CHAPTER IV

MORTGACE

4.1 Definition
A Mortgage has been defined as including:-
"Any charge as lien on any property for securing money or money's
worth."
Where a shipowner wishes to raise money he may do so by raising on
the money On the security of his ship by giving the person who is prepared to
lend him money an interest in the ship as security for the loan.
The ship owner, the person borrowing the money, is known as "The
mortgagor" Whilst the person lending the money is known as "The mortgagee".
mortgage ပါင်နြခင်
ှ း
securing money အာမခ ငွ ကး
money's worth အာမခနှင့်ညီမ သာ ငွ ကး
shipowner သ ဘာပိင်ရှင်
mortgagor ပါင်နှသူ
mortgagee အ ပါင်ခသူ
loan ချး ငွ

A Ship's Mortgage at Common Law

At one time the method employed by a person wishing to mortgage his
ship was by way of conveyance of the ship to the mortgage. That is to say that
the mortgagor conveyed (transferred) the ship to the mortgagee under an
agreement by virtue of which it the mortgagor paid of the mortgagor at that
time. This form of mortgage ceased as early as 1825 in the case of ships and a
special statutory form of mortgage was introduced.
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4.2 Jurisdiction
At one time mortgage case could not be heard in the Admiralty Court
had to be brought in the Chancery Court.
By S.1(1) of the Administration of Justice Act 1956, it is stated that the
Admiralty Jurisdiction of the High Court includes the right to hear and
determine; (c) any claim in respect of mortgage or charge on a ship or any
share therein.
This jurisdiction covers mortgages in relation to both registered and
unregistered ships.
There is no jurisdiction in the Admiralty Country Courts to hear and
determine such cases.
Although those cases are normally heard in the Admiralty Division of
the High Court, they may also brought in the Chancery Division or even in the
Queen's Bench Division.

statutory form of mortgage ဥပ ဒအရသတ်မတ

ှ ထ
် ား သာပစြဖင့် ပါင်နြခင်
ှ း
Admiralty Court ပင်လယ် ရ ကာင်းတရားရး
Chancery Court သာတူညမ
ီ တရားရး
Administration of Justice Act 1956 ၁၉၅၆ခနှစ်တရားစီရင် ရးအက်ဥပ ဒ
Jurisdiction စီရင်ပိင်ခွင့်
Chancery Division သာတူညမ
ီ တရားရးခွဲ
Queen's Bench Division အဂလန်နိင်ငရှိတရားလတ် တာ်ဘရင်မ၏တရားရးခွဲ
Admiralty Division of the High Court
တရားလွတ် တာ်၏ပင်လယ် ရ ကာင်းစီရင်ပိင်ခွင့်အာဏာရှိ သာဌာနခွဲ

4.3 The Modern Statutory Mortgage

Under S 31 of the Merchant Shipping Act M.S.A it is stated:-
(a) That a registered ship or a share therein may be made a security
for a loan or other valuable consideration;
(b) The instrument creating the security shall be called a mortgage;
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(c) That such mortgage shall be in the form set out in the 1st
Schedule to the Act, (1st Sch. Pt. 1 Dco. Bi & ii) or in some form
as near as possible to that statutory form;
(d) That on the production to the registrar of the ship's port of
registry of the instrument in the proper form the registrar shall
record the mortgage in the register book;
(e) The registrar must record the mortgage created on a particular
vessel in the order in which they are produced to him and not
recording to their date of creation;
(f) That the registrar is to enter a memorandum on each mortgage
produced to him of the fact of it production and the day and hour
of the entry.
A legal mortgage of a registered ship or of a share in such a ship may
only refuse to register the mortgage.
If some other from is used then the registrar at the ship's port of registry
may refuse to register the mortgage.
In special cases the Commissioners of customs and Excise may direct
that the registrar register a document that is no in the form required by the Act.
Where a registered ship or share is mortgaged and by the mortgage is
not registered such mortgage takes effect as an equitable mortgage.
Unlike the old form of mortgage which took place by way of
conveyance of the ship to the mortgagee the statutory mortgage does not
transfer the actual ownership of the vessel to the mortgagee. The statutory form
does however pass the property in the ship or share as between the mortgagor
and the mortgagee so that the property rests in the mortgagee, and to extent that
it is necessary make the ship or share available as security for the mortgage
debt the mortgagee may be treated as the owner of the ship or share.
The statutory form includes for the purposes of indemnification a
description of the vessel identical with appears in the Surveyor's Report.
The mortgage deed must be executed under seal in the presence of one
witness or more, there is no need for the deed to be stamped.
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Although this statutory form of mortgage goes some way toward safe
guarding the security of the mortgagee, yet due to the nature of his security it
can never be rendered entirely safe. The nature of his security has been
described thus:
In Laming V, Seater
The mortgage of a ship holds a security over a floating subject which in
the act of use as a ship may be withdrawn from the jurisdiction and control of
the courts to which the mortgagee can have recourse, and in that use is exposed
to the peril of the sea whereby the value of the security may be wholly or in
part of destroyed.
Modern Statutory Mortgage ခတ်သစ်ြပဌာန်းဥပ ဒအရ ပါင်နှြခင်း
valuable consideration တန်ဘိးရှိ သာအ ပးအယူ ဆာင်ရွက်ချက်
legal mortgage ဥပ ဒအရ ပါင်နြခင်
ှ း
indemnification ြပန်လည်စိက်ထတ် ပးြခင်း
description သရပ် ဖာ်ချက်၊ ဖာ်ြပချက်
withdrawn ရပ်သမ
ိ း် ခဲ့ ပီး

