法官助理受邀参加第九届海商法国际研讨会并作主题发言
2018年10月29日至10月31日，由中国海商法协会主办、上海海事大学承办，由最高人民法院、中国国际贸易促进委员会、中国远洋海运集团有限公司、招商局集团有限公司、中国人民保险集团股份有限公司、中华全国律师协会海事海商专业委员会协办的第九届海商法国际研讨会（The Ninth International Conference on Maritime Law）在上海如期召开。本次研讨会吸引了包括最高人民法院、中国法学会、中国国际贸易促进委员会、中国海事仲裁委员会、海事法院、国际海事委员会、英国驻上海总领事馆、伦敦海事仲裁员协会、新加坡海事仲裁院、香港海事仲裁员协会以及来自中国内地、中国香港、英国、日本、韩国、新加坡、美国、加拿大、西班牙、比利时、印度等国家和地区的高校、海事咨询机构、律师事务所、航运公司、保险公司等在内的国内外海商法学术界、海事司法界、航运实务界以及相关政府部门人士和媒体逾350人与会。
本届研讨会以“新时代海商法理念、体系和制度的发展、变革和创新（The Development , Reform and Innovation of the Concept , System and Regime of Maritime Law in the New Era）”为主题，围绕十个方面议题展开，分别是：现代海商法重构与中国《海商法》修改（Reformulation of the lex maritima in the modern time & revision of the Chinese Maritime Code）；《鹿特丹规则》十周年展望（Prospects of the Rotterdam Rules at its 10th anniversary）；“后金融危机时代”航运业面临的船舶融资保障与跨境破产（New legal issues in shipping industry in the post-financial crisis era）；极地航运与海上安全的法律问题（Legal issues in polar shipping and maritime safety）；船员公平待遇（Fair treatment of seafarers）；海洋环境保护与航运可持续发展的新法律问题（New legal issues in marine environmental protection and sustainable shipping）；邮轮运输旅客权益保障（Protection of cruise ship passengers’ rights and interests）；海事争议解决的制度创新（Innovation of maritime dispute resolution mechanisms）；其他议题（Miscellaneous，含“一带一路”建设与经济全球化和贸易自由化中的海商法保障以及自由贸易港与综合运输）；青年海商法论坛（Youth Maritime law forum）。
我院法官助理郝志鹏、赵永飞受邀参加了本次会议，郝志鹏在Miscellaneous分议题中就参会论文“港口货物作业合同项下港口经营人行使占有留置权的法律困境及对策（Legal Difficulties and Solution of the Port Operator’s Exercising the Possessory Lien under the Contract of Port Goods Operation）”进行了主题发言。郝志鹏首先结合《港口货物作业规则》（已废止）的规定对港口货物作业合同及港口货物作出定义，介绍了港口经营人行使占有留置权的原因、背景及法律困境；其次，在立足我国现有占有留置相关法律规制的基础上，郝志鹏认为可以借鉴《鹿特丹规则》（Rotterdam Rules）中有关承运人运输期间和货物意定留置的相关观点，提出港口经营人合法行使占有留置权的理论对策和制度猜想，同时提出应当明确商事留置权的具体规定；最后，郝志鹏指出建立完善符合港口行业特点和实务需求的占有留置权制度，对保障“一带一路”国家战略和“自由贸易港”建设的深入推进具有重要的理论价值和现实意义。
根据最高人民法院和辽宁省高级人民法院加强调查研究工作的要求，大连海事法院一直十分重视司法调研工作，以“服务审判、服务决策、服务发展”为纲，强措施、求实效，号召干警在做好本职审判工作的同时，进一步做好理论学习和调查研究工作，以期实现审判实践与审判研究双擎并动、共同发展。本次研讨会，我院干警积极投稿并参会发言正是我院长期以来积极坚持做好司法调研工作的一个缩影和体现。习近平总书记多次强调：“调查研究是‘我们党的传家宝’，是做好各项工作的基本功。”在习近平新时代中国特色社会主义思想的指导下，大连海事法院将继续做好司法调研工作，树立把司法调研作为推动法院工作不断进步的重要前提和基础的新思维、新理念，切实将调研工作与审判实践紧密联系起来，培养组建优秀调研团队，做好各项重大专题调研和学术研讨活动，营造浓厚的司法调研氛围，让抓调研、想调研、做调研蔚然成风，让“司法为民”的服务宗旨深入人心。
(海事庭供稿)
Legal Difficulties and Solution of the Port Operator’s Exercising the Possessory Lien under the Contract of Port Goods Operation
Hao Zhipeng, Zhao Yongfei
Abstract: In the disputes over the contract of port goods operation, to take the possessory lien of port goods is the main means for domestic port operators to secure the creditor’s rights of operation charges, whereas it remains largely disputed on how to establish the legal possessory lien. This paper will induct and interpret the disputes related to the possessory lien, combine with the practice of domestic port operation, refer to the relevant ideas about the transportation period and the possessory lien on the goods in the Rotterdam Rules, and make an analysis on the legal difficulties and possible solution of port operator’s exercising the possessory lien, in order to provide more useful reference to establish the possessory lien system in correspondence with the character of port industry and practical demands.
Key Words: the contract of port goods operation, the port operator, the possessory lien, legal difficulties, solution
