선박우선특권에 대한 여러 가지 쟁점 연구 및 실무상 유의사항 검토

Abstract

Maritime liens are the concept that ships themselves become defendants by personification. Thus, ones, especially claimants holding maritime liens who get involved in the contract party having no asset, don’t need to clarify who are real ship owners and can recover his claims by exerting maritime liens directly on the ship concerned with priority over any registered mortgages. This pater first will review the maritime liens generally and exam various issues on maritime liens with precautionary steps for practice and in turn suggest how parties concerned manage their risks in connection with maritime liens. Claimants who would like to exercise maritime liens, first of all are to ascertain their claims are applicable to maritime liens by virtue of governing law in the country. In other words, under the law of the State of registration concerned, they have to review on establishment of claims for maritime liens, priority of maritime liens and extinctive prescription. Particularly if cases are related to foreign factors, in principal governing law shall be the law of the State of registration according to Private International Law but also one should bear in mind that there is tendency to decide governing law in accordance with the most significant relationship. And one should research ahead of time the law of the State where enforcement takes place. Especially if cases are in involved in parties by 1993 Convention, they should take a consideration of the scope of debtors. In the meantime, maritime liens may hurt the right of ship mortgagees, which in turn have a great impact direct on the shipping and shipbuilding market. As for these, the international society and some countries are trying to reduce the number of claims for maritime liens and shorten the extinctive prescription and also there is an inclination that claims stem from the contracts should be settled between the contract parties, prior to exercising maritime liens. Finally, parties interests in shipping business should remember they would be harmed without fault. So they should be alert at their parties’ standing status, proper insurances they have and ships’s history of accident in advance to avoid unexpected losses as preventive measures.