4.4 Registration of Statutory Mortgage

Although in order for the mortgage to take effect as a legal mortgage, it
is necessary for the mortgage to be in the proper form and registered. There is
no provision which states that a mortgagor or mortgagee must register the
mortgage.
The effect of non-registration is that the mortgagee obtain none of the
protection that is afforded a those mortgages whose mortgages are registered
under the provision of the M.S.A 1894.
Since the provisions relating to registration related only to registered
ships or shares in such ships there can be no registration of mortgages relating
neither to unregistered British ships nor to mortgages on foreign ships.

Registration of Statutory Mortgage ဥပ ဒအရ ပါင်နမကိ

ှ မှတ်ပတင်ြခင်း
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4.5 The Importance of Registration

Probably the most important factor which comes from registration is that
the priority of the mortgagee as against other mortgages on the same security
(that is to say the ship or share) is governed by the date of registration of the
mortgage. A mortgage is not effected by any notice, express or otherwise, that
he may have of mortgages already existing on the subject matter if they have
not been registered. See S.33 M.S.A
The Importance of Registration မှတ်ပတင်ြခင်း၏အ ရးပါမ
4.6 Priorities
By registration the Mortgagee obtains priority over;
(a) Earlier unregistered mortgages, whether he knows of them or
not;
(b) Later registered or unregistered mortgages;
See TheBasildon
(c) Unregistered debentures of earlier creation, even though known
to the mortgagee;
(d) Advances made subsequently by virtue of an earlier registered
mortgage under which it was agreed that the mortgage was to
cover both present and future advances by the mortgage. This
right does not in fact arise due to the statute as such. At
common law where such mortgage was entered into the
mortgagee obtained priority for advances made under the
mortgage deed only up to the time that he had notice of a later
mortgage. Registration in this case is notice to the earlier
mortgage of the creation of a later mortgage.
A mortgage to secure a current account was given to a bank as security
for an overdraft and the bank, after registration has made further advances. In
that case the further advance is also protected by the original mortgage but if in
the internal the owner has granted a second mortgage to a third person, this
mortgage ranks before the bank's mortgage for a further advance, if the bank
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has received notice of the following mortgage prior to its allowing an extension
of the shipowners exit. As every mortgagee is deemed to have notice of the
contents of the register, the mere registration is to second mortgage will have
this postponing effect as far as the further advance on the first mortgage is
concerned.
(e) The mortgagor's trustee in bankruptcy.