Port is an important part of free trade zone development and a vital node of continuously promoting the Belt and Road Initiative in China. To safeguard the port operator’s sustainable development is a national strategy of deeply implementing “Going Out” and an inevitable requirement of upgrading the competitiveness of international trade. Since the port operator and the other relevant parties differs largely in cognition and discernment of goods property permit and the legal relationship of parties in the port operation circulation under the contract of goods operation, the act of port operator’s exercising the possessory lien on port goods to secure the creditor’s rights of operation charges brings about many legal disputes in port operation practice, which damages the relevant port goods parties including the port operator to different degrees. How to solve the legal difficulties of the port operator’s exercising the possessory lien under the contract of port goods and establish the possessory lien system in correspondence with the character of port industry and practical demands becomes an important academic and practical issue for safeguarding the sustainable development of port industry.
1. Introduction to Port Goods Operation
The Regulations of Port Goods Operation (enforced in 2001) issued by Ministry of Communications (Ministry of Transport now) in 2000 was abolished by Ministry of Transport on May 30th, 2016, however, the provisions stipulated in the Regulations about the content of port goods operation and basic rights and obligations of port operators and operation clients have played a vital guiding role in port operation practice. In Item 1, article 3 of the Regulations, the definition of the contract of port goods operation is stipulated as follows, “A contract of port goods operation is a contract whereby the port operator conducts the handling, lightering, storage, container handling on waterway goods transport at the port, and the operation client pays the operation charges.”
From the above definition of the contract of port goods operation, the content of port goods operation can be divided into three parts: goods handling, goods lightering and goods storage, which basically reflects the main business scope of the port operator. In the definition, the operation of container handling is separately listed, probably for the reason that the regulations maker takes into account the particularity of container operation and the leading role of container transport in international carriage of goods by sea; however, it still belongs to a link of goods handling in view of operation method and operation purpose and differs no sharply in some special operation links of bulk goods or break-bulk goods handling, such as, goods lashing and securing, berth, pad, separation, special trimming, unpacking in cabin, unpacking and strengthening, assorting and ticket picking. Thus, the operation of container handling is not classified as the fourth one of port goods operation in this paper.
Combined with the above definition of the contract of port goods operation and the defined content on port goods operation, this paper attempts to define port goods as follows, “Port goods means inward and outward goods oriented by the port operator’s service of handling, lightering and storage at the request of the operation client.”
