1、海商法 双语 海商法概述I. Definition 概念1. Maritime law is a set of legal rules regulating the maritime transport and ships. 海商法是调整特定的海上运输关系和船舶关系的法律总称。 2. Subject matter 海商法的调整对象* relations arising from maritime transport 海上运输中发生的法律关系i.e. contract, tort and other relations from maritime transport(2) relations a
2、rising from ships 与船舶有关的特定社会关系i.e. legal status of ships, real rights of ships, management of shipsII. Characteristics 海商法的性质* civil law v. commercial law 海商法隶属于民法还是商法* national legislation v. intl law 海商法是国内法还是国际法III. The sources of maritime law 海商法的渊源1. National legislations 国内法 Maritime Code Regu
3、lation on the Registration of Ships2. Intl treaties 国际条约 Intl Convention on Standard of Training, Certificate and Watch-keeping for Seafarers3. Customs 国际惯例 York-Antwerp Rules Intl practice may be applied to matters for which neither the relavent laws of the PRC nor any international treaty conclude
4、d or accede to by the PRC contain any relevant provisions.4. Cases 司法判例Chapter 1 Ships 船舶1.1 Ships in brief船舶概述 Definition(船舶的概念) Legal nature (船舶的法律本质) Nationality of a ship (船舶的国籍)I. Definition 定义* A large craft in which persons and goods may be conveyed on water.广义上是指大型水上航行工具。* Art. 3 of Maritime
5、 Code: Ships means sea-going ships and other mobile units, but does not include ships or craft to be used for military or public service purposes, nor small ships of less than 20 tons gross tonnage. 狭义上的船舶1. sea-going ships and other mobile units (关于海船及其他海上移动式装置)2. ships used for military or public
6、service purposes (用于军事、政府公务的船舶)3. small ships less than 20 tons gross tonnage (20总吨以下的小型船艇)II. Legal nature 船舶的法律本质* Ship is a composition of many parts. (船舶是合成物)* Ships is a personal property, it is sometimes treated as a real property. (船舶是动产,但也有按照不动产处理的情形)3. Ship is a property, it is sometimes pe
7、rsonifized. (船舶是物,但有时也作拟人化处理)III. Nationality of a ship船舶的国籍 1. The importance of a ships nationality船舶国籍的重要性Intl:eg. 1958 Convention on the High SeasNational:eg. transport and towage between the ports of PRC shall be undertaken by ships flying the Chinese flag2. Conditions for the grant of national
8、ity 授予船舶国籍的条件* General provisions 国际法上的一般规定eg. UN Convention on the Law of the Sea: Every State shall fix the conditions for the grant of its nationality to ships, for the registration of ships in its territory, and for the right to fly its flag. There must exist a genuine link between the State and
9、 the ship.Case: Saint Vincent and the Grenadines vs. the Republic of Guinea On Oct 28, 1997, a Guinean patrol boats arrested a ship SAIGA at the southern limit of Guineas exclusive economic zone. The SAIGA is an oil tanker flying the flag of Grenadines. It is owned by a shipping company of Cyprus.(2
10、) PRC Rules 我国的规定 Ships owned by citizens of the PRC whose residences or principal places of business are located within the territory; Ships owned by enterprises with legal person status established under the laws of PRC and whose principal places of business are located within the territory. 3. Fl
11、ag of convenience 方便旗* A flag of convenience ship is one that flies the flag of a country other than the country of ownership.* A flag of convenience country is considered to be a country with what is called an open registry, which makes a business from granting its flags to all kinds of vessels, in
12、cluding fishing vessels, that are owned by nationals from other States. List of flags of convenience countries * Antigua and BarbudaBahamasBarbadosBelizeBermuda (UK)BoliviaBurmaCambodiaCayman IslandsComorosCyprusEquatorial GuineaFrench International Ship Register (FIS)German International Ship Regis
13、ter (GIS)Georgia* Gibraltar (UK)HondurasJamaicaLebanonLiberiaMaltaMarshall Islands (USA)MauritiusMongoliaNetherlands AntillesNorth KoreaPanamaSao Tome and PrncipeSt VincentSri LankaTongaVanuatu 1.2 Real rights of ships 船舶物权* Ownership of ships (船舶所有权)* Mortgage of ships (船舶抵押权)* Maritime liens of sh
14、ips (船舶优先权)* Possessory lien of ships (船舶留置权)I. Ownership of ships 船舶所有权* Definition 概念Art. 7 of Maritime Code: the ship owners right to lawfully possess, utilize, profit from and dispose of the ship in his ownership (船舶所有人依法对其船舶享有占有、使用、收益、处分的权利)2. The acquisition, transference or extinction of the
15、ownership 所有权的取得、转让和消灭(2) transference of the ownership 转让 the time of transference 转让的时间Maritime Code: no provision Real Rights Law: Art. 23(动产物权的设立和转让,自交付时发生效力,但法律另有规定的除外 )Case: Chinese ship breaker vs. US. ship-owner(4) registration of the ownership 所有权登记Art. 9 of Maritime Code: The acquisition,
16、transference or extinction of the ownership shall be registered at the ship registration authorities; no acquisition, transference or extinction of the ships ownership shall act against a third party unless registered. Who is the third party?II. Maritime lien 船舶优先权* Definition 定义 Maritime lien is th
