The Study Of A Third-party Possessory Lien

According to Chinese and English cases,the Maritime Code of PRC and the Civil Code of PRC,some issues of possessory lien arisen from disputes of international carriage of goods by sea can be extracted theoretically.In this paper,the existence of the possessory lien exercised by a third party and its expressive forms are investigated,and the constituent elements and principle of validity can thus be studied out.A total of four categories and twenty situations of the third-party possessory lien are listed,some of which are introduced from relevant typical cases.In some certain cases where a third-party possessory lien can be constituted but cannot be determined as having legal effect,the court shall resolve disputes by exhausting all legal means and reallocate interests of both parties by confirming their rights,instead of simply pushing those cases out of jurisdiction.Chapter One introduces the meaning of the third-party possessory lien,sorts out various situations of its usage,reviews relevant references at home and abroad and states the innovation of this paper.Chapter Two puts forward the basis for judging the effectiveness of the third-party possessory lien.According to the principle of "if there is a law,follow the law;if there is no law,follow the legal principle",the principle of fairness,dedication,and non-dual payment should be used in the absence of laws and regulations.In addition,the method of assignment analysis could be used to score the effectiveness of the third-party possessory lien according to different situations.Chapter Three studies ten situations of the possessory lien exercised by a third party:1.When a liner transportation is organized by NVOCC,and the NVOCC and shipping carrier come to an agreement that the goods can be delivered directly to the consignee,then the shipping carrier can executive the possessory lien on goods against the consignee or the holder of house B/L in the absence of NVOCC.2.When a liner transportation is organized by NVOCC,and the NVOCC and shipping carrier come to an agreement that the goods can be delivered separately or by exchanging documents,then the shipping carrier can executive the possessory lien on goods against the consignee or the holder of house B/L in the absence of NVOCC.3.When a liner transportation is organized by NVOCC,the shipping carrier can executive the possessory lien on freight payable at destination against the consignee in the absence of NVOCC.4.When a liner transportation is organized by NVOCC,the shipping carrier can executive the possessory lien on freight prepaid against the consignee in the absence of NVOCC.5.Under the voyage charter party,if the ship owner has not received the freight or rent,he can executive the possessory lien on goods in accordance with terms of lien in charter party.6.Under the voyage charter party,if the ship owner has not received the demurrage charges at the port of discharge,he can executive the possessory lien on goods in accordance with terms of lien in charter party..7.Under the voyage charter party,if the ship owner has not received charges such as dead freight or demurrage charges at the port of loading,he can executive the possessory lien on goods in accordance with terms of lien in charter party.8.Under the voyage charter party,if the ship owner has not received the freight,he can executive the possessory lien on subletting income in accordance with terms of lien in charter party.9.Under the voyage charter party,if the ship owner has not received the freight,he can executive the possessory lien on transport documents in accordance with terms of lien in charter party.10.Under the time charter party,if the charterer has not received the total subletting freight or subletting rent,he can executive the possessory lien on goods.Chapter Three studies the establishment and validity of the above various situations.Chapter Four studies the situation of the port operator acting as a third party to executive the possessory lien.The chapter can be divided into five sections.Section One studies the parties under the contract of operation of goods at port.Section Two analyzes the reasons of the port operator to executive the possessory lien.Section Three sorts out the situations of port operator to executive the third-party possessory lien.Section Four studies the establishment requirements to executive the third-party possessory lien.Section Five studies the validity of various port operators to executive the third-party possessory lien.Chapter Four studies six situations of the possessory lien exercised by a third party:1.If the overdue storage fee is caused by the delayed arrival of ship owner,then the port operator at port of loading can executive the possessory lien on goods in the absence of charterer.2.If the port charges are owed by the charterer,then the port operator at port of loading can executive the possessory lien on goods which have been loaded on vessel in the absence of charterer.3.If the overdue storage fees are caused by the carrier’s dropping boxes at the loading port,then the port operator at port of loading can ask the carrier for the overdue storage fee and executive the possessory lien on vessel in the absence of shipper.4.If the charterer has promised the port operator at port of discharge to pay the port charges,then the consignee can act as the buyer of the original trade contract in the absence of charterer.5.If the charterer has promised the port operator at port of discharge to pay the port charges,then the consignee can act as the ultimate buyer of the resale in the absence of charterer.6.The port operator at port of discharge executive the possessory lien on goods of consignee for the overdue storage fees.Chapter Five studies the situation of the rescuer to executive the possessory lien.The chapter can be divided into six sections.Section One studies the rescuer’s possessory lien empowered by the Maritime Code of PRC.Section Two studies the influence of the establishment of the salvage contract on the possessory lien.Section Three studies the goods owner’s obligation of payment without emergency agency.Section Four studies the goods owner’s obligation of payment under the contract of domestic carriage of goods by sea.Section Five studies the establishment of the rescuer’s possessory lien on rescued goods.Section Six studies the validity of the rescuer to executive the possessory lien.Chapter Five has studied two kinds of possessory liens exercised by a third party.One is the rescuer’s possessory lien on goods under the domestic carriage of goods by sea,and the other is the rescuer’s possessory lien on rescued goods under the situation where the master has not been empowered the emergency agency in the applicable law,Chapter Six studies the situation of the ship repairer to executive the possessory lien and can be divided into two sections.The chapter studies the situation of executiving the possessory lien on goods and on fuel oil incidentally from the aspect of establishment and validity respectively.Chapter Seven first allocates the proportion of the factors affecting the effectiveness of the third-party possessory lien according to the expert evaluation method,and then assigns values to these influencing factors in combination with each specific situation to calculate the effectiveness value of the third-party possessory lien in each situation.Chapter Eight summarizes various situations of third-party possessory liens mentioned above,and puts forward the prospect of future work.According to each typical situation of the possessory lien exercised by a third party,this paper uses the method of assignment analysis in management and take the effectiveness into consideration to score the the result of the possessory lien.When the creditor sees the corresponding reference score,he can pre-calculate the result of the possessory lien,and then consider whether the implementation of the possessory lien is the best strategy.When the obligor sees the corresponding reference score,he can also judge in advance whether it is worth questioning the other party’s possessory lien.