2. Introduction to the Disputes over Port Goods Charges
As mentioned above, the performance method of the contract of port goods operation is that the port operator provides the operation client with service of goods handling, lightering and storage at the request of the contract, and the operation client pays the operation charges. The service charges generated in such an operating mode are collectively called port charges.
From the perspective of service provider, it is the most favorable way to pay before service. The Regulations on Collection of Port Charges of the People’s Republic of China issued by former Ministry of Communications (expired, hereinafter referred to as the Regulations on Collection of Port Charges) provides, “Unless otherwise agreed upon with the port operator, the payer shall pay all the charges in advance or on spot, and shall pay in full on settlement date (postponed when it is the statutory holiday), and if overdue, 5% late fees per day shall be paid on the basis of overdue payment since the following day after settlement.” Article 24 in the Regulations of Port Goods Operation (expired) also provides, “Unless otherwise agreed, the operation client shall pay operation charges in advance.” In principle, the port operator can request the operation client to pay the port charges in advance or on spot.
Take a domestic port general goods terminal company for an example. As regulated by the company, in the ship-loading operation, the client shall first pay the operation charges in advance after depositing the goods in the port storage, and acquire sealed documents issued by the company’s finance department before proceeding with subsequent operations; In the goods discharge operation, when the goods emptied, the consignee shall pay the port charges in full before taking the goods away. If strictly in accordance with the operation process of “An Order vs. A Settlement”, the port operator may basically realize the collection of port charges in full.
However, there is an exception of the settlement mode of “An Order vs. A Settlement”. As “The Exception Agreement” is specified in article 4 of the Regulations on Collection of Port Charges(domestic trade part) (expired), article 6 of the Regulations on Collection of Port Charges(foreign trade part) (expired) and Article 24 in the Regulations of Port Goods Operation (expired), for the big client with long-term cooperation, the port operator is usually requested to sign a long-term operation contract with the client on the port operation items and charges settlement mode, and renders a certain payment term ( for example, allows the client to take a year as a payment term to settle the related charges), as a result, the disputes involved in such long-term operation contracts are the mainstream of port charge disputes and also the hot and difficult issues in the maritime judicial practice.
The possible risks involved in long-term operation contract are mainly caused by the enterprise client who faces management difficulties or capital chain rupture, and as a result the port charges are not paid off in time or fail to pay off, which severely damages the port operator’s interests. At the same time, if the operation client trades and transfers the port goods by the way of documents circulation when the operation client commissions the port operator to conduct the handling, lightering and storage, and once the port operator exercises the possessory lien on port goods, it will trigger a series of legal disputes among the multi-port goods parties, such as the operation client, the goods assignee and the port operator.
In port operation practice, it is common for the port operator to sign the operation contract where port charges may be deferred with some long-term relationship clients, especially big clients. The reason is that at present the international and domestic shipping market is in a relatively downturn period, homogeneous competition becomes more fierce among the ports and the port operation pressure remains continuously accelerated. Thus, ‘the buyer’s market’ takes shape between the port operator and the operation client. Under such circumstances, it is one of the most important ways for the port operator to maintain the market position and expand the marketing channel through extending the operation client’s payment days of port charges, especially long-term relationship clients and big clients, apart from promoting the operation service standard and initiating the operation price war. In addition, the port operators have not fully nourished the awareness of risk prevention and control or formulated the effective risk management system. When the market and seaborne trade goes well, the rapid expansion of market and trade upholds the smooth growth of the port operator’s business performance. Once the operation client suffers severe loss and even goes broke due to market cycle or its own operation and management problems, the port operator will face the operation risk of large account receivables’ failure to withdraw.
Before or in the process of securing the creditor’s right of operation charges realized by litigation, it is a common practice for the port operator to take the possessory lien of the port goods that the operation client delivered, in order to urge the operation client to pay off the port charges or secure the creditor’s right smoothly realized by converting the port goods into money when the operation client fails to afford the port charges. The port operators call it as exercising the possessory lien.
