. |
57.
8 of
89 |
(1) |
A preferred mortgage shall
constitute a maritime lien upon the mortgaged vessel in the amount of the
outstanding mortgage indebtedness secured by such
vessel |
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(2) |
The lien of a preferred mortgage
referred to in subsection (1) shall not in any way be impaired or affected
because the vessel's document following recording of the mortgage has expired,
or has been restrictively endorsed, suspended, revoked or cancelled. |
58.
15 of
87 |
Notwithstanding anything to the
contrary in any other law, a Preferred Mortgage may bear such interest on an
obligation accrued by the mortgage as the parties may agree which interest may
be at fixed rates, variable rates, rates based upon formulas or by adding
margins to the mortgagee's cost from time to time of funding an obligation
secured by the mortgage, or by any other method to which the parties may agree. |
58A.
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of 87
8 of 89 |
(1) |
A Preferred Mortgage
shall not be extinguished or lose its priority because all previously
outstanding obligations secured thereby have been fully repaid or otherwise
performed, provided that an advance or other value is to be given at a later
time pursuant to commitment existing at the time the Mortgage is recorded. For
the purpose of this paragraph an advance or other value is given "pursuant to
commitment" if the mortgagee or other person entitled to the benefit of the
security of the mortgage has bound himself to give it, whether or not a
subsequent event of default or other event not within his control has relieved
or may relieve him from his obligation. |
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87
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(2) |
When a Preferred
Mortgage secures an obligation in respect of which one or more advances or
repayments may be made from time to time in the future and the maximum amount
outstanding under the obligation at any one time is limited to a certain amount,
the amount to be recorded with respect to such obligation may be either - |
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(a) |
such maximum amount that may be
outstanding at any one time; or |
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(b) |
the aggregate of all possible
advances that may be made. |
| 8 of
89 |
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The recording shall
clearly indicate whether the amount is the maximum amount that may be
outstanding at any one time or is the aggregate of all possible advances. |
58B.
15
of 87
8 of 89 |
(1) |
The obligations secured
by a Preferred Mortgage may be expressed in any unit or units of account to
which the parties may agree, including but not limited to currency of the
Republic of Vanuatu, currency or currencies of any foreign state or states, or
in equivalents of any other unit or units of account established by
inter-governmental organizations. |
15 of
87
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(2) |
If a Preferred Mortgage
secures an obligation in one or more specified units of account and there is an
option to have a unit of account alternated from time to time, the principal
amount of the mortgage to be recorded shall be denominated in one or more of the
said specified units of account. The recordation may include as additional words
"or an equivalent amount in any alternate unit of account," or similar language,
and if such additional words are recorded, no change in the recorded amount
shall be required to reflect the fact that the obligation or any portion thereof
is subsequently denominated in a different unit or units of account, unless the
parties otherwise agree. |
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(3) |
When a Preferred
Mortgage secures an obligation in respect of which there is an option to have
the obligation amount denominated from time to time in alternate units of
account but which continues to be payable in, or by reference to, a specified
unit of account - |
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(a) |
the amount of the obligation to be
recorded shall be expressed in the specified unit of account;
and |
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(b) |
notwithstanding any exercise of
the option, no change in the recorded amount shall be
required. |
| 8 of
89 |
(4) |
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A preferred mortgage referred to
in subsection (2) or (3) of this section may additionally secure any loss up to
a specified amount arising out of fluctuations between a specified unit of
account and any alternate unit of account in which the obligation amount may be
denominated from time to time, and such specified amount shall also be recorded. |
| 59. |
(1) |
The mortgagor, before executing a
preferred mortgage, shall disclose to the mortgagee in writing the existence of
any maritime lien, prior mortgage, or other obligation or liability upon the
vessel to be mortgaged, which is known to the
mortgagor. |
| 8 of
89 |
(2) |
After the execution of such
mortgage and before the mortgagee has had a reasonable time in which to record
it, the mortgagor, without the consent of the mortgagee, shall not incur any
contractual obligation creating a lien upon the vessel, other than liens for
wages of stevedores when employed directly by the owner, operator, master,
ship's husband, or agent of the vessel, for wages of the crew of the vessel, for
general average or for salvage, including contract salvage, tonnage taxes and
all other charges (not to exceed 1,000 dollars) of the Commissioner in respect
of the vessel. |
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(3) |
Whoever, being a mortgagor or an
officer of a corporate mortgagor, with intent to defraud, violates this section
shall be liable to a fine not exceeding 3 ,000 dollars or to imprisonment for a
term not exceeding 2 years or to both. The mortgage indebtedness shall thereupon
become immediately due and payable at the election of the mortgagee. |
| 60. |
(1) |
Upon recording a preferred
mortgage, 2 certified copies shall be delivered to the mortgagor who shall
place, and use due diligence to retain, 1 copy on board the mortgaged vessel and
cause such copy and the document of the vessel to be exhibited by the master to
any person having business which may give rise to a maritime lien or to the
sale, conveyance, or mortgage of the vessel. |
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(2) |
A master who wilfully fails to
exhibit such documents and copy of mortgage may have his licence suspended or
revoked. |
61.
