Study Of The Comparative Law Of Maritime Liens

Maritime lien is a kind of right of distinct character among the system of rights, the subject matter of which is maritime properties inclusive of vessels. With the change of social life and the development of ocean transportation, the interest in the maritime industry have been diversified and the conflict of rights caused thereby have been intensified, which highlights the importance of realizing the traditional functions of maritime lien and expanding the same according to circumstances. However, there is no tradition of maritime lien in Chinese jurisdiction. The establishment of present system has been made by transplanting the draft of convention. In order to make a full realization of functions of maritime lien in our legal system, the origins of maritime lien and its operations in other countries should be the subject of knowledge and the final localization of the system of maritime lien should be achieved.Through the summarization, comparison and comment on the system of maritime lien established in the two legal families and pertaining conventions, with the reference to the theories and views in respect of maritime lien, some legal aspects of maritime lien are the subject of the study in this dissertation so that our system of maritime lien can be perfected.Introduction of general principles and methodology of comparative law and relationship between comparative law and maritime lien has been made in Chapter one in which the importance of using comparative law to study maritime lien is revealed, i.e. only if comparison between and reference to the systems of maritime lien in each country have been made can a full knowledge of the system be obtained and can its functions be realized in our judicial practice; only if a reference to other countries' experience, successful or unsuccessful, in transplanting the system of maritime lien has been made can the localization be achieved and can the transplanted system of maritime lien be compatible with our legal system whenwe transplant the same.Historical origins and development of maritime lien is firstly touched in Chapter two in which the following facts are revealed: the system maritime lien, which originated from merchant law codified by commercial custom, came into being independently; influenced by various theories, the system has developed; its present situation is that there is a co-existence of trend of unification of law in respect of maritime law and the demand of localization of the same. Secondly, after the E-C translation of "maritime lien" has been examined, disadvantages of definitive comparative law and advantages of functional comparative law are summarized. In respect of better realization of functions of maritime lien, a proposition is made that the characteristics of vessels as well as maritime lien shall be taken into full consideration during the process of establishment of the system. Thirdly, after the comparison of natures of maritime lien under the two legal families, such a conclusion is drawn that it is sound that the maritime lien in our legal system is defined as one of secured property right. A suggestion is therefore made that the system of privilege should be established in the legislation of property law so that the nature of maritime lien can be made clear in the legislature.The legal relationship of maritime lien is analyzed in respect of subjects in Chapter three, subject matter and items. As far as the subject of maritime lien is concerned, it is pointed out that claimants holding maritime liens may not be subrogated to the compensation payable to the owner of the vessel under an insurance contract. In respect of items of maritime lien, an introduction of recent development in this respect is made and an examination of items in our jurisdiction is also given.In Chapter four, the procedure of enforcing the maritime lien in the common law jurisdiction, i.e. action in rem, is firstly introduced. Illustration of functions of action in rem is made and its shortcomings and improvement are also pointed out, to which a beneficial reference is made when enforcing maritime lien by an action in personam. Secondly, the identification of defendants, arrest of vessels and the nature of action for determining rights is analyzed. The following arguments areput forward: the identification shall be made for convenience of claimant to institute actions; the subject vessel shall be subject to re-arrest in enforcing the maritime lien because the arrest in nature is not conservation measures but a pre-condition to enforce a maritime lien; actions for determining rights in nature is actions for performance, which is focused on proving the existence of maritime lien and who purpose is to obtain satisfaction in priority. Thirdly, in order to strike a balance between the interests of each maritime creditor and do justice among them, a preliminary proposition is made to establish a challenging procedure in which the interested creditors are allowed to challenge other creditors in respect of the existence of credit, the sum of credit and the ranking of satisfaction so that all the disputes in connection with the subject vessel can be resolved in one challenging procedure and the justice is done.