3. Legal Difficulties of the Port Operator’s Exercising the Possessory Lien on Port Goods
3.1 “Possessory Lien” Provisions in the Laws of the People’s Republic of China
In the current civil and commercial legal system of the People’s Republic of China, “possessory lien” provisions are separately stipulated in chapter 18 (from article 230 to 240) of the Real Right Law of the People’s Republic of China (hereinafter referred to as the Real Right Law), and in chapter 5 (from article 82 to 88) of the Security Law of the Republic of China (hereinafter referred to as the Security Law). ‘Possessory Lien’ provision is respectively stipulated in article 264, 315, 380, 395 and 422 (Contracts for work, cargo transportation contracts, paid storage contracts, warehousing contracts and contracts of commission agency involved) of the Contract Law of the Republic of China (hereinafter referred to as the Contract Law) , in article 25, 87, 141, 161 and 188 (shipbuilding or ship-repair contracts, contracts of carriage of goods by sea, ship lease contracts, sea towage contracts and salvage contracts involved) of the Maritime Code of the Republic of China(hereinafter referred to as the Maritime Code), in article 18, 19 and 22 (rescue service contracts and repair and storage contracts involved) of the Civil Aviation Law of the Republic of China (hereinafter referred to as the Civil Aviation Law), and in article 57 (trust contracts involved) of the Trust Law of the Republic of China (hereinafter referred to as the Trust Law). ‘possessory lien’ provisions are also stipulated in China’s International Rules for the Carriage of Civil Aviation Goods issued by Civil Aviation Administration of China, the Regulations of Port Goods Operation (expired) and the Regulations of Vehicle Goods Transportation (expired) issued by former Ministry of Communications and the Administrative Measures for Auction (Edition 1994, expired) issued by Ministry of Internal Trade.
In the above laws and regulations (the Security Law is an exception ), the Real Right Law and the Contract Law are the ordinary laws issued by the NPC and the main legal ground to apply the possessory lien on port goods at present. As special laws issued by the Standing Committee of NPC, the Maritime Code, the Civil Aviation Law and the Trust Law, especially the Maritime Code closely related to port operation, have no provisions about the possessory lien on port goods. In regulations, only the Regulations of Port Goods Operation (expired) had special provisions about the possessory lien on port goods.
Article 40 of Regulations of Port Goods Operation (expired) provides, “Where the operation charges, dispatch money and the necessary expenses paid in advance for goods by the port operator have not been paid in full, nor has appropriate security been given, the port operator may take the possessory lien on the relevant transport goods, unless otherwise agreed.”
Considering the provision’s wording, it combines the provision of article 87 of the Maritime Code with that of article 315 of the Contract Law. Since the Maritime Code took effective in 1993, the provision “the carrier may have a lien, to a reasonable extent, on the goods’ of article 87 has been argued continuously. The Contract Law enforced in 1999 changes the applicable object of the carrier’s lien regarding to domestic goods transport, article 315 of which provides that “the carrier is entitled to lien on the relevant carried goods”, avoids disputes over ownership of a property under lien and adopts a tendentious opinion of protecting the carrier’s interests. In article 40 of the Regulations of Port Goods Operation (expired), the first half part of which refers to article 87 of the Maritime Code and the latter half part refers to article 315 of the Contract Law, adopts the principle of protecting the obligee’s interests in priority, provides the regulation ground for the port operator’s exercising the possessory lien on port goods and establishes the port operator’s special legal status in a long time. However, on May 30th, 2016, the Ministry of Transport issued Decision of the Ministry of Transport on Repealing 20 Transport Rules including the Regulations of Port operation, which ended the so-called “special legal status” of the port operator.
