Discussions Of Lien On Marine Goods

Lien on Marine Goods is carrier's right not to deliver but to sell the goods legally possessed under the contract of carriage of goods by sea or according to law when the freight, demurrage and contribution in general average etc. are not paid by the cargo party, and to enjoy priority in compensation with the proceeds of sale of the goods. In our country, the provisions as to lien are included in Civil Code, security law, contract law and maritime code, which are subject to improve. Some of the regulations are not specific, others are inexecutable in practice, which restrict the functioning of lien as a real right for security and increase social cost in exercising this right, thus impacting the circulation and trade of commodities. Therefore, the author believes it necessary to clarify some problems about lien on marine goods.Eight chapters are included in this paper.Chapter I refers to lien's concept. Based on the current laws of our country, it concludes the meaning of lien as well as lien on marine goods.Chapter II makes analysis on properties of lien on marine goods under Article 87 of Maritime Code, based on examples of legislation on lien in various countries. The author holds that there are two properties of lien: one is lien exercised by the carrier when the freight, contribution in general average and other necessary charges which are the other party's obligation to be paid to the carrier are not paid. It is a real right lien, which is a legal real right for security. The other is an obligatory right lien, which is a lien contractually agreed. The carrier exercises lien by detaining goods when the other party's obligatory charges like demurrage are not paid.Chapter III discusses effective conditions of lien on marine goods with real right. The author believes that lien on marine goods becomes effective as long as the following four conditions are met: the carrier legally possesses the goods; the subject matter on lien is the goods transported by the carrier; the debt is associated with the good on lien; liquidation period has expired.Chapter IV investigates obligatory rights secured by lien on marine goods.Chapter V compares two methods of exercising lien on goods. It points out that the shipowner shall compare the advantages anddisadvantages between lien on board and lien on shore before determining proper methods of lien.Chapter VI gives analysis on particular issues about lien on marine goods through lien nomology. The first issue is the two factors generally considered by the carrier in considering whether to accept security provided by the obligor. The second issue is the problem of lien on marine goods when the voyage charterer or the consignee is in charge of discharging the goods. The third issue is whether lien is extinguished with the expiration of litigation period. The fourth issue is whether lien is extinguished if the goods on lien are illegally deprived.Chapter discusses effective conditions of the cesser and lien clause and coexistence principle, as well as lien for demurrage.Chapter analyzes and investigates the application and improvement of Article 88 of Maritime Code. As for the applicable conditionof Article 88 "if the goods .... have not been taken delivery of within 60days from the next day of the ship's arrival at the port of discharge", the author thinks that "ship's arrival" shall be understood as that the ship has arrived at the port of discharge and the goods can actually be discharged. Carrier's lien should be enforced through ruling by the Court to sell the goods by auction. Special procedures should be established for exercising carrier's lien in our country. Application of Article 88 of Maritime Code is limited by exercising lien on goods not taken delivery of at the port ofdischarge. The author suggests to replace "if the goods ......... have notbeen taken delivery of" with "if the charges to be paid to the carrier have not been paid".In this T paper, the author raises a few views about the lien system in our country...