Volume 3, No. 3 
July 1999

  Gemma Capellas



Translation Journal

The Problem of Terminological Equivalence in International Maritime Law:

the case of hypothèque and mortgage in the document Final Act and International Convention on Maritime Liens and Mortgages

by Gemma Capellas-Espuny


Among the problems posed by legal translation, that of terminological equivalence is one of keen current interest. It is a well-known fact that legal translation as such poses many problems due to the differences in legal systems from one country to another.
    In contrast to what happens with Mathematics or Chemistry, where there is an objective extra-linguistic reference, legal realities are conceived as the result of legal discourse which creates its own reality from different or shared historic traditions, in one or several languages, and which cannot coincide in the concepts of analysis or can only coincide partially when they focus on a common international legal phenomenon.

Legal translation implies both a comparative study of the different legal systems and an awareness of the problems created by the absence of equivalents.
Each legal system is situated within a complex social and political framework which responds to the history, uses and habits of a particular group. This complex framework is seldom identical from one country to another, even though the origins of the respective legal systems may have points in common.
    The diversity of legal systems makes research in the field of legal terminology more difficult because a particular concept in a legal system may have no counterpart in other systems. Sometimes, a particular concept may exist in two different systems and refer to different realities, which raises the problem of documentation and legal lexicography. Legal translation implies both a comparative study of the different legal systems and an awareness of the problems created by the absence of equivalents.
    Translation is much more than the substitution of lexical and grammatical elements between two languages. Often the process of translation requires the art of leaving aside some of the linguistic elements of the source text to find an expressive identity among the elements of the source and the target texts.
    In legal translation, a problem arises from the very beginning if the translator aims at finding the exact terminological equivalent. The attribution of an equivalence to a legal term, for which no comparable concept exists in another legal system, can be the cause of ambiguities, confusion and all types of miscomprehension due to the effect the term in question produces in the reader of the translated text.
    Therefore, the difficulty of terminological equivalence in legal translation is reflected, above all, in the expectations of the reader from the translated text. In most cases, legal texts do not lend themselves to precise translation, unlike the case of a scientific article. In this respect, legal concepts, terminology and realities of one society only correspond partially to those of another, that is to say, certain concepts may totally coincide, while others may only partially do so. As a result, in the field of legal translation, the major practical difficulty is that of deciding whether a concept is the same in two languages or whether it is different in terms of the consequences which ensue.
    Thus, there are certain terms which appear similar in two different legal systems but which might mislead the reader if he tried to understand them literally, assuming they cover the same concept in both legal systems. This is the case of the term mortgage.
    The English term mortgage is terminologically associated with the Spanish term hipoteca but with so many caveats and reservations that, if dictionaries did not associate both terms, no lawyer would have ever identified them as equivalent (Cano, Hickey, Ríos, 1994: 32).
    It is obvious that English and Spanish terminology, as well as the legal concepts they formulate, are far from coinciding exactly; so, as Gémar (1995: 170, cit. Kelsen: 1962) puts it, "une traduction fidèle en esprit d'une langue dans l'autre est extrêmement difficile". And there lies the real dilemma of legal translation. Legal translators must look for juridical and linguistic equivalence of the terms of their speciality, without sacrificing one equivalence in favour of the other. Thus, legal translators can only look for the pragmatic equivalence of concepts, that is to say, the same outcome in both texts, even if by so doing they must apply different strategies:
    D'un côté, elle [l'équivalence] doit se garder de corrompre la langue par le calque servile qui n'en respecte pas le génie et la structure, de l'autre côté, il lui faut ne pas trahir le sens du message par l'imperfection inhérente à ce genre d'équivalence (Gémar, 1995: 149, cit. Pigeon, 1982: 279).
    According to the United Nations Office in Geneva's Terminology and Technical Documentation Section, the Spanish term hipoteca and the French hypothèque should be translated as mortgage. The term hypothec is used in academic works and also in Scottish law, but the distinction between the common-law mortgage and the civil-law hypothec is so subtle, and the similarities between them so great, that for all practical purposes they can be regarded as identical in meaning. It should be noted that in England a mortgagee becomes a conditional owner of the property mortgaged to him, but not its possessor (unless he forecloses, in which case he becomes both absolute owner and possessor), whereas the hypothécaire gains neither ownership nor possession of the mortgaged property unless he enforces the mortgage.
    From a legal and linguistic point of view, it is surprising that the original version of the document Final Act and International Convention on Maritime Liens and Mortgages, signed between the United Nations Conference on Trade and Development (UNCTAD) and the International Maritime Organization (IMO) in 1993, used a French term (hypothèque) and that the French and Spanish versions adopted, respectively, the same English term (mortgage). This example clearly illustrates the lack of unanimity regarding the meaning of the term and the difficulty in translating certain concepts in the field of international maritime law.
