Research On The Shipowner’s Lien On Earnings From The Sub-charters Under Chinese Law

In the field of international shipping transportation, chartering business is the most common business in practice. Majorities of shipping companies are not actually involved in the actual transportation but only obtain profits from operating the charter business. Therefore, freight or hire from chartering business has become a major source of income of the shipping company. Especially in the case of time charter, hire is the strictest obligations which must be fully paid on time. In general, when the shipowner encounters delay in hire payment, he may exercise the lien on cargo on board or withdraw the vessel as a response to the charterer’s delay in hire payment. However these responses are not very prudential and may cost lost to shipowner as well. The fundamental purpose for shipowner is only to collect the payable hire to sustain its operation. Though keeping the lien on cargo may cast stress to the charterer, it may not help the shipowner to achieve in collecting the hire. Accordingly, if the shipowner withdraw the vessel when in a chartering marketdownturn, it may cost much greater lost to shipowner. Thus, exercising lien on subfreight is a necessary means in the chartering operation. I originally tried to learn the lien on subfreight in shipping practice in China where Clause 141 of Maritime Code entitles the shipowner rights of lien on subfreight. However, compared with the lien of civil law, sublease income of so-called "lien" also has its own characteristics, subfreight as a future earnings, generally cannot achieve possession, even if realized possession, money"that holds all" of it is difficult to determine the specific nature of the establishment of a lien on it, this also means that in terms of British law or in the Chinese law is difficult to be "retained." Upon inquiry, the author of books and case information, decided to conduct research as a thesis.The first chapter mainly concentrates on the difference between the nature of the lien on subfreight under Article 141 of Maritime Code and the nature of lien under of the Civil Code. According to the author, "maritime" concept lien on earnings from the sub-charter, summarized earning from the sub-charter lien established elements, combined with the lien of the civil law and the establishment of the elements on the concept of analysis and comparison, drawn nature lien, whether elements such as the possession of the two do not match, Article 141 of Maritime Code dose not earnings from the sub-charter lien on the concept of civil law in China. This is the question raised in this paper, namely why not sublease income lien lien on the civil law, and thus leads to the right kind of civil law since it does not belong on the lien, then it is a. Chapter II Article III are around this issue for analysis.The second chapter mainly focuses on the nature of lien on subfreight and lien under English law. Although the lien provided in NYPE 46 is also use this wording, however, lien on subfreight shall not be deemed as lien but transfer of equity under English law. The third chapter mainly focuses on the nature of the lien on earnings from sub-charters under Article 141 of Maritime Law. First, the author summarizes the current academic major theories about the nature of the lien on earnings from sub-charters, the theory of assignment of creditor’s rights, the theory of lien, the theory of priority right and the theory of right of subrogation and analyzes the similarities and differences between the elements. Secondly, the author uses the perspective of comparative law, compared analyzes the lien on subfreight on the English law and the lien on earnings from sub-charters for reference. Finally, the author tries to determine a definition for the lien on earnings from sub-charters under Article 141 of Maritime Law. The author hold the opinion that, When the earnings from sub-charters is not paid by the sub-charter to the lessee or the captain, the nature of which is more similar to the right of subrogation. When the earnings fromsub-charters has been paid from the sub-charter to the captain, the nature of which is more similar to the set-off rights under Contract Law. When the earnings from sub-charters has been paid to the lessee, such right cannot exercised. It is the core issue under this paper, which also specifies the direction for the follow-up study.The fourth chapter through a lot of references and analysis of the lien on earnings from sub-charters under English law to analyze the case of freight in the international shipping practice, the owner how to effectively exercise such lien right and the difficulties existing in the process of the exercise, the dilemma lessee and the sub-lessee faced and how to respond. The most important thing is to explore the judges of the "lien" attitude from the judgment. After retrieved Article 141 of Chinese Maritime Law,the author found that the lien on earnings from sub-charters used very rarely in practice. The author analyzes such terms from the practical point of view and propose practical methods can hope can be used in practice, and will not make that clause aerial tower.The fifth chapter is the continuing of the fourth chapter, and advises on the perfection of the legal system on the Article 141 of the Maritime Law, so that the Article 141 could be more feasible in practice and broaden the exercise of Article 141 of the path. Of course, there is still a lot to improve the system and imperfections, pending more research expert added.