A Registered Mortgagee does not have priority over:

(a) Earlier registered mortgages
(b) Any mortgages entered into under a current certificate of mortgage
where notice of the certificate of mortgage appeared on the
register at the time when the mortgagee entered into his
mortgage. In such a case it would not matter whether the dates of
the mortgages appearing on the certificate of mortgage were of an
earlier or later date than the registration of the mortgagees'
mortgage.
(c) Claims in relation to which the vessel has already been arrested at
the time when the mortgage was entered into;
(d) The possessory lien of the ship repairer for example or a ship
repairer's lien in such a case.
Fetcher & Campbell V. City Marine Finance Ltd.
(e) Earlier or later maritime liens.
Priorities ဦးစား ပးအစီအစဉ်
Mortgagor ပါင်နှသူ
Unregistered mortgage မှတ်ပမတင်ထား သာ ပါင်နှမ
Original mortgage မလ ပါင်နှြခင်း
mortgagor'strustee ပါင်နှသူ၏ယ ကည်အပ်နှမ
bankruptcy ဒဝါလီခရြခင်း
possessory lien of the ship သ ဘာလက်ဝယ်ရှိမအခွင့်အ ရး
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4.7 The Transfer of Property under the Mortgage

Under the statutory form of mortgage there is mortgaged to the
mortgagee security in express terms the number of shares in the ship and in her
boats, ammunition, small arms, and appurtenances.
See Gletcher Campbell V. City Marine Finance Ltd.
The term "appurtenances" has no precise meaning, but it will cover all
articles appropriated to the ship and necessary in her navigation or for carrying
out of her voyage which were on the ship at the time where the mortgage was
entered into.
Cargo which is on board the ship at the time of the mortgage and which
belonging to the mortgagor, does not pass to the mortgagee under the term
"appurtenances".
In Armstron V.M. Gregor
In the case of the sale of a ship, her "appurtenances" where held to
include a chronometer that was not on board at the time of the sale but which
has been sent ashore to be regulated.
In the Humerous, the MateelVira
A mortgage was taken out on two fishing trawlers. At the time of the
mortgage there was a number of fishing nets on trawler “A” but there were no
nets on trawler "B".
Held that on the mortgage entering into possession of the trawlers, he
was entitled to the actual nets, or nets bought to replace them on trawler "A"
but he was not entitled to any of the acts on trawler "B".
Flecher Campbell V. City Marine Finance Ltd.
A chronometer, a fairway echo sounder and a ship's compass, together
with certain clothing were not within the 'appurtenances' mortgaged to the
defendants တရားခများ
navigation ရ ကာင်းခရီးသွားလာြခင်း
fishing trawlers ငါဖမ်းသ ဘာများ
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4.8 Use of a Collateral Deed

Although for the purpose of registration it is necessary to use the
statutory form when mortgaging a registered ship or shares therein, yet since
there may be many other details which the mortgagor and mortgagee wish to
appear in the mortgage deed is usual to put such details in a collateral deed.
The statutory form will contain a reference to the collateral deed as containing
further particulars.
In the collateral deed will appear such matters as the interest payable on
the sum loaned, the time or the repayment of the principal sum and how
payment of the principal sum and how payment of such sum or other
consideration, is to be made. It will also contain details as to any restriction
which the mortgagee may place on the manner in which the ship is used who is
to be responsible for insuring the vessel, and, most important of all from the
point of view of the mortgagee, details of what shall be considered default on
the part of the mortgagor which will permit the mortgagee to size and sell the
mortgage security.
See Gletcher Campbell V. City Marine Finance Ltd.
collateral deed အရန်စာချူပ်
consideration အဖိးစားနား
mortgage security အ ပါင်အာမခ
mortgage deed အ ပါင်စာချုပ်

4.9 Transfer of a Registered Mortgage

Section 37
A registered mortgage of a ship or a share therein may be transferred to
any person. The transfer must be made out in the form set out in the Act, or in a
form as near as possible to it. The deed of the transfer must be produced to the
registrar at the vessel's port of registry in order that he may make a note of it in
the register book. The registrar must make a note on the instrument of transfer
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to the effect that he has recorded the transfer and stating the day hour of the
entry.

4.10 Transmission of Interest in a Registered Mortgage

Section 38
Where due to death, marriage (not so in England) or bankruptcy the
interest (of the mortgagee is transmitted to another person, then that person
must take a declaration to the registrar at the vessel's port of registry. The
declaration must state how the transmission came about be accompanied by
evidence in support of the declaration.
The registrar upon receipt of the declaration and the evidence, must
enter the name of the person entitled under the transmission in the register book
as the new mortgages.
bankruptcy လူမဲွ
declaration ကညာချက်
transmission ဥပ ဒအရလွဲ ြပာင်း ပးြခင်း

