What are the contents of maritime lien?

Where a ship carrying more than 2,000 tons of bulk cargo oil holds a valid certificate to prove that it has carried out civil liability insurance for oil pollution damage or has corresponding financial guarantee, the claim for compensation for oil pollution damage caused by it does not fall within the scope specified in Item (5) of the preceding paragraph. China's Maritime Law stipulates the above five kinds of maritime liens, as follows: 1. The definition of captain and crew working on a ship is that the crew certificate they hold not only has the orders of the owner (or bareboat charterer, etc.). ) Hire him to work on the ship, and the starting time of boarding work issued by the captain on his seaman's certificate (note: when leaving the ship, the captain should also issue the departure time). Captain and crew members who do not meet the above two conditions cannot be defined as "crew members" who enjoy maritime lien even if they help with some temporary work on board. There are two explanations about "other people working on board". The first type refers to the crew members who also hold seamen's certificates, but do not hold any technical positions on board, such as shipowners' representatives; The second type refers to those who are assigned by the shipowner to do some temporary maintenance work on the ship, although they don't have a seaman's certificate. These people can't sail with the ship, they can only leave the ship after it is repaired and before it sails. The author believes that the first explanation can accurately reflect the meaning of the word "under construction", while the second explanation shows that these people are not "under construction of ships" but "under construction of companies". Because no matter which port the ship goes to, the captain should make a list of the crew of the "on board" personnel, report it to the local immigration bureau, and call the frontier inspection station in China. In addition, because the second kind of person does not go to sea with the ship, there will be no repatriation expenses, so it can be logically concluded that the "on-the-job" person refers to the first kind of person. 2. There is a wide range of casualties in the operation of the ship. The "personal" here is not limited to passengers, so the captain, sailors, passengers, people who saw me off, customs officers who boarded the ship on business, public security police, ship surveyors, notaries and pilots who boarded the ship on business are all included. It should be noted that the infringement dispute caused by ship collision ranks fifth, but if there are both property losses and casualties in the infringement damage, the casualties rank second and the property losses rank fifth. 3. Port fees such as tonnage tax, pilotage fee and port fee mainly refer to administrative fees, that is, benefits collected by the state, rather than fees to be paid for ship operation. For example, the loading and unloading fee of a ship in the port is a kind of fee that must be paid for the operation of the ship. However, because the port charges in China are generally set by the Ministry of Communications, it has been nearly 30 years since China's Constitution decided to govern the country according to law, and the port charges for ships and goods in China are still very confusing. For example, in 1990, the Measures for the Revenue and Expenditure of Port Fees promulgated by the Ministry of Finance and the Ministry of Communications stipulated that the port fees of goods were collected by the Port Authority, which were mainly used for the maintenance of port anchorage and waterway. However, Article 31 of "People's Republic of China (PRC) Port Charges Rules" promulgated by Ministry of Communications 200 1 stipulates that the port management department shall return 50% of the port charges to the port operators after collecting them. The right of an enterprise as a legal person to charge administrative fees will lead people to be confused about the nature of this fee, and it is impossible to determine whether this fee should enjoy maritime lien. In order to encourage salvage activities and reduce personal and property losses, the state has included salvage expenses in maritime liens. Assistance includes contract assistance and negotiorum gestio assistance. Because the maritime law does not clearly stipulate that these two kinds of salvage should be treated differently, the maritime lien can include these two kinds of salvage. However, the author believes that the salvage contract should not enjoy the maritime lien, because it is a mutual agreement between the parties and is voluntary, so the creditor's rights arising from the salvage contract should not take precedence over the creditor's rights enjoyed by a third party other than the maritime lien. In addition, among the five claims of maritime lien, except the first claim for wages is based on the labor contract between the crew and the shipowner, the other four claims are not based on the contract, which conforms to the legislative logic of this article. 5. The concept of claim for property compensation arising from the infringement of operating ships is all-encompassing. There are many types of ship infringement, such as collision between ships, collision between ships and navigation marks or lighthouses, collision between ships and docks, collision between ships and mariculture, sea pollution caused by oil leakage from ships, and death of fish and shrimp raised by fishermen. Relative objects or pollutants that collide with ships belong to property losses caused by tort. These losses also include casualties, but casualties have been included in the second item of maritime lien to be adjusted, so casualties and property losses in the same accident should be treated separately. 