In conclusion, in the present practice of port goods operation, only in accordance with the relevant provisions of chapter 18 of the Real Right Law and article 395 (warehousing contracts) of the Contract Law can the port operator claim to exercise the possessory lien on port goods. In view of article 92 of the Legislation Law of the People’s Republic of China (hereinafter referred to as the Legislation Law), the Real Right Law and the Contract Law have the same effective grade, while the Real Right Law is a new law compared to the Contract Law, thus the lien effectiveness shall be recognized in accordance with the Real Right Law based on the principle of a new law prevailing over an old law. In addition, since warehousing operation is just a part of port operation, the port operators are afraid that the creditor’s right under the contract of port goods operation shall not be realized in full in accordance with article 395 of the Contract Law, so the Real Right Law is the most important legal ground as a guide of the port operator’s exercising the possessory lien on port goods.
3.2 Disputes Caused by Differential Interpretations over Legal Ground of the Possessory Lien Application
In port operation practice, the port operators find it difficult to exercise the possessory lien on port goods, the reasons of which the paper shall have a vivid analysis on.
3.2.1 Differential Interpretations over “the Obligor’s Chattels”
Paragraph 1 of article 230 of the Real Right Law provides, “where an obligor fails to pay off its due debts, the obligee may take the possessory lien on the chattels that are owned by the obligor and lawfully occupied by the obligee and has the right to seek preferred payments from such chattels.” Under the contract of port goods operation, Party A is the port operator; Party B is the operation client. According to different operation clients, the port operations are classified into operations commissioned by the carrier and operations commissioned by the merchant. The operation commissioned by the carrier means that the carrier of carriage of goods by sea or river signs the contract of port goods operation with the port operator and conducts goods handling, lightering and storage. The operation commissioned by the merchant means that the shipper or consignee of carriage of goods by sea or river signs the contract of port goods operation with the port operator and conducts goods handling, lightering and storage. Where the operation client fails to pay the due port charges, the port operator is entitled to take the possessory lien on “the obligor’s chattels”. When the owner of goods signs the contract of port goods operation with the port operator, the owner of goods and the operation client are identical. If the owner of goods defaults in the port charges, the port goods under his name is definitely “the obligor’s chattels”, which remains no dispute over the port operator’s exercising the possessory lien on the goods. However, in the port operation practice, the constant change of “person” and “goods” in the process of goods circulation at the port results in various kinds of disputes and obstacles when the port operator takes the possessory lien on the port goods.
3.2.1.1 Change of “Person” -Disputes Caused by Change of the Port Goods Owner
Commissioned by the goods owner, The freight forwarder, in his own name, signs the contract of port goods operation with the port operator, or the goods owner straightly signs with the port operator while transfers the goods to the third party in the process of the port operation circulation, or the goods buyer signs the contract of port goods operation with the port operator before obtaining the goods ownership while fails to pay the goods seller to obtain the goods ownership, etc. The above circumstances can bring about the relevant disputes over the goods ownership when the port operator exercises the possessory lien on the goods against the operation client, which consequently hinders the port operator from taking the possessory lien on the port goods.
3.2.1.2 Change of “Goods”- Disputes Caused by Change of the Goods under the Contract of Port Goods Operation
The port operator signs the long-term contract with the operation client, and the operation client defaults in the port charges of the first batch of goods. When the grace period is due, the port operator always detains the second batch of goods deposited by the operation client and claims to exercise the possessory lien on the goods. The port operator’s exercising the possessory lien on the second batch of goods due to the creditor’s right of the first batch of goods is bound to trigger resistance of owners of the second batch of goods.
