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Abstract

A shipowner’s lien on cargo and sub-freights in a standard charterparty form is initially commercial practice and is widely recognised and employed in the chartering industry. However, its legal implication, nature and effect in common and civil law are controversial. The controversy is attributed not only to the concept of the lien arising from common law but results also from the development of the chartering industry and of modern secured transactions law. This thesis will examine the extent to which modern secured transactions law affects the legal nature and effect of shipowner’s lien in the traditional chartering industry. In order to achieve this purpose, the thesis will first demonstrate that the word ‘lien’ in charterparties is a rather inappropriate and imprecise legal term in so far as its use in a lien clause is concerned; this has led to ambiguity in both legal systems. It is therefore proposed that the term ‘security’, which can sufficiently illustrate the purpose of a shipowner’s ‘lien’, should replace the latter word in this thesis. Further to this proposal, in the thesis this security will be divided into two sub-clauses, each of which describes the purpose of the parties and the different legal natures of security on cargo and on sub-freights. The thesis will then investigate the impact of the legal nature and effect of a shipowner’s cargo and sub-freight security along with the development of the chartering industry and of modern secured transactions law. Further to this investigation, it is argued that, regardless of common law or civil law, modern secured transactions law has impacted on the legal nature and effect of cargo and sub-freight security. However, the character of the chartering industry should also to some extent affect the legal effect of this shipowner’s security. On this basis, it is suggested that the traditional shipowner’s security be incorporated into the security system. Its legal nature in modern secured transactions law should therefore be governed by the law of security. Its legal effect should be influenced by both the law of security and also the nature of the chartering industry. Concerning the shipowner’s security, which is a traditional charterparty clause, if its exercise does not impact on public interests or intervene in the secured transactions market, its effect is not on the premise that it satisfies the legal requirement of secured transactions law. However, this thesis also highlights that the legal effect of this security is to a great extent affected by policy considerations. One may therefore conclude that in different jurisdictions the impact of the charting industry or secured transactions law on the shipowner’s security is uncertain.

Publication Type:	Thesis (Doctoral)
Subjects:	K Law
Departments:	Doctoral Theses The City Law School > The City Law School Doctoral Theses The City Law School

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