On The Shipping Carrier's Lien

Ocean carriers' rights of lien are known as the method of security for their claim due under the charter-party or bill of lading contracts. Such lien can be obtained by express regulations or rules of law and express agreement between contractual parties. In our country, the provisions as to lien are included in General Principles of the Civil Law, Contract Law, Guarantee Law, Judicial Interpretation of the Supreme People's Court on Some Issues Regarding the Application of Security Law, Maritime Code, Domestic Waterway Transport Rules and the Real Right Law recently enacted, which are not specific and subject to improve. Especially, the ocean carriers' rights of lien included in the Maritime Code of the P.R.C cannot execute in practice well enough and also unable to play their natural role.In view of the situation above, the author attempts to study the other countries' system of lien, especially the system of ocean carriers' rights of lien under English law. Through these studying, the author attempts to find the practical basis for understanding and perfecting the ocean carriers' rights of lien in our country. In English law, the ocean carriers' rights of lien are separated into common law lien and contractual lien. And the contractual lien can be created on the cargos and sub-freight by the contract. Under English laws, the ocean carriers have a very wide lien over the cargo under bill of lading for the sums due. The lien can be easily created by the contract terms against bill of lading holder disregarding that they are not personally under an obligation to pay the sum according to the terms of bill of lading, as long as bill of lading contains no terms which is inconsistent with the claim of the lien, which is a matter of construction of bill of lading contract as a whole. This kind of lien created by contract is widely accepted by the cases at English courts.At the same time, the method of the legislation in our country is statute law. We have to pay attention that the case law in English is not valid in our country. Thus, the author tries to study and learn from the relevant system in Civil Law countries as they also adopt the statute law for their method of the legislation. Through the analysis of the various Civil Law countries' methods, the author finds that the Civil Law countries adopted separating civil law and commercial law generally introduce system of priority to implement the function of the ocean carriers' rights of lien with system of lien.Comparing with foreign laws, the author indicates that the Article 87 of P.R.C. Maritime Code is unreasonable, and expounds that cargo's ownership shall not be the condition of ocean carriage's characters and the interest balance between the carrier and consignee. On the premise of learning from the ocean carriers' rights of lien under English law, the author suggests that the legislation of priority should be established and perfected so as to protect the ocean carriers' relevant rights and interests.