    It is worth pointing out that the translation of this term, as well as that of the term mortgage into hipoteca naval or hypothèque maritime is a question of substantive law. In April 1987 the Secretariats of the UNCTAD and the IMO issued an extensive paper on the similarities and differences between mortgages under English common law, and hipotecas under civil law of Roman tradition. As a result of this paper, the translations that were later used in the above-mentioned 1993 Convention were adopted.
    On the one hand, the term hypothèque appearing in the original English version of the Convention, describes the action of the captain of a vessel when a ship and/or its merchandise are given as mortgage in order to guarantee the return of a loan which has been received due to an emergency (e.g. breakdown, damage). On the other hand, the term mortgage appearing in the Spanish and French versions of the document refers to the owner's transfer of his right on the vessel to the mortgagee as a guarantee of a loan. This example clearly shows us that, in fact, the translations of the original term hypothèque do not refer to the same concept, although the differences are not enormous.
    Thus, this case clearly shows that the exact translation of certain technical terms is impossible because institutions and legal systems of one country may differ from those in another country due to social, cultural and historical differences. However, in such cases it is absolutely necessary to look for a functional equivalent. In the framework of the Final Act and International Convention on Maritime Liens and Mortgages, we could have adopted the Spanish term hipoteca legal privilegiada and the French hypothèque légale privilegiée to translate the term hypothèque used in the original English text.
    In the same sense, the English term mortgage is translated as hipoteca naval into Spanish and as hypothèque maritime into French.
    Although the United Nations Law Terminology Glossary does not point out any problems concerning the translation of this term, the real-life situation is different. The translation of the English term mortgage as hipoteca naval or hypothèque maritime is a classical example of the difficulties of legal texts: "En ambas jurisdicciones (romanista y anglosajona) la 'hipoteca/mortgage' sirve para conseguir prestados fondos de una entidad financiera utilizando la propiedad (normalmente inmóvil) como aval o garantía de que serán devueltos con interés al vencimiento del plazo previsto en el contrato otorgado a tal efecto. Sin embargo, los resultados jurídico-mercantiles del mortgage son muy diferentes de los de la 'hipoteca,' en cuanto quien fuera el propietario legal de la propiedad que sirve de garantía hasta el vencimiento del plazo, cuáles serían las consecuencias de la mora en el pago de un plazo, qué efecto surtiría la falta de pago en el último plazo, etc." (Cano, Hickey, Ríos, 1994: 32).
    In the framework of English and French legal systems, the terms mortgage and hypothèque are also far from referring to the same legal reality. "La comparabilité de ces termes laisse à désirer et il vaut mieux ne pas forcer le rapprochement d'institutions juridiques n'ayant pas la même structure ni la même fonction. Le mieux que l'on puisse suggérer, c'est peut-être de renoncer à traduire et de conserver le terme mortgage dans la version française d'un texte de loi. Cette solution, au moins, offre l'avantage d'assurer le parallélisme juridique et linguistique de l'institution désignée dans les deux versions législatives et, encore une fois, d'éviter toute confusion [...]. Par ailleurs, quand on traduit le terme mortgage par hypothèque, on ne traduit rien du tout! Dans ce cas, la transposition juridique que doit opérer la traduction est fallacieuse. Le raisonnement risque d'être erroné si la précision des termes et la stabilité des rapports reliant les termes aux concepts juridiques ne sont pas assurées." (Lauzière, 1979: 113). It is worthy of note that in the final Spanish version of the Final Act and International Convention on Maritime Liens and Mortgages, the proposal made by the Mexican delegation in order to include the definition of the complex term hipoteca naval was not taken into account (Gabaldón, 1996: 3729) but it was decided that this concept would be expressed in its general form.
    After the paper had been prepared by the Secretariats of the UNCTAD and the IMO in April 1987, it was decided that, in the particular case of the document we are dealing with, the English term mortgage should be understood as a means of financing vessels. This legal concept does not imply the transfer of the vessel's title nor the right to possess it,but it grants the owner of the claim the right to act as a secured creditor.
    From the above, we can conclude that the text of the document Final Act and International Convention on Maritime Liens and Mortgages should be more explicit in defining the term mortgage of the English text as always referring to the ship's mortgage and, therefore, translate it into Spanish as hipoteca naval, which is opposed to the hipoteca legal privilegiada. On the one hand, in the case of Spain, the concept of hipoteca naval goes back to the Ley de la Hipoteca Naval dated 1893 and, by extension, to many other Spanish-speaking countries. On the other hand, in Anglo-Saxon countries the concept of ship's mortgage goes back to the 1894 Merchant Navy Act and in French-speaking countries, the concept of hypothèque maritime has its historical roots in the Loi sur l'Hypothèque Maritime dating from 1885.
    Finally, it should be emphasized that international documents in general, and international maritime law documents in particular, show that equivalence is not an isolated translation strategy. However, the question might be raised as to whether this equivalence is not, in most cases, the result of a politically motivated desire to reach an agreement regarding a terminological issue rather than the result of a genuine juridical and linguistic operation.