Applicable Law To Ship Mortgage

Besides introduction and the Epilog, the dissertation contains seven chapters.The introduction explains the meaning ,methods of the study of applicable law to ship mortgage and the planned contents to get through. The system of ship mortgage in different countries is different, related law conflicts are very complex. It cannot be resolved by the simply conflict rule " ship mortgage apply the flag law". According to the principle of subject relativity, to compare related regulations of typical countries and combine related cases at home and abroad is helpful to make clear the complicated law conflicts and helpful to improve ship financing.Chapter I " General issues of ship mortgage", discussed the definition, the law resource and history of ship mortgage. Ship is personal property, the system of ship mortgage is established not because that it is seen as real property,but it is the demand of financing not transfering possession. There is no uniform definition of ship mortgage in international society, but related regulations of different countries have some common characters, that is, not transfering possession, and preferred right from sale proceeds. There are three doctrines in Civil Law circle about the quality of mortgage, "Right in rem doctrine", "Claim doctrine" and the doctrine between the above two doctrines. The first doctrine is the general opinion. Ship mortgage should be regarded as right in rem, so that it can protect the right of mortgagee better. Compared with mortgage in civil law, ship mortgage is different in its object, establishment and effect. Ship mortgage is also different from the ship preferred maritime lien and possessory lien. According to different standard, ship mortgage can be divided into different classes. There are statutes about ship mortgage not only in civil law countries, but also in common law countries, and international society has codified related conventions. The original form of ship mortgage is bottomry.The creditors of ship mortgage can be protected better than that of bottomry and it is certain that ship mortgage substitute the bottomry.Chapter II "The law conflicts of ship mortgage",explains deeply the law conflicts of its establishment and effect. As far as the subject of establishment is concerned, it is the common practice that trustee or agent become mortgagee, but related legislation of different countries is different. There is not definite regulation inour legislation and resulted confusion in our judicial practice. As for the object, whether it can establish ship mortgage on ship under construction, different nations have different answers.As for method of establishment, there is mainly two doctrine, that is ," ship mortgage is created by registration", and " registration make mortgage effect against third parties".Which is adopted by legislation depends on the law system and law reasoning from the law angle, and it also depends on the economic level. There are two reasons that our current legislation adopted the second doctrine: first, the Right in rem behavior doctrine is not accepted by our current legislation, second, our economic demand towards trade efficiency. As for the effect of establishment, the secured scope of claims, to what property a registered mortgage attach, priority between several mortgages, priority between registered mortgage and a right of retention or maritime liens, the relationship between ship mortgage and ship lease and the enforcement of mortgage have been regulated differently.Chapter IIP'Applicable law to ship mortgage", compared the text of 1926,1967 and 1993 of related convention, the dissertation put forward that the connection point of applicable law to ship mortgage changed from " the country that ship belongs to" to "registration country", but to respond to the situation of several law area in the same country, it argue that the place of registration should substitute the country of registration, so as to increase the certainty of applicable law. Besides, the scope of applicable law changed from "recognition" to "enforcement" , further to "recognition and enforcement", it explains that there exist law conflicts both in "recognition" and "enforcement" of ship mortgage. Also, the 1993 text added to regulation about temporary change of flag. Compared related legislation and judicial practice of typical countries, there exist the difference of " uniform system" and "divided system". This part also read related doctrines by the concept of "time" and "space" and argue the reason of "flag law doctrine". But the flag law cannot resolve all the law conflicts in the mortgage of ship. Its applicable scope is limited, matters related with mortgage deed, the law conflict of ship under construction, the law conflict when ship mortgage is established before or when bareboat charter, the law conflict of preferred maritime liens and the law conflict of receivables assignment cannot be resolved by flag law. The flag of convenience is the choice of ship nationality by ship owners and it constitute law evasion of private international law. But it does notaffect the application of flag law to ship mortgage judged from the object and aim of its evasion.Chapter IV "Applicable law to mortgage on ship under construction",analyzed the law conflicts on its establishment and effect, explained the law applicable to mortgage on ship under construction and the law applicable to registered mortgage when completed, combining the "Convention relating to Registration of Rights in respect of Vessels under Construction, 1967"and its draft. The question whether mortgage on ship under construction belongs to ship mortgage or chattel mortgage has different answers in different countries.Although parties' agreemnent that regulated the ownership of ship under construction generally is recognized, but specific situation is different, besides, if there is not related agreement, the law to suppliment is different. It involved the law conflict of subject of mortgage. The question when mortgagor can establish mortgage also has different answers.all the above law conflict dicided whether mortgage is valid or nor.further, the different regulations about the scope of objects and the way to effect mortgage decided whether and to what extent that the right of mortgagee can be met. Accordingly, the international society codified "Convention relating to Registration of Rights in respect of Vessels under Construction, 1967", compared with its Stockholm draft, it has some different contents.To compared the two texts is helpful to create the conflict rule of mortgage of ship under construction.Chapter V "Bareboat charter and the applicable law to ship mortgage", explained the concept and meaning of bareboat charter, introduced typical bareboat charter registration systems and explained the effect of bareboat charter registration, mainly analyzed what bareboat charter registration will affect the applicable law to registered ship mortgage,combining the Chinese court case. The bareboat charter registration is the change registration of ship nationality, the registration of registered ship mortgage remained valid, accordingly, the nationality and registration is separated, primary registration and second registration coexist. This makes the question of applicable law to the recognition and enforcement of registered ship mortgage very common, it decided whether the interests of mortgagee can be met. The part study the problem deeply, combining our court case.Chapter VI "Applicable law to preferred maritime liens and ship mortgage", explained the different meaning between preferred maritime liens and maritime liens.put forward the relation between applicable law to preferred maritime liens and ship mortgage. Mainly discussed the law conflicts of ship liens and its resolution. There are mainly three kinds of legislation or judicial practice, that is the "lex fori " in England, the "divided system" in the United States and the "flag law" in Greece.The difference resulted from the different recognition toward the quality of preferred maritime liens: it is procedual right or substantive right? It is right in rem or claim?This dissertation argue that it is right in rem, not only to protect the interests of the right holders, or from the angle of the way to effect preferred maritime liens or from the words that related convention used. Further, this dissertation combined the conflict rule" right in rem apply the law of the place the thing situated" and the doctrine of the most connected relationship, created specific applicable law to preferred maritime liens.Chapter VD "Applicable law to receivables assignment and ship mortgage", explained the meaning, legal relationship of receivables assignment and the relation of applicable law to receivables assignment and ship mortgage, mainly combined Chapter V of the "United Nations Convention on the Assignment of Receivables in International Trade " and Article 12 of the "Convention on the Law Applicable to Contractual Obligations", analyzed the conflict rules of receivables assignment specifically, "priority apply the law where the assignor situated" is the most successful point of the first convention, also make it more progressive that the second convention.Besides, the regulation about the conflict rules of the effect of assignment, the relationship between assignor and assignee, and the relationship between assignee and debtor can be adopted purposely by our legislation.At the end, from the determination or flexibility of the value orientation of private international law, this dissertation argued to establish the system of conflict rules of ship mortgage and put forward some specific legislative suggestions.