Preface

A very good article on the topic of martime liens is Maritime Liens in the Conflict of Laws by Prof. William Tetley. I recommend it as a good introduction to maritime liens and how they are qualified by different jurisdictions. The following quote from a court decision, The Bold Buccleugh, is taken from that article:

“Having its origin in this rule of the Civil Law, a maritime lien is well defined by Lord Tenterden, to mean a claim or privilege upon a thing to be carried into effect by legal process; and Mr. Justice Story… explains that process to be a proceeding in rem… This claim or privilege travels with the thing, into whosoever possession it may come. It is inchoate from the moment the claim or privilege arises, and when carried into effect by legal process, by a proceeding in rem, relates back to the period when it first attached.”

Another significant takeaway from the article is that United States courts will enforce a maritime lien that is valid under the laws of the foreign jurisdiction where it attached even though such lien doesn’t qualify as a maritime lien under U.S. law.

Say Cheese

Now, from this I’d like to explain the general idea of a maritime lien by way of analogy to photography – old-school, pre-digital, shot-on-film photography just because I’m an old-school kind of guy.

First the photographer loads film into his camera, then he points the camera at some object of which he wishes to capture an image. and then he pushes the shutter release which momentarily opens the shutter to allow light reflected from the object to pass through the camera lens, and the film emulsion to thereby be exposed. At that point the image captured by the film can be said to be inchoate. It attached to the film at the moment the shutter was opened, but for the time being it remains undeveloped.

Before the photographer can enjoy the image he has captured on the film it must be properly developed through a specific photochemical process. Then, once he has developed the image on the film it is his property from which he can create derivatives – complete or cropped photographic prints – from that original image which are also his property and which he can therefore dispose of as he chooses. He can hang them on his wall, give or sell them to someone else to hang on their wall, or loan them for display in a museum or art gallery.

I’m sure you get the idea.

A maritime lien is similar. It begins with some action, event, or condition by which a claim attaches to the thing involved – like the latent image attaches to the camera’s film. In the case of the maritime lien, the claim attaches to the title to some tangible object or intangible right. That thing or right is the asset represented by the title itself. You can think of the camera’s film as being the title to the image captured by it. The maritime lien, like the latent image on the film, travels with the thing wherever it goes, but it must be developed correctly for the lien holder to realize its value. It must be properly developed by a legal proceeding, in rem, for the latent claim to be processed into a recognizable maritime lien.

In the case of our claim, that process begins with an informal proceeding¹ in which the claimant certifies his claim (outlined in a Security Agreement) before a notary public. This informal proceeding takes place in the court of record with the claimant acting as the sovereign or tribunal of the court and the notary public acting as the magistrate who authenticates² the judgment of the claimant/tribunal. At that point you could say that the claimant has developed a negative image of his claim. Next he must make a positive print of it that will be visible and appreciated by the public. To so so he must follow the Uniform Enforcement of Foreign Judgments Act process. Then his claim will be displayed in the public record/gallery where it may be seen by public actors.

The claimant will then post a public notice advertising his claim – a UCC Financing Statement – and provide copies of that notice to whomever he decides might be interested in seeing it. He may also dispose of his claim, or its derivatives, by gift, sale, assignment, etc. as he deems appropriate – itself a whole ‘nuther topic – but at this point, provided he correctly executes the process, he will have a properly developed maritime lien to show the world.

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¹ Arizona Revised Statutes 14-1201 (27) – “Informal proceedings” means those proceedings conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative…

²  The COLB is authenticated in a different manner than the Security Agreement. Below is an explanation using Arizona statutes (other states will surely have similar statutes) to try and plow through the obfuscation via legalese to discover how and why we have the Security Agreement authenticated. I’ve quoted relevant language of particular statutes and underlined those specific portions that relate to authentication of the Security Agreement.

This is the authentication Bill referred to when he said “the sheeple have been trained to not file docs without a notary’s signature, and the sig is needed to authenticate.” The “sheeple” he refers to here are public servants, such as the clerk of the court in our case. 41-322 (A.) below refers us to 33-501 (1) to determine the authority of a notary public to perform a notarial act in the court of record.

41-322. Authentication of authority of officer for foreign notarizations

A. If a notarial act is performed by any of the persons described in section 33-501, paragraphs 1 through 4, other than a person authorized to perform notarial acts by the laws or regulations of a foreign country, the signature, rank or title and serial number, if any, of the person is sufficient proof of the authority of the person to perform the act. Further proof of the person’s authority is not required.

33-501 (1.) below indicates that by engaging a notary public to notarize the Security Agreement, one authorizes the notary to perform that notarial act in the court of record. The tribunal (sovereign) of the court – the claimant – effectively appoints the notary as an officer of the court of record (the place in which the notarial act is performed). The notary then performs the ministerial function of verifying the indentity(ies) of those who sign the agreement. The notary’s signature evidences their acceptance of the appointment and the notary’s seal becomes the seal of the court. The entire arrangement is implied by the actions of those involved and no express appointment/acceptance is needed. The notary’s signature, title, and seal are prima facie evidence of the entire action as stated in 41-322 (A.) above. Understanding and correctly executing this process are what constitute a COMPETENT court of record.

33-501. Recognition of notarial acts performed outside this state

For the purposes of this article, “notarial acts” means acts which the laws and regulations of this state authorize notaries public of this state to perform, including the administering of oaths and affirmations, taking proof of execution and acknowledgments of instruments, and attesting documents. Notarial acts may be performed outside this state for use in this state with the same effect as if performed by a notary public of this state by the following persons authorized pursuant to the laws and regulations of other governments in addition to any other person authorized by the laws and regulations of this state:

1. A notary public authorized to perform notarial acts in the place in which the act is performed.

This is the authentication Bill meant when he said,

However, if we need to go private at any time, the problem is that the sheeple have been trained to not file docs without a notary’s signature, and the sig is needed to authenticate. So we alter the language accordingly to remove terms like “person,” and add disclaimers indicating that use of the notary does not stipulate to an election to submit to the jurisdiction. Then it is what we say it is. 

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