6. If a ship carrying more than 2,000 tons of bulk cargo oil holds a valid certificate to prove that it has carried out civil liability insurance for oil pollution damage or has corresponding financial guarantee, the claim for compensation for oil pollution damage caused by it does not fall within the scope specified in Item (5) of the preceding paragraph. This provision is very clear, that is, ships carrying more than 2000 tons of bulk cargo oil do not enjoy maritime lien. However, if the ship carrying 2,000 tons of "below" bulk cargo oil fails to apply for civil liability insurance for oil pollution damage or has corresponding financial guarantee, other types of non-oil tankers cannot shirk their claims for compensation for oil pollution damage and should be adjusted according to the above item 5, that is, oil pollution victims can enjoy the maritime lien according to this article. (2) The object of maritime lien 1. There is no separate clause about the object of maritime lien in China's Maritime Code. Only in the concept of maritime lien in Article 2 1, it is explained that the object of maritime lien is "the ship that gives rise to maritime claims". Because the concept of ship is not explained in the chapter of maritime lien, we should refer to the systematic interpretation method of civil law hermeneutics and apply the concept of ship in the General Principles of Maritime Law. Article 3 of the General Principles of Maritime Law stipulates: "The ship mentioned in the preceding paragraph includes the accessories of the ship." According to this provision, we can infer that the concept of ship in Article 2 1 refers to the concept in Article 3 of the General Provisions. Therefore, the obligee who enjoys maritime lien can only exercise this right against the ship and its appendages, but not against other ships owned by the shipowner. 2. In China's maritime law theorists and even maritime judicial circles, many people think that the ship referred to by maritime lien includes not only accessories, but also freight, general average compensation and salvage reward for the same voyage. The author thinks that this is only a theoretical study and has no legal basis in China. The author finds that these contents are indeed included in the Maritime Code of Taiwan Province Province, and there are separate clauses. For example, Article 24 of the Maritime Code of Taiwan Province Province stipulates that the objects of maritime lien are arranged as follows: (1) ships, ship equipment and accessories or their wrecks; (2) Freight during the voyage in which the priority occurs; (3) The compensation that the shipowner should get for the damage to the ship or the loss of freight during this voyage; (4) The shipowner's compensation for general average; (5) Salvage remuneration of the shipowner before the end of the voyage. The wreck in the first item above includes the wreck of a ship that caught fire or sank. Freight, general average compensation, salvage expenses and other matters are simple and clear, and need not be explained. What needs to be emphasized is that because China's maritime law does not adopt this legislative example, it is impossible to adopt "takenism" and arbitrarily expand the concept of ship in China's maritime law. 3. There is a more important object that needs to be emphasized, that is, the compensation for ship damage referred to in Item 3 of Article 24 of the Maritime Code of Taiwan Province Province. The "due compensation" referred to in this article mainly refers to the damages caused by the accidental collision with other ships, excluding insurance compensation, such as insurance compensation after the loss of the ship and insurance compensation for the partial loss of the ship. According to the provisions of China's maritime law, the maritime lien disappears with the loss of the ship. However, the insurance compensation is closely related to the ship, and whether the insurance compensation can be used as the object of maritime lien is a legal issue worthy of study. According to the maritime law that the mortgage of a ship can be extended to ship insurance compensation, it seems that the maritime lien should also be extended to ship insurance compensation. "People's Republic of China (PRC) Maritime Law" stipulates in Article 31 of the revised draft "Suggestions for amendment, legislative examples and explanations": "The effectiveness of maritime lien does not extend to insurance compensation or other subrogation claims for loss or damage of the ship." According to this provision, the maritime lien does not extend to insurance claims. This provision adopts the legislative example of maritime law in Taiwan Province. But in shipping practice, profit is the main purpose of market economy. If the shipowner estimates that the income from the auction of the ship is almost equal to the maritime lien, the shipowner is likely to take the form of sinking or arson in exchange for insurance compensation, thus avoiding the legal debt set by the maritime lien. The subject who enjoys the maritime lien can only realize his creditor's rights by applying to the court to seal up the insurance premium, but he has lost the maritime lien and can only share this part of the insurance compensation with other creditors. Editor's recommendation: What is maritime lien? What are the steps for notifying maritime liens? Theoretical analysis of maritime lien