Lex Portus (Sep 2020)
Legal regulation of maritime liens in Ukraine
Abstract
Despite the special modern literature quite often touches the theme of maritime liens and ship mortgages, there are lots of issues which still remain unclear for the well-known reasons. The most crucial reasons include: mixture of heterogeneous concepts, relative novelty of the institute of maritime lien in the Ukrainian legislation and complex structure of the institute of maritime liens and ship mortgages. The present research is aimed to clarify some basic aspects of legal regulations of relations concerning maritime lien, in view of their historical development. The author highlights up-to-date concept and legal nature of maritime lien, grounds for its occurrence and termination, priority of claim satisfaction, as well as discrepancies in legal regulation of maritime lien, as compared between the current legislation of Ukraine and provisions of the 1993 International Convention on maritime liens and mortgages. Under the results of analysis, the author proposes one of the methods aimed to bring the Ukrainian legislation in compliance with obligations accepted by Ukraine under the aforesaid international treaty. The author states that bottomry is the most essential legal structure preceding up-to-date institution of maritime lien. Brief analysis of the history of bottomry allowed us to distinguish two main types of bottomry – Romanic and Anglo-German, i.e. bottomry in its own sense. Although in the modern world the institution of bottomry is almost out-of-date, it has not completely disappeared yet, but serves as historical grounds for some modern institutions of maritime law, in fact treated as encumbrance of the vessel as tangible item, namely: maritime lien and ship mortgage. Based on comparison between provisions of the aforesaid 1993 Convention and the Merchant shipping code of Ukraine, we may state that the Merchant shipping code of Ukraine is too conservative, in particular, with regards to priority of satisfaction of the maritime claims. Meantime, the Merchant shipping code of the Russian Federation was brought in compliance with regulations of the aforesaid 1993 Convention. Finally, the author concludes that the same actual elements are required for occurrence of both maritime claim and maritime lien as security thereof. Such aspects as grounds for termination of maritime lien, in particular in American law, the most vital types of privileged maritime claims and the nature of the list thereof, were also included into the subject of this article. Special attention has been drawn to the concept of maritime lien and to accessory nature of maritime liens, the subject and the parties to legal relations regarding maritime lien.
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