The above disputes caused by the change of “person” and “goods” reflect the differential interpretations on legal application of “the obligor’s chattels” in practice. There are different views about how to interpret the obligor’s chattels and whether to exercise the possessory lien on the third party’s chattels. Point 1, “the obligor’s chattels” are confined to be the chattels owned by the obligor, the system of bona fide acquisition is not applied to the possessory lien or the chattels owned by the third party, otherwise the third party suffers loss, which is unfair and against the possessory lien system’s original purpose of urging the obligor to pay the debt in time. Point 2, “the obligor’s chattels” are “the chattels owned by the obligor”. Towards the chattels owned by non-obligor, the obligee may exercise the possessory lien on the third party’s chattels through the system of bona fide acquisition . Point 3, “the obligor’s chattels” are mainly “the chattels occupied by the obligor” . Point 4, the obligee may exercise the possessory lien once the obligee occupies the implicated chattels on the basis of normal operation activity, needless to apply the system of bona fide acquisition, for example, the property permit of chattels is not provided in the provisions of the Contract Law about the possessory lien of contracts for work and contracts of transportation. The fourth point is to determine whether the system of bona fide acquisition is applied by distinguishing the implicated relationship.
3.2.2 Differential Interpretation of “the Same Legal Relationship” and the Commercial Possessory Lien
Article 231 of the Real Right Law provides, ‘The chattels taken as the possessory lien by the obligee and the creditor’s rights shall fall into a same legal relationship, except for the lien between enterprises.” In port operation practice, it is common that the same operation client commissions the port operator to conduct the port goods operation of different kinds, different batches, different operation content and even different goods owners in a period of time. Due to the payment term of operation charges, when the port operator takes the possessory lien on port goods, the operation client and other parties relevant to the port goods usually have disagreements and disputes over whether the lien behavior is in accordance with “the same legal relationship” or the commercial possessory lien is applied.
3.2.2.1 Disputes over “the Same Legal Relationship”
Article 178 of the Real Right Law provides, “Where any provision in the Security Law conflicts with that of the present Law, the latter shall prevail.” The relationship and difference between “the same legal relationship” of the Real Right Law and “the implicated relationship” of the Security Law both have different interpretations in theory and practice. Point 1, considering that the definition of “the implicated relationship” is relatively vague and the scope definition and the legal application are prone to disagreements, and it is too narrow that the Security Law and its judicial interpretation confines the application scope of lien to the specific contractual relationship, so “the same legal relationship” is recommended to replace “the implicated relationship”, which requests that the obligee’s occupying the obligor’s chattels and the creditor’s right shall be based on “the same legal relationship”, and the creditor’s right and the subject’s occupation shall be based on the same contractual relationship. Point 2, “the same legal relationship” shall be interpreted as “the implicated relationship”. In China, the scholars divide “the implicated relationship” theories into monism (Direct Reason Theory) and dualism (Indirect Reason Theory). The monism views that, only when the causality occurs between the subject and the creditor’s right and the possession is the direct reason for the creditor’s right can the implicated relationship exist. The dualism views that, once the occurrence of the creditor’s right has some relationship with the subject, the implicated relationship will exist, no matter whether the subject is the reason for the occurrence of the creditor’s right.
3.2.2.2 Disputes over the Commercial Possessory Lien
Most scholars hold that the latter part of article 231 of the Real Right Law “except for the possessory lien between enterprises” is the legal ground of “the commercial possessory lien” in China, however, since the statement is too simple and abstract, there are many disputes over the application standard of the commercial possessory lien in theory and practice. Point 1, the establishment of the commercial possessory lien requires that general correlation should occur between “the chattels” and “the creditor’s right”, not the direct implicated relationship or the same legal relationship. The commercial possessory lien may be applied to the chattels owned or disposed by the obligor, and the obligee may acquire the lien “in good faith” if the obligee does not know the subject is owned by the obligor. Point 2, the provision of “except for the possessory lien between enterprises” should be interpreted restrictively, which means that the obligee will not exercises the commercial possessory lien until the obligee enjoys the creditor’s right, occupies the chattels based on normal operation activity, and comforms with the legal requirement that the obligor failed to pay off its due debts and the obligee did not illegally take the possession. In addition, based on the requirement of Commercial Rechtsschein Theorie and transaction efficiency, the system of bona fide acquisition should be applied to the commercial possessory lien. Point 3, the commercial possessory lien’s purpose is to balance the relationship between the two merchant’s aggregations of creditor’s right, which requires no implicated relationship between “the creditor’s right” and “the possession of chattels”, but interaction effectiveness exists between “the creditor’s right” and “the chattels’ possession”. Considering the function and core character of the commercial possessory lien, its subject should be the chattels owned by the obligor and the system of bona fide acquisition should not be applied.
