On Maritime Liens Exercise

Abstract Maritime lien, a peculiar system in maritime law, is of great importance to guarantee the benefit of maritime claim. However a lot of problems have arose in the judicial practice and relevant legal regulations. This article will do some analysis on this, the structure as following: Preface The preface explains the two guiding principles in selection of topics. First, the maritime lien is a legal system of promoting the development of the shipping industry, and guaranteeing the public welfare and some special maritime claims; secondly, there are still some problems on how to perform the right, to which the law can not offer the solutions as yet. Chapter 1 Legal characteristics and natures of maritime liens. The character and nature of maritime liens are fundamental to understand the performing of the maritime lien. This chapter is divided into two parts. The first part enumerates the five views on the nature of maritime lien, pointing out that maritime liens should be analyzed under the relative legal background because the development of maritime liens is closely related with a country抯 legal system. Under the Anglo-America legal system, the maritime lien has multi-nature, It is not only the procedure right but the substantial right. While under the Continental legal system, a maritime lien is provided as a real right for security in substantial law. From the point of view of Maritime Code of PRC, a maritime lien is treated as a real right for security in substantial law, but it does not fit to the principle of absoluteness and public summons, so it is a particular real right for security. Based on the aforesaid statements, the article will analyze the legal characteristics of the maritime lien from nine perspectives: 1. Legal right. From the direction of legality, every right should be preset or not be forbidden by the law, and the maritime lien so does; from the production of a detailed maritime lien, it deed not the agent concerned to agree -5- on. once the legal maritime claims being entitled to maritime liens occur, the maritime liens will occur. 2. Priority right. The maritime right rank the first in all the guaranteed property rights, and at the same time, has the repelling character between different maritime claims guaranteed by maritime liens. Meantime they are embodied relative equality under the same kind maritime claims. 3. Secondary right. A maritime lien as the guaranteed property right, belongs to the particular maritime claims when they are coming into existence, extinguishing and disposing. 4. Right not indelible. Once A maritime lien exists, no mailer who owns the ship and no matter where ship sails, the maritime lien always accompanies it. 5. Right against property. No matter from the view of its object, tracing back, the guaranteed obligation of the owner and provisions in the article 23and25 of the Maritime Procedure Law of PRC, a maritime lien in MCPRC is a right against property; 6. Indivisible right. A maritime lien effects the whole object and the whole guaranteed maritime claim. 7. Highly rely on the judicial procedure. In Anglo-America legal system, the exercising of a maritime lien is melted with action in rem. In China, the Maritime Code of PRC provides clearly th...