8 of 89 |
Repealed 26 June 1989. |
| 62. |
The mortgagor upon a complete
discharge of the mortgage indebtedness shall forth with file a certificate of
such discharge duly executed by the mortgagee, his successors or assigns with
the Commissioner or his duly authorised agent, who shall thereupon record the
certificate and the mortgagor may similarly file a certificate of partial
discharge of a mortgage covering more than 1
vessel. |
| 63. |
(1) |
The lien of a preferred mortgage
may be enforced in Vanuatu by a suit in rem upon default of any term or
condition. In addition to any notice by publication, actual notice of the
commencement of suit shall be given by the plaintiff, in such manner as the
court directs, to the master, other ranking officer, or caretaker of the vessel,
and any person who has recorded a notice of claim of an undischarged lien upon
the vessel, unless after search by the plaintiff satisfactory to the court, such
person is not found within Vanuatu. Failure to give such notice shall not
constitute a jurisdictional defect, but the plaintiff shall be liable to such
person for damages in the amount of his interest in the vessel terminated by the
action. |
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(2) |
The lien of a preferred mortgage
may also be enforced by an action in rem in admiralty or otherwise in any
foreign country in which the vessel shall be found, pursuant to the procedure of
such country for the enforcement of ship mortgages constituting maritime liens
on vessels documented under the laws of such
country. |
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(3) |
Notwithstanding anything in this
Act, the mortgagee may, in addition to all other remedies granted by this
Chapter, bring an action in personam against the mortgagor in any court of
competent jurisdiction for the amount of the outstanding mortgage indebtedness
or for any deficiency in the full payment
thereof. |
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(4) |
This Act does not authorise the
enforcement by action in rem in admiralty of the rights of the mortgagee in
respect of realty or personality other than the vessel or vessels covered by the
mortgage. |
| 64. |
As used in sections 57, 63, 65 and
67 of this Act, the term "preferred mortgage" shall include, in addition to a
preferred mortgage made pursuant to the provisions of this Chapter, any
mortgage, hypothecation or similar charge created as security upon any
documented foreign vessel if such mortgage, hypothecation or similar charge has
been duly and validly executed and registered in accordance with the laws of the
nation where the vessel is documented; and the term "preferred mortgage lien"
shall also include the lien of such mortgage, hypothecation or similar charge. |
65.
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89 |
Upon the sale of any vessel in an
action in rem in admiralty for the enforcement of a preferred mortgage lien, all
pre-existing claims on the vessel, including any possessory common law lien
shall terminate and shall thereafter attach, in like amount and in accordance
with their respective priorities to the proceeds of sale; except that the
preferred mortgage lien shall have priority over all claims against the vessel,
except liens arising prior in time to the recording, of the preferred mortgage
as provided in this Chapter, liens for damages arising out of tort, for crew's
wages, for general average, and for salvage (including contract salvage) and
expenses and fees allowed and costs taxed by the
court. |
| 66. |
(1) |
Whoever furnishes repairs,
supplies, towage, use of dry dock or marine railway, or other necessaries, to
any foreign or domestic vessel upon the order of the owner or person authorised
by the owner, shall have a maritime lien on the
vessel. |
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(2) |
The managing owner, ship's
husband, master or any person to whom the management of the vessel at the port
of supply is entrusted including any such appointed by a charterer, owner pro
hac vice or agreed purchaser in possession, shall be presumed to have authority
from the owner to procure such necessaries, but a person tortiously or
unlawfully in possession or charge of the vessel shall not have authority to
bind it. |
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(3) |
This section shall not confer a
lien when the furnisher knows, or by exercise of reasonable diligence could have
ascertained, that because of the terms of a charter party, agreement for sale of
the vessel, or for any other reason, the person ordering necessaries was without
authority to bind the vessel
therefor. |
| 67. |
This chapter shall not prevent the
furnisher of repairs, supplies, towage, use of dry dock or marine railway, or
other necessaries, or the mortgagee, from waiving his right to a lien or in the
case of a preferred mortgage lien to the preferred status of such lien, at any
time by agreement or otherwise. |
67A.
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of 87
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(1) |
Except as provided in subsection
(2) of this section, nothing in this Act or in any other provision of law, shall
require permit or be construed as requiring or permitting, endorsements of any
nature upon any vessel's documents in connection with the validity, recording,
designation as a preferred mortgage, or preferred status of any mortgage in
respect of any such vessel, or the clearance to be given to such vessel
following the recording of any such mortgage. |
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(2) |
Any vessel's document issued or
reissued prior to the effective date and any instrument made, recorded and
endorsed prior to that date shall remain subject to the endorsement requirements
under this Act at that date until such time as the vessel's document is
surrendered or reissued or a new document is issued, as the case may be.
The
effective date in this subsection means the date of the coming into effect of
the Maritime (Amendment) Act, 1987. |
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Document Processing Time |
Seafarer documents
| 15 Business days
| Registration documents
| Same day
| Exemptions certificates
| Same day
| | Updated November 14, 2008 |
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