4.11 Discharge of the Mortgage

Where a registered mortgage is discharged generally by the money
payable under the mortgage having been repaid, then the mortgagor should
send to the registrar of the vessel's port of registry notice of this fact. The
registrar will upon receipt of the mortgage deed, properly signed and attested,
with a receipt for the mortgage money endorsed upon it, make an entry in the
register book that the mortgage has been discharged. The effect of discharge is
to return full rights in the mortgaged property to the mortgagor.
Unless this procedure is followed, the registrar has no authority to erase
an entry relating to a mortgage merely because it has been discharged.
Where the mortgagor has come into court and tendered all the money
due under the mortgage, although the date of repayment is passed, in order to
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redeem the mortgage any court may order that the entry relating to the
mortgage in the registry be removed.
repayment ပးဆပ်ြခင်း

redeem the mortgage အ ပါင် ပစ္စည်းြပန်လည် ရွးနတ်ြခင်း

erase ဖျက်ပစ်သည်
redeem ရွးနတ်ြခင်း

4.12 Sale of the Vessel by Mortgagor

As the mortgagor remains the legal owner of the vessel it is possible for
him to sell the vessel to another person even though the vessel is mortgaged.
(a) Sale to a British citizen.
Since the mortgagee has registered is mortgage the buyer takes with
notice of the mortgage and would be unable to withstand an action by the
mortgagee to have the vessel sold in order to recover money owning to him. In
such a case the mortgagee would hold the surplus of any money from the sale,
after satisfying his own account, as trustee for the new owner.
(c) Sale to an alien.
Section 21(1) of the MSA, 1984 specifically states that in the event of
the sale to a vessel to an alien then the register book shall be closed except so
far as relates to any unsatisfied mortgages or existing certificates of mortgage
entered where the vessel is sold under a certificate of sale to an alien and the
register book is to be closed. (See Section 44 (10) MSA 1894)
By Section 52 (3) of the MSA, it is declared that in the event of registry
book being deemed closed in either of the above cases, but there are in fact
outstanding mortgages, including those under a certificate of mortgage, then
any court of her Majesty's dominions having jurisdiction to enforce the
mortgage or would have had jurisdiction had the vessel not been sold, may
enforce such mortgages should the vessel come within their jurisdiction. This
does not give the courts power to enforce such unsatisfied mortgages where the
vessel has been sold by the order of the court.
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Where the vessel is sold under the order of the court then the new owner
takes the vessel free of all encumbrances whatsoever. In such a case a mortgage
of the ship prior to her sale cannot proceed against the ship after the sale in
order to recover money outstanding under the pre-existing mortgage. The rights
of the mortgagee must be exercised (according to the doctrine of priorities)
against the sum held by the court after sale.
legal owner of the vessel သ ဘာတရား၀င်ပိင်ဆိင်သူ
register book မှတပ
် တင်စာအပ်
pre-existing mortgage အရင် ပါင်နြခင်
ှ း
jurisdiction စီရင်ပိင်ခွင့်
encumberances အဟနအ့် တား နှင့် နှး စမများ

4.13 Void Entries on the Register

In the event of an entry on the register being void, then the court has an
inherent jurisdiction to order that the void entry be removed from the register.
inherent jurisdiction
void
4.14 The Rights of the Mortgagor
4.14.1 To remain as Owner
The most important right of the mortgagor is that expressed in Section
34 of the MSA. It is that the mortgagor is deemed to remain owner of the
vessel, except in so far as it may be necessary to make the mortgage ship or
share available as a security for the mortgage deed.
The position was expressed by Lord Mansfield in –
Chimney V. Blackbum
In general, till the mortgagee takes possession the mortgagor is owner to
the entire world, he bears the expenses and he is to reap the profit.
Since the mortgagor remains the owner in all things, he is able to make
contracts for the use of the vessel and these contracts will be valid and
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enforceable. The only proviso to this is that the manner in which the ship is to
be used must not in pair the mortgagee's security.
security အာမခ
reap ရိတ်သိမ်းသည်။
profit အြမတ်
enforceable အတည်ြပုနိင် သာ
mortgagee's security အ ပါင်ခသူ၏အာမခ

4.14.2 Right of Owner to enter into Charter parties

Where the charterparties entered into by the owner are beneficial in that
there is no way impair the mortgagee's security, then the mortgage who
attempts in interfere with the charter party may be restrained by an injunction.
The mortgagee who actually prevents the carrying out of a beneficial
charter party may be condemned in damages and costs to the mortgagor.
charterparties သ ဘာစင်းလးငှားရမ်းြခင်းစာချုပ်များ
impair ပျက်စးီ စသည်
interfere နှာက် ယှက်သည်။
injunction တားဝရမ်း

