Maritime lien

1. The definition of a captain and crew working on a ship is that the crew certificate he holds not only has the orders of the owner (or bareboat charterer, etc.). ) to hire him to work on the ship, there must also be the start time of boarding work issued by the captain on his seaman's certificate (note: the departure time should also be issued when the captain leaves the ship). 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 has to make a list of the people on board and report it to the local immigration bureau, which is called 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.

Legal basis:

Article 22 of People's Republic of China (PRC) Maritime Law The following maritime claims have maritime liens:

(1) The right to claim wages, other labor remuneration, crew repatriation expenses and social insurance fees to the captain, crew members and other crew members on board according to labor laws, administrative regulations or labor contracts;

(2) Claims for personal injury or death in the operation of the ship;

(3) Requests for payment of tonnage tax, pilotage fee, port fee and other port fees;

(4) requesting the payment of salvage money at sea;

(5) Claims for property compensation arising from infringement in ship operation.

Derivative problem:

What is the order of compensation for maritime liens?

The order of repayment of maritime lien refers to the order of creditor's rights secured by maritime lien in the process of repayment. Generally speaking, the litigation expenses paid for exercising the maritime lien, the preservation, auction and distribution of the ship price, and other expenses paid for the benefit of the claimant shall be deducted from the ship price first. According to the provisions of China's Maritime Law, maritime lien precedes maritime lien and mortgage.