Study On Some Problems Of Ship Mortgage

Since 20th century, ships are gradully and modenized.To sustain and promote the development of shipping, a large amount of funds is required. Usually, a ship company can't afford to buy a ship with its current funds, so the shipowner needs to borrow money form the banks or other capital markets. According to the special nature of ship and on the basis of ship credit system, many countries have established the system for ship mortgage, following the practice of the mortgage of real estate. The right of mortgage can be instituted on the ship, and should be registered in the designated authority for public notification. Therefore, the mortgage of a ship should not only comply with the general rules on the right of mortgage in the civil law, but also be specified according to the character of ship and to the requirements of shipping practice.The legislation of ship mortgage in China exists some incorrect and imperfect provisions, especially in the imperfection of the legal system and the concrete stipulation of some articles. It is necessary to clarify some problems on the mortgage of ship.This paper consists of five chapters.In chapter 1,the author summarizes the ship mortgage and introduces the conception, character, object, establishment of the ship mortgage. Because different laws make different stipulation, the chapter focus on the object of the ship mortgage. And the conclusion is that in addition to the traditional mortgaged ship, the freight and rent should also be included.In accordance with the subrogation on things of the right of mortgage of a ship, the indemnity compensation and the general average claimed against the beneficial, and the salvage rewards claimed against the ship owner, should be embraced in the object-matter of the right of ship mortgage .In chapter 2,the author describes the registration system of ship mortgage.The Real Law further clarify that the registration of ship mortgate adopts the doctrine of against by registration. After the comparison and contrast of effects of the two registration doctrines,the author thinks high of the doctrine of against by registration. At the same time,the author points out that China should establish the request system of registration of the ship mortgage.In chapter 3 ,the author focuses on limitation of priority of claim, one of the main features of the right of ship mortgage.The author describes compensation order between the ship mortgage and the priority of maritime lien,between ship mortgage and the possessive lien of ship, as well as between the ship mortgage and the charterparty by demise.In chapter 4,the author describes the problems of the transfer of mortgaged ship.To realize the economic value of the ship,it is unreasonable to limit the ship transference. At the same time, to protect the proper right of the transferee to acquire a clear ownership, it is necessary to entitle the transferee to compensate the debts or take part in the auction of the ship.In the future, the Maritime code should maintain consistency with the Real Law and reduces restrictions on the transfer of mortgaged ship.In chapter 5,the author introduces the special object of mortgaged ship-the vessel under constuction.It exists some difference in the aspects of the conception, subject, object, registration and implement.This chapter focus on the implement of the vessel under construction and hopes to search another way to achieve security except the traditional way.