Study On The Port Operator’s Possessory Lien On Goods

In practice, port operators, often executive the possesory lien on goods to ensure that the port operating costs can be achieved. With the development of the shipping industry, the port industry is gradually growing up. In practice, with a significant increase in port dispute, yet China’s legislation on ports was not complete. The "Port Law of PRC" implemented in 2004 is a law specially for port activities, but because of its nature of administrative law, the "Port Law of PRC" has little reference value for port operators’ civil and commercial activities.Since port activities are closely related to cargo transportation, the regulations on transport would have a significant impact on the port operator’s possesory lien on goods. China has promulgated several transport-related laws and regulations, such as "Maritime Law of PRC", "Contract Law of PRC" and "The Regulations on Domestic Carriage of Goods by Water", which all have stipulated the possesory lien on goods. As for possesory lien, the "Real Right Law of PRC" and the "Guarantee Law of PRC" both have systematic provisions on it. Although the legal provisions above have certain regulations on possesory lien, they are not exactly the same, some provisions even conflict with each other. Moreover, since the controversial legal status of port operators, there is still some doubts on how to apply the law to enjoy and exercise a lien. Additionally, the legislation above is not perfect, the uncertainty of law and the complexity of practice, resulting in the risks for port operators when exercising the possessory lien. For port operators, how to correctly apply the law and how to properly exercise a lien, thereby avoiding the risks and secure the debts is a topic worthy of study.Firstly, this paper compares the concepts of port operator in different conventions and our domestic regulations, introduces the concept, nature and legal characteristics of possessory lien, and then briefly analyzes the plight of the port operators in the exercise of possessory lien of goods. Secondly, introduce the relevant legal provisions on the possessory lien, present the controversial practice of the legal status of the port operator, analyze the law shall apply, with the introduction and comments on the theories about port operator’s legal status, and then get the conclusion that the port operators have different legal status when commissioned by different body, and thus different law is applicable. And this paper sorts and summarizes the port operators’legal status and applicable law under various circumstances by way of charts. Thirdly, this paper comprehensively elaborates the relevant elements of the establishment of possesory lien, such as due debts, lawful possession, the object retained, and relations and so on, and then analyzes different requirements on each element according to different laws applied under distinct legal status of port operator. Fourthly, comparatively analyzes the effects arising from the application of different law on the exercise of possessory lien on goods. The last, propose appropriate legislative advises and practical recommendations to solve the problems in the establishment and exercise of port operator’s possessory lien on goods, including making clear the legal status of port operator, regulating the emergency possessory lien, expanding the scope of the object of lien under Maritime Code of PRC, improving cargo port operators’ bona fide acquisition system of possessory lien, narrowing the relations required in commercial lien, and improving certain regulations on possession period in Maritime Law of PRC.