17、e right of the claimant, subject to the provisions of Art. 22, to take priority in compensation against ship-owners, bareboat charters or ship operators with respect to the ship which gave rise to the said claim.2. Characteristics of maritime lien 船舶优先权的特点* Statutory right 法定性* Accessory right 依附性*
18、Secret right 秘密性* Preferred right 优先性3. The items secured by maritime lien 优先权所担保的债权项目(1) Payment claims for wages, other remuneration, crew repatriation and social insurance costs made by the Master, crew members and other members of the complement in accordance with the relevant labor laws, admini
19、strative rules and regulation on labor contracts.(2) Claims in respect of loss of life or personal injury occurred in the operation of the ship.(3) Payment claims for ships tonnage dues, pilotage dues, harbor dues and other port charges.(4) Payment claims for salvage payment.(5) Compensation claims
20、for loss of or damage to property resulting from tortious act in the course of the operation of the ship.4. The priority of maritime lien 优先权的受偿顺序* claims secured by maritime lien vs. non-secured claims 船舶优先权担保的债权与无担保的债权* maritime liens vs. other secured rights (mortgage, possessory lien) 优先权与其他担保物权
21、 (3)the ranking of different kinds ofclaims secured by maritime liens优先权担保的不同类海事请求* to protect the interests of crew 保护船员利益原则* claims for loss of life or personal injury vs. claims for loss of or damage to property 人身伤亡之债优先于财产损害之债* to protect the revenue from tax 保护国家税收原则* claims that create conditi
22、ons for the satisfaction of other claims 为其他债权受偿创造条件的债权 (4) the ranking of the same kind of claims 优先权担保的同类海事请求之间的受偿顺序* paid in proportion at the same time 按比例同时受偿* first in time, last in right (salvage payment) 先发生后受偿Art. 23: The maritime claims set out in paragraph 1 of Art. 22 shall be satisfied
23、in the order listed. However, any of the maritime claims set out in sub-paragraph(4) arising later than those under sub-paragraph(1) through (3) shall have priority over those under sub-paragraph(1) through (3).* In case there are more than two maritime claims under sub-paragraphs (1)(2)(3)(5), they
24、 shall be satisfied at the same time regardless of their respective occurrences; where they could not be paid in full, they shall be paid in proportion. * Should there be more than two maritime claims under sub-paragraph(4), those arising later shall be satisfied first.* the legal costs for enforcin
25、g the maritime liens 行使优先权产生的诉讼费用* the expenses for preserving and selling the ship 保存、拍卖船舶产生的费用* the expenses for distribution of the proceeds of sale 分配船舶价款产生的费用* other expenses incurred for the common interests of the claimants 为海事请求人的共同利益支付的其他费用5. The extinction of maritime liens 优先权的消灭* The mar
26、itime claim attached by a maritime lien has not been enforced within one year of the existence of such maritime lien 除斥期间届满* The ship has been the subject of a forced sale by the court 强制出售* The ship has been lost 船舶灭失Case: 闽安8号拍卖争议案海事法院委托拍卖行拍卖船舶的效力 * 案情:1996.12,某海事法院对扣押中的船舶闽安8号,委托某拍卖市场进行拍卖。该拍卖市场以自己
27、的名义发布广告,依照拍卖法规定的程序组织实施了全部拍卖活动,最终竞买人某船务公司签署了拍卖成交确认书,并经公证部门公证。船舶在海事法院扣押期间,遭到严重损坏,致使竞买人未能已约定的船舶状态取得船舶。竞买人向拍卖人提出赔偿请求。* 判决:一、二审法院对竞买人的请求不予支持,最高院驳回再审的通知书称,“本案所设拍卖属于司法拍卖,不适用于拍卖法”。“拍卖标的在交接前始终处于司法扣押之下,拍卖市场对闽安8号没有保管和向船务公司交付义务,在拍卖过程中也没有过失”。故驳回再审请求。II. Mortgage of ships 船舶抵押权* Definition 定义 Its the right of pre
28、ferred compensation enjoyed by the mortgagee of that ship from the proceeds of the auction sale made in accordance with law where and when the mortgagor fails to pay his debt to the mortgagee secured by the mortgage of the ship.* the object of mortgage 抵押权的客体ship and its apparel,vessel under constru
29、ction, compensation paid from the insurance coverage on account of the loss of the ship(2) with respect to a ship 提供的船舶(3) the proceeds of the auction sale 依法拍卖为其实现方式2. The ranking of the mortgages 抵押权的受偿顺序Art. 19: The ranking of the mortgages shall be determined according to the dates of their resp
30、ective registrations. The mortgages registered on the same dates shall rank equally for payment. 以抵押权登记的先后顺序为准,同日登记的按同一顺序受偿。III. Possessory lien of ships 船舶留置权* Its the right of the ship builder or repairer to secure the building or repairing cost of the ship by means of detaining the ship in his po
31、ssession when the other party to the contract fails in the performance thereof. 造船人、修船人在合同另一方未履行合同时,可以留置所占有的船舶,以保证造船、修船费用得以偿还的权利。Chapter 2 Contract of Carriage of Goods by Sea海上货物运输合同 2.1 Introduction 概述* Definition of contract of carriage of goods by sea * Basic types of contracts* Formation and ca
32、ncellation of contracts* Carriers responsibilities and rights* Shippers responsibilities and rightsI. Definition of COGS 海上货物运输合同的概念* Its a contract under which the carrier, against payment of freight, undertakes to carry by sea the goods contracted for shipment by the shipper from the port of a country to ano
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