C. Simple and Preferred Ship Mortgage
The New Code includes unified provisions for the constitution of both simple and preferred mortgages over a ship; accordingly, legislative decree 3899/1958 on preferred mortgages is to be abolished.
Although, the New Code in many instances repeats rules that are already applicable, several new rules are being introduced, notably including the following:
- tonnage restriction for a preferred mortgage: although the New Code retains the tonnage restriction for the registration of a preferred mortgage (i.e. only ships with a gross tonnage equal or over 500 grt can be encumbered with a preferred mortgage), it also introduces the possibility of reducing said tonnage restriction upon issue of a relevant presidential decree;
- mortgage over ships under construction: the New Code allows for the constitution of a simple or preferred mortgage over a ship under construction;
- ranking: the New Code provides that the time determining the ranking of a mortgage (either simple or preferred) is the time of submission of the relevant petition for the registration of the mortgage with the competent ship registry. This is currently the rule for determining the ranking of mortgages over ships registered in accordance with the ministerial decisions issued pursuant art. 13 of L.D. 2687/1953 and differs from the general rule, which provides that mortgages registered on the same day have the same ranking;
- invalidity of mortgage registered after an attachment: the New Code amends the previous rule that any mortgage registered after the registration of an attachment is erga omnes invalid and provides that any such mortgage shall be invalid only towards the party imposing the attachment; and
- compulsory revocation of mortgage in case of bankruptcy: the New Code extends the application of the bankruptcy code provision according to which any mortgage granted within six months prior to the “suspect period” and until the declaration of bankruptcy is subject to compulsory revocation; it is highlighted however that the exceptions applicable to mortgages that secure loans are still applicable.
D. Maritime liens
The New Code reinstates the basic characteristics of maritime liens (i.e. that they are imposed directly by law, “follow” the claim they secure and rank ahead of any mortgage and other subordinate claims) and determines their debtor in a general manner, capturing both the owner and the operator of the ship. It is worth mentioning that pursuant to the New Code:
- maritime liens rank ahead of any mortgage (as is the common international practice) with the exception of mortgages over ships registered in accordance with the ministerial decisions issued pursuant art. 13 of L.D. 2687/1953, in which case such mortgage outranks any maritime liens;
- liens refer to the ship and are not extended to the fare; - costs incurred by creditors for the commencement of the enforcement procedure against a ship are deducted from the enforcement proceeds and are not included in the creditors’ list. The same applies for any costs made for guarding a ship following its attachment;
- first class liens (shipping taxes, duties and rights that burden the ship) remain unchanged.
However, liens for duties and rights that burden a ship will secure such a claim up to the amount reached during the last six months prior to its attachment:
- second class (captain and crew wages, social security funds), third class (assistance at sea claims) and the fourth-class liens (ships collision claims) remain unchanged;
- liens “survive” the contractual sale of a ship, provided that the person in favour whom the lien is created files a relevant lawsuit for the recognition of such lien within three months from the registration of the sale with the competent ship registry. The above deadline is one year for the recognition of liens for the captain and crew’s wages; and
- liens are released following the sale of a ship through public auction, though a creditor whose claim has not been fully satisfied still has the right to pursue it with the new owner of said ship.
The Report • June 2023 • Issue 104 | 61
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