4.14.3 Right of the Mortgagor to insure

By Section 14 (1) of the Marine Insurance Act, 1906 it is declared that
the mortgagor has an insurable interest in the full value thereof.
It is usual for the collateral deed to stipulate that the mortgagor will keep
the vessel fully insured, and that should be jail in this duty that the mortgagee
may insure the vessel and add the costs of the insurance to the mortgage debt.
For an example of this right see –
The Basildon
In this case it was held that the right to insure and add the costs of the
insurance to the mortgage debt must be expressly stipulated for in either the
mortgage deed or the collateral deed.
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As owners of the vessel, the mortgagor has the right to insure for the full
value of the property even though the mortgagee may have agreed to be
responsible for this and to indemnify him in the event of loss (See Section 14
(3)) of the Marine Insurance Act. 1906)
insurable interest အာမခထားနိင် သာအကျိုးခစားခွင့်
full value တန်ဘိးအြပည့်အဝ
collateral deed အရစာချုပ်
mortgage debt အ ပါင် ကး မီ
insure အာမခထားသည်
indemnify လျာ်သည်
Marine Insurance Act 1906 ရ ကာင်းအာမခအက်ဥပ ဒ

4.14.4 The Right of Redemption

Every mortgagor has the right to redeem the property from the
mortgagee, once the time for redemption has passed (usually six months after
the date of the mortgage) on payment of all the money outstanding under the
mortgage. This is so even though the mortgagee has taken possession of the
security, but after the mortgagee has sold the property in order to realize his
security the right of redemption cannot be exercised.
Should the mortgagee wrongfully refuse to allow the mortgagor to
redeem the security and proceed to set it he will be condemned damages to the
mortgagor.
See Flectcher and Campbell V. City Marine Finance Ltd.
redemption ြပန်လည် ပးဆပ်၊ ပး လ ာ်ြခင်း
wrongfully refuse မှားယွငး် စွာြငင်းဆိြခင်း
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4.15 Right of the Mortgagee

4.15.1 The Right to receive the repayment of the principal sum
together with interest
Where applicable at the time agreed in the mortgage deed or in the
collateral deed.
Generally it is stipulated within the deed that in the event of the
mortgagor failing to repay the sum at the times stated then the mortgagee shall
be at liberty to seize the security and to sell it in order to realize the sum owing
to him.
mortgage deed အ ပါင်စာချုပ်
seize အတင်းအ ကပ်၊ဥပ ဒအာဏာြဖင့်သိမ်းပိက်သည်။
sum owing ပးရန်ရှိ န သာ ငွ ကး

4.15.2 The Right to insure the Security

By Section 14 (1) of the Marine Insurance Act, 1906 the mortgagee is
stated to have an insurable interest in respect of any sum due or to become due
under the mortgage. This is followed in Section 14 (2) by the right of the
mortgagee insure on behalf and for the benefit of other persons interested in the
security (e.g. the mortgagor) as well as for his own benefit.
It is usual for the mortgagee to stipulate in one of the mortgagee deeds
that in the event of the mortgagor failing to insure the security the mortgagee
may insure it and add the costs of insurance to the mortgage debt.
insurable interest အာမခထားနိင် သာအကျိုးခစားခွင့်
mortgagee deeds အ ပါင်စာချုပ်
mortgage debt အ ပါင် ကး မီ
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4.15.3 The Right of the Mortgagee to take Possession of the Security

(1) Where the mortgagor makes default in repayments under the
mortgage agreement.
Although there would seen to be an inherent right in the mortgagee to
take possession in such a case, it is usual to stipulate for it in the mortgage
deeds.
For example: -
Fletcher & Campbell V. City Marine Finance Ltd.
(2) Where the mortgagor by his behaviour endangers the security or
places it in jeopardy.
If by some action of the mortgagor the security becomes endangered or
placed jeopardy then the mortgagee has the right to step in and take possession
of the security.
Thus if the mortgagor has agreed to insure the vessel has not done so the
mortgagee may step in and prevent her sailing until the mortgagor has insured
her:
Where the mortgagor into a charter party that is not at all beneficial the
mortgagee may take possession of the security.
This will not be the case where the charter party had already been
entered into when the mortgage was made and the mortgage had notice of the
fact at that time.
The mere fact that the vessel will be sailing out of the jurisdiction is not
an act endangering the security.
The mortgagee may not have the ship arrested until a certain sum (bail)
is given on the grounds that the vessel is to be used on a voyage that will take
her out of the jurisdiction.
If the mortgagor allows the vessel to become, and remain, burden by
maritime lien, this will be a circumstance which places the security in jeopardy.
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However, the mere fact that a bottomary bond has been given is not
necessarily a factor that will allow the mortgagee to enter into possession on
the grounds that his security is endangered.

