Comparative Study Of Functionalism In Respect Of Lien On Cargo

Lien on cargo is a very important issue in Maritime Legal system. Under Chinese Maritime Code (called "CMC" below), Art 87(Carrier's Lien), ArtHl (shipowner's Lien), Artl61(Tugowner's Lien) and Artl88(Salvor's Lien) are normally thought to give a creditor a lien on cargo. And Art88 is a provision for a creditor to exercise his lien. Art 87 of CMC applies to a "contract of goods by sea", such as a bill of lading or voyage charter. It reads: "If the freight, contribution in general average, demurrage to be paid to the carrier and other necessary charges paid by the carrier on behalf of the owner of the goods as well as other charges to be paid to the carrier have not been paid in full, nor has appropriate security been given, the carrier may have a lien, to a reasonable extent, on the goods. " In practice, the question is whether the carrier can detain the goods which belong to the third party consignee or holder of bill of lading according to this article. There seems no answer in CMC, thus we can conclude that in relation to the concept of "lien on cargo" under CMC, its nature, effect, requirements, enforcement and so on haven't been established well enough. There is even no judicial explanation in this regard because of the lack of legislative skill. So this article tries to find a good method to make a reasonable answer for these questions and to establish a "true concept" of lien on cargo which fits CMC.Since most of the concepts of CMC are selected from international conventions and famous standard contracts, many provisions of CMC have their own meanings which are different from the same concepts of Chinese Civil Law. Thus, it gives us a good clue to find the real meaning of the concept of "lien on cargo" of CMC. Then we can take a proper explanation by resorting back to English law, which is called "Method of Explanation by returning to the origin". Compared with English Law, the debts secured by Art87 of CMC are too extensive, thus neither English nor continental legal system can be used to properly explain such questions as discussed above.Fortunately, in this respect we find the difference between the English Law and Chinese Law. That means we find the original function of "lien on cargo". Next, this article uses the " method of functionalism comparison " to study different "liens" under continental legal system and then chooses the best program-to establish our own concept of "lien on cargo". In conclusion, the scheme recommended by this article is "hypothec over goods" and "possessory lien on cargo" which jointly secure the shipowner's (or carrier's) debts under Charters or Bills of Lading.