4. Possible Solution and System Assumption
4.1 Necessity of Ensuring the Port Operator’s Possessory Lien
In terms of economic development, the places where the ports are located are usually core and engine part of economic development, which play a vital role in the local economy, national economy even the world economy. With global allocation of resources and modern development of logistics, the ports have converted single sea transportation hubs into logistics platforms integrated with multi-transportation means of sea, highway, railway and aviation and combined with the production factors of intellectual, goods, capital, technology and information and an indispensable and important link of global supply chains. Thus it is objectively and realistically urgent to make special legal regulation on the port operators’ relevant rights and obligations and protect their legal interests in priority.
In the view of national strategy, ‘One Belt, One Road’ construction, Free Trade Zone (Port) construction, and Coastal Economic Zone construction are the important parts. It is of great strategic significance to nourish sustainable legal environment for the port operators.
In the view of contractual freedom, the content and performance of the contract of port goods operation is negotiated between the operation client and the port operator. It remains undoubted that the contracting parties make adaptive adjustment of the contract content and performance means in terms of market change when the payment means of operation charges is converted from prepayment or spot payment into deferred payment. However, in the process of the above adjustment, in view of the mandatory regulation of numerus clauses, the provisions of possessory lien on port goods agreed between the port operator and the operation client to secure the creditor’s right of operation charges are always in a dilemma of being unable to apply due to the aforementioned disputes, which objectively aggravates the port operator’s contractual obligations, results in unbalance of the contractual parties’ rights and obligations and consequently hinders the market development of the port industry. Thus, to make special legal regulation on the possessory lien of the port operator has its jurisprudential basis.
In the view of practical operation, the port operator cannot secure exercising the possessory lien legally by recognizing the goods owner in accordance with the current laws. If the port operator compulsively requires that the operation client should be the port goods owner, it may effectively solve the legal difficulties of the abovementioned lien’s exercising, however, it will tremendously reduce the port goods circulation efficiency and severely hinder modern development of trade and logistics, which is not only detached from the practice of present port industry trade but contradictory to the development law of global economic trade, so that it boast no realistic feasibility.
4.2 To Set Rules Concerning the Special Possessory Lien of the Contract of Port Goods Operation
As the above-mentioned disputes over the legal application of the possessory lien, it is a common thing that the disputes over the legal concept and application scope of “the obligor’s chattels” and “the same legal relationship” related to the possessory lien under the contract of port goods operation occur due to property change and payment term of operation charges in the process of port goods circulation. When the Regulations of Port Goods Operation expired, the effective legal rules should be enacted to provide a special guide. For example, to set up a separate section or add special provisions is to define the relevant parties’ rights and obligations including the possessory lien of the contract of port goods operation in the amendment of the Maritime Code, or the Ministry of Transport enacts a new special regulation on the port goods operation on the basis of the Regulations of Port Goods Operation (expired), of which article 40 is reserved.
4.2.1 To Borrow the Relevant Ideas about Transport Period and Retention of Goods of the Rotterdam Rules
After the Hague Rules, the Hague-Visby Rules, and the Hamburg Rules, the Rotterdam Rules is the latest achievement on the legal system of the international carriage of goods by sea. Although China has not entered into the Rotterdam Rules, it is bound to exert more and more influence on China’s shipping and trade as increasing numbers of countries accede to the Convention. In the Rotterdam Rules, the Convention application scope of the carrier’s transportation period under the contract of carriage is extended from “tackle to tackle” and “port to port” in the traditional transport convention to “door to door” namely the whole transportation period. In the view of the whole transportation contract, the port operation may be deemed as a segment of the international carriage of goods by sea.