The Mortgagee in Possession

The mortgagee may like possession of the security either actually or
constructively.

a. Actual Possession
To take actual possession the mortgagee, will have the vessel seized by
his representative and in any cases will place his own representative on board
the vessel.
In such a case the master may be dismissed by the mortgagee or he may
be retained on board in which case he will become the agent of the mortgagee.
As to the mortgagee entering into actual possession see
Flectcher and Campbell V. City Marine Finance Ltd

b. Constructive Possession
Where the vessel is not within the jurisdiction it will not be possible in
many cases for the mortgagee to enter into actual possession. In such a case the
mortgagee may nevertheless enter into possession constructively by giving
notice of this intention to the mortgagor, charterers, underwriters, and any other
persons know to be interested in the ship.
Whatever form the constructive possession of the mortgagee may take,
he must by his action show a clear intention to take possession of the ship.
Where the Mortgagee has rightly entered into Possession.
Once the mortgagee has entered into possession either actually or
constructively he becomes entitled:-
(i) To take possession of freight which is in the process of being
earned, he is entitled to this freight even though some of it will
relate to services given prior to his taking possession. The
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mortgagee will not be entitled to freight which has actually

accrued due but has not been paid at the time when he takes
possession.
(ii) To continue to work the vessel.
The mortgage must use the ship as a prudent man would, therefore if he
continues to work the ship, after he has taken possession and before the time
sale, he will be responsible to the mortgagor for any damage which maybe
caused to the security due to the imprudent user by the mortgagor.
jeopardy ြပင်းထန် သာ အန္တရယ်
jurisdiction စီရင်ပိင်ခွင့်
mortgagee အ ပါင်ခသူ
actual possession အမှန်တကယ်လက်ဝယ်ရရှိြခင်း
Constructive Possession ဥပ ဒအရမှတယ
် န
ူ င်
ိ သာလက်ဝယ်ရရှြိ ခင်း

4.15.4 The mortgagee's Power sale

Whether or not the mortgage deeds give the mortgagee a right of sale in
the event of certain incidents taking place, by Section 35 of the MSA, 1984
expressly gives the mortgagee a right of sale.
"Every registered mortgagee shall have the power absolutely to dispose
of the ship or share in respect of which he is registered, and to give effectual
receipts for the purchase money but where there are more persons than one
registered mortgagee of the same ship or share, a subsequent mortgage shall
not, except under the order of a court of competent jurisdiction, sell the ship or
share, without the concurrence of every prior mortgagee."
Where the mortgagee has the proceeds of the sale in his possession an
account must be made in which he may: -
(a) Deduct all monies (both principal and interest) owing to/him
under the mortgage agreement;
(b) Deduct all expenses incurred in taking possession;
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(c) Deduct any extra expense he may have been put to on taking
possession, for example the paying of the crew's wages or the
master's wages disbursements;
(d) Deduct he costs of the sale when these charges have been
deducted, of there is anything left, the mortgagee becomes a
constructive trustee of the remainder either for subsequent
mortgages (if any) or for the mortgagor. As a constructive trustee,
the mortgagee may not make any charge on his own behalf for
carrying out the sale of the vessel.

Second or Subsequent Mortgagees

By Section 35 of the MSA, 1894 second or subsequent mortgages of a
ship or share may not sell the ship or shares without the agreement of ever prior
mortgagee, unless he has obtained permission by way of an order of a court of
competent jurisdiction.
Where a second or a subsequent mortgagee does obtain either the
agreement of the prior mortgagee (s) or an order of the court then he will have
to account to the prior mortgages for the sum realized from the sale and their
claim will be satisfied first from such proceeds.

