Effects of Maritime Mortgages on Creditors and Debtors under the UAE Law
Definition of mortgage, clarification and consideration of its importance. Study of the consequences of the pledge agreement for the pledgee from the point of view of assigning the right to a third party, the method of foreclosure on the pledged vessel.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 31.01.2024 |
| Размер файла | 66,8 K |
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When a vessel has a nationality, it means that it is registered in such a State. Therefore, it holds its nationality. Hence, an independent system shall arise, called a ship registration system, that is subjected to international and national law in terms of its proceedings and effects. Due to the importance of the registration of ships and the important legal effects resulting therefrom, it has been necessary to establish the minimum conditions with which the State complies to confirm the genuine link between the State and the ship holding its nationality. Therefore, the United Nations Convention on Conditions for Registration of Ships, 1986, is concluded and establishes some important principles which the States comply with, uphold, and add to their national laws. One of those principles is stated in Article (4) of the Convention:
"1. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas.
Ships have the nationality of the State whose flag they are entitled to fly.
Ships shall sail under the flag of one State only.
No ships shall be entered in the registers of ships of two or more States at a time, subject to the provisions of paragraphs 4 and 5 of article 11 and to article 12.
A ship may not change its flag during a voyage or while in a port of call, save in the case of a real transfer of ownership or change of registry".
Registration. Disposals must be by an official document, recorded in the ship's register for the purpose of registration. If made outside the State, they must be executed before the Consul of the State. Article 66 of the UAE Maritime Commercial Law No. (26) of 1981 sets forth:
"1.All dealings of which the subject matter is the construction or transfer of a ship or the extinguishment of a right of ownership therein or any other rights in rem must be by an official document, failing which they shall be invalid.
If such dealings occur in a foreign country, they must be written before a consul of the State therein, or before the competent local officer if there is no consul.
The said dealings shall be of no effect as between the contracting parties or in relation to other parties unless they are recorded in the Register of Ships in accordance with the procedures laid down by law".
Sale to a foreigner requires following the procedures established in Article 70 of the UAE Maritime Commercial Law No. (26) of 1981. Otherwise, the sale is deemed void.
It is worth noting that there is an international treaty specifically designed to tackle the legal aspects and implications of ship sales on a global scale; it is called the Convention on the International Effects of Judicial Sales of Ships. This convention aims to establish a harmonized legal framework for the recognition and enforcement of judicial sales of ships across different jurisdictions. (Cao et al., 2023).
Conclusions
The UAE Maritime Commercial Law (26) of 1981 regulates the maritime mortgage from Articles 97 to 114, in addition to the application of provisions of the Civil Transaction Code on security mortgage to the vessel mortgage.
This research concludes that the mortgage contract has various implications for both the creditor (mortgagee) and the debtor (mortgagor) in relation to the assignment of the mortgage right to a third party, the procedures involved in executing the mortgage on the vessel, the rights of tracking and priority, as well as the effects stemming from the maritime mortgage on the debtor. For the creditor, the mortgage contract affects their ability to transfer their mortgage right to another party. Additionally, it specifies the procedures and methods for carrying out the mortgage on the vessel. The contract also establishes the creditor's rights of tracking and priority, ensuring their interests are protected in case of default or other legal proceedings.
On the other hand, the debtor is obligated to manage the mortgaged vessel with due diligence, which entails taking necessary steps to maintain its condition and value. The mortgage contract outlines the debtor's responsibilities in this regard. Moreover, the contract provides clarity regarding the debtor's permissible transactions and dealings involving the mortgaged vessel, defining any limitations or conditions that may apply.
In conclusion, it is found that the maritime mortgage regulations outlined in the UAE Maritime Commercial Law (26) of 1981 need to be revised and updated to encourage foreign investment in the country. This is particularly crucial considering that the law was enacted in 1981, and numerous developments have occurred in the maritime commerce sector since then. By updating the maritime mortgage rules, the legal framework can better accommodate and attract foreign investment, thereby stimulating economic growth and enhancing the competitiveness of the UAE in the global maritime industry.
The changes and advancements in technology, trade practices, and international maritime conventions over the years necessitate a modernized approach to maritime mortgage regulations. Updating the law would allow for the inclusion of provisions that align with contemporary standards and practices, ensuring that the UAE remains an attractive destination for foreign investors seeking opportunities in maritime commerce.
By revisiting and revising the maritime mortgage rules, the UAE can signal its commitment to fostering a favourable and secure investment environment in the maritime sector. This can facilitate increased capital flows, technology transfer, job creation, and overall economic prosperity. Therefore, it is essential to undertake the necessary updates to the existing regulations in order to harness the full potential of foreign investment in the maritime industry and maintain the country's competitiveness on the global stage.
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