To borrow such an idea and combine with the current legal system, if the port operation is a segment of the international carriage of goods by sea, and when the port operation client is the carrier, article 41 of the Maritime Code can be revised as follows, “A contract of carriage is a contract under which the carrier, against payment of freight, is committed to carrying the good from one place to another. The contract herein shall make provisions on the carriage by sea, and so as to other means of carriage except the carriage by sea.’ And at the same time Item 2 of article of 42 is revised as follows, “‘Actual carrier’ means the person to whom the performance of carriage of goods, or of part of the carriage, has been entrusted by the carrier, includes any other person to whom such performance has been entrusted under a sub-contract, and any other person herein can be the port operator entrusted by the carrier.’ Thus, article 87 of the Maritime Code may be revised as follows, ‘If the freight, contribution in general average, demurrage to be paid to the carrier and other necessary charges paid by the carrier on behalf of the owner of the goods as well as other charges to be paid to the carrier have not paid in full, nor has appropriate security been given, the carrier may have a lien, to a reasonable extent, on the goods. The actual carrier claims to have a lien on the goods, the preceding paragraph shall be referred to as.”
Besides, article 49 of the Rotterdam Rules provides on retention of goods as follows, “Nothing in this Convention affects a right of the carrier or a performing party that may exist pursuant to the contract of carriage or the applicable law to retain the goods to secure the payment of sums due.” It explicitly acknowledges that the possessory lien can be a statutory legal right as well as an agreed right. To borrow this idea and consider the particularity of carriage of goods by sea, during the whole contract period of carriage by sea (the port operation period included), whether to break the statutory setting rule of the possessory lien and apply the agreed rule of the possessory lien establishment may be a worthy research proposition for the revision of the Maritime Code in China. For example, considering that the port operation period is included in the contract period of carriage of good by sea, article 87 of the Maritime Code is revised as follows, “the carrier or the actual carrier may have a lien on the goods according to stipulations of other laws or the contract of carriage of goods.”
When the port operator is the shipper or the consignee, the provisions about the possessory lien of storage contracts and warehousing contracts respectively stipulated in article 380 and 395 of the Contract Law are directly applied by enacting a judicial interpretation, that the port operator exercises the possessory lien on the goods as the depository.
4.2.2 To Clarify the Specific Provisions about Application of the Commercial Possessory Lien
The disputes over the legal concept and application condition of “the obligor’s chattels” and “the same legal relationship” may be solved by the interpretations and related regulations in the current legal system, however, regarding the identification of the commercial possessory lien, it brings considerable uncertainty for exercising the commercial possessory lien on port goods legally for the reason that the relevant provisions of the Real Right Law are too obscure and the authorized interpretations are too scarce. It may be an easy and feasible way to make special regulations on the application scope and condition of commercial possessory lien by issuing the judicial interpretation of the Real Right Law. For example, in the future, the commercial possessory lien may be stipulated by enacting the Supreme People’s Court on Some Issues Regarding the Application of Real Right Law of the People’s Republic of China (No.2), which provides, “the called ‘except for the possessory lien between enterprises’ stipulated in article 231 of the Real Right Law, requires that there should be the operation relationship between the obligee and the obligor, and the general correlation exists between ‘the chattels’ taken as lien and ‘the creditor’s right’, and ‘the chattels’ should be owned or legally occupied by the obligor. ”
5. Conclusion
At present, the risk of owed operation charges for the port operators in China is not very high, but it pays our attention to certain cases and system defaults. To solve the legal difficulties that the port operators are confronted when exercising the possessory lien under the contract of port goods operation, establish and perfect the possessory lien system compatible to the character of the port industry and the practical demands, nourish the legal environment for sustainable development of the port industry, is of realistic significance for the port operators to further take special advantage of the important node of “One Belt, One Road” Construction.
责任编辑：大连海事法院 办公室