Wrongful Exercise of Powers by the Mortgagee

Where a mortgagee exercises his powers wrongly then he will be liable
in damages to the mortgagor. Thus mortgages have been held liable in damages
where:
(a) A mortgagee wrongly arrested a vessel or the grounds that his
security had been placed in jeopardy when it had not;
(b) A mortgagee wrongly prevented the mortgagor from exercising
his power of redemption;
(c) A mortgagee sold a vessel whilst arbitrators were investigating
the balance of accounts between the parties:
The mortgagee's power sale အ ပါင်ခသူ၏ ရာင်းချနိင်သည့်အာဏာ
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dispose of စွနလ့် တ်သည်

purchase money ဝယ်ယူ ငွ
concurrence တစ် ပိုင်တည်းြဖစ် ပ မ
deduct နတ်ယူသည်
crew's wages သ ဘာသားများ၏လပ်အားခ
master's wages ရယာဉ်မး၏လပ်အားခ
balance of accounts စာရင်းလက်ကျန်
constructive trustee ဥပ ဒအရမှတယ
် န
ူ င်
ိ သာယ ကည်အပ်နခရမ
ှ
second or subsequent Mortgagees ဒတိယအ ပါင်ခသူ

4.15.5 The Mortgagee's Right to foreclose on the Mortgage

In equity the mortgagor may redeem the security by paying of what
owes even after default on his part and entry into possession by the mortgagee.
In order to allow a mortgagee to end this right to redeem by the mortgagor, the
common law allowed the mortgagee to bring a foreclosure action. In this order
the court directs that the accounts between the parties be settled and that if the
mortgagor did not pay the sum due within a certain period (normally six
months from the setting of the accounts) then the mortgagee shall be
foreclosed. Once this date has passed without the mortgagor setting the
accounts the right to redeem is lost forever and the mortgagee becomes the
absolute owner of the property.
There is in fact no machinery in the MSA, 1894, for a foreclosure action
although in principle there would seen to be no reason why the mortgagee
should not make use of this common law right and indeed although extremely
rare they are not completely unknown in the case of ship's mortgages.

the right to redeem ြပန်လည် ရွးနတ်ခင

ွ ့်
foreclosure ြပန်မ ရွးနိင် အာင်သမ
ိ း် လိက်ြခင်း
indeed အမှန်တကယ်
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4.16 Equitable Mortgages

By virtue of the provisions of the MSA, 1894, only registered ships or
shares therein can be the subject of the statutory legal mortgage. All other
mortgages relating to ships or shares must therefore takes effect as purely
equitable mortgages. In so far as an equitable mortgage may be effected in
respect of a registered ship, or share therein, the main drawback is that it cannot
be considered when determining the priorities in relation to other legal (and
thus properly registered) mortgages of that ship or share.
Example of equitable mortgages may exist: -
(a) In the case of an unregistered ship or a share in such;
(b) In respect of foreign vessel;
(c) In unfinished vessel, since these cannot be registered is not
possible for a mortgage on such to be registered.

An equitable Mortgage may be effected in a number of ways for example

(1) By deposit of legal deeds, thus the deposit of the deeds relating to a
registered mortgage with another party in return for a loan would
operate as an equitable mortgage.
(2) An agreement to create a legal mortgage in return for a loan will
operate as an equitable mortgage,
(3) In the case of an unfinished vessel, the deposit of the Builders
Certificate in relation to that unfinished vessel will operate as
equitable mortgage of the subject matter. Since an unfinished vessel
cannot be registered the equitable mortgage will be fairly sale until
the vessel is complete and registered. Where the builder is a limited
company then a better method would be to take a debenture (a form
of mortgage) charging all the companies assets. In such a case the
debenture must be registered at the Companies Registry. It is
possible the case of a ship-builder who is not a limited company to
create a charge over the grater part of his assets under the procedure
set out in the Bills of State Act, 1878 and 1882.
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Equitable Mortgages သာတူညီမ မသ ဘာတရားအရ ပါင်နှြခင်း

statutory legal mortgage ဥပ ဒအရ ပါင်နြခင်
ှ း
drawback အားနည်းချက်
debenture ငွ ချးစာချုပ်
companies assets ကမ္ပဏ၏
ီ ပစ္စည်းများ

Companies Registry ကမ္ပဏ၏

ီ မှတ်ပတင်ဌာန

ship-builder သ ဘာတည် ဆာက်သူ

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