On Maritime Liens And Related Rights

Although maritime lien is named differently in different countries, it remains one of the most unique legal systems of maritime law both in material law and procedural law. But in China, there is little systematical study in maritime lien and even misinterpretation in some articles related to maritime lien in judicial practice because the Maritime Code was promulgated very late. Hereby the author try to discuss the maritime lien by comparing with other rights concerned, through which the author also give some advice or suggestion on some questions.Chapter one focuses on the nature of maritime lien because it is the key to discussing the relationship between maritime lien and other rights concerned. First, the author introduces the current study situation and different legislation foundation of maritime lien in different countries, and then expounds that it is a real right for security from different perspectives and further demonstrates the characteristics of it.In chapter two, the author studies the maritime claims secured by maritime lien, from its nature to specific discussion of every maritime claims, and draws some conclusions. Finally the attention is paid to the study of relationship between enforcement of maritime lien and enforcement of maritime claims secured by maritime liens.Considering there has been so much study in the balancing of maritime lien and maritime mortgage, the author tries to study this subject from the aspect of the maritime mortgagees' self-protection, i.e. the mortgagees' insurance, in chapter three.By introducing lien of other legal systems, especially of the English law together with their differences and the analyzing of the related provisions of lien under Chinese law in chapter four, the author points out the limitations of the scope of possessory lien in CMC and that the scope should be expanded. Meanwhile, some advice is also given on how to protect the lienee's interests when the vessel is on judicial sale. In the last section of this chapter the author analyzes the priority of maritime lien and possessory lien and points out it is irrational to prescribe that the possessory lienee, especially the ship repairer,shall be compensated after the maritime lienee in CMC, and insists that the reasonable repair fees be deducted firstly.In chapter five procedures of enforcement of maritime lien in foreign countries is introduced first, then a definition of arrest is given by the author. The last section centered on the re-arrest of ship and multiple arrest of ship, holding that multiple arrest should be permitted and also application of multiple arrest based on different maritime claims should be permitted. Finally different legislations in respect to specific procedures of multiple arrest are introduced for reference.In chapter six, a comparison between maritime lien and limitation of liability for maritime claims is followed by illustration on the limitation fund. After analyzing the ranking of maritime claims without constituting a limitation fund, the author put forward that there would be no conflict in between if only the law provides that the constitution of a limitation fund is the precondition of entitling of limitation rights.In the last chapter, the author expounds the conflict between enforcement procedure of maritime lien and bankruptcy procedure in substantive and procedural level. Starting from the point that security real right is the foundation of exemption right, the author suggests that the enforcement procedure of maritime lien should be independent from bankruptcy procedure. The last section illustrate with a specific example ie emphasizing the advantages and necessity of maritime court's jurisdiction.Through the thesis the author try to have a comparative law study on maritime lien and other rights concerned by way of comparative jurisprudence, meantime give some advice with a hope of doing some favor in rethinking of maritime lien and better connection among different legal systems correspondently.