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1、第二章 船舶【扩展英文阅读资料】Maritime LiensSee “Maritime Liens”, available athttp:/beta.austlii.edu.au/au/other/alrc/publications/reports/33/ALRC33Ch8. 资料来自澳大利亚法律改革委员会官方网站上的一篇报告 针对澳大利亚有关海商法改革。The Present Law of Maritime Liens. The history of maritime liens in Anglo-Australian law was outlined briefly in para 14.
2、 The claims which give rise to maritime liens in Australia today are claims for salvage, collision damage, seamens wages, bottomry and respondentia, masters wages and masters disbursements. Four of these (salvage, collision damage, seamens wages, bottomry and respondentia) are creations of the Admir
3、alty Court. The other two, the liens for masters wages and for masters disbursements, were created by statute in the 19th century. Although there is no recent explicit authority, it is safe to say that in the absence of statute no additional maritime liens would be recognised by Australian courts. T
4、he position with respect to the two liens of statutory origin, masters wages and masters disbursements, is a complicated one. The statutes creating the liens only purported to apply to masters of British-registered ships. Characteristics of Maritime Liens. All claims which give rise to maritime lien
5、s may be enforced in admiralty by the arrest of the wrongdoing vessel. This right to arrest survives any change in the ownership of the vessel, whether the change in ownership took place before or after the proceedings were commenced. In situations of insolvency maritime liens rank above mortgages a
6、nd other claims in the admiralty order of priorities. Despite these attributes, Anglo-Australian admiralty law has never made it clear whether a maritime lien is merely a procedural device by which to compel the defendant to appear or a right of property given by way of security for a maritime claim
7、. The result seems to be that, while for some purposes the procedural view is correct, it is recognised that some characteristics point in the direction of a maritime lien partaking of the nature of a proprietary right in the ship. This is particularly true of the ability to enforce by action in rem
8、 a maritime lien despite a change in ownership of the ship (the so-called droit de suite). The Creation of New Maritime Liens. Against this background, a number of questions arise. The first is whether the proposed legislation should seek to extend the range of maritime liens beyond those presently
9、existing under Australian law. The view that maritime liens are substantive or proprietary rights might appear to imply that new maritime liens could not be created in reliance only on the power to confer admiralty jurisdiction under s 76(iii) of the Constitution. Even if this view is accepted, it d
10、oes not follow that the creation of new maritime liens falls outside the Commissions Terms of Reference. These require it to report upon all aspects of the Admiralty jurisdiction in Australia. The term the Admiralty jurisdiction is to be construed broadly, so as to include the creation or extinction
11、 of maritime liens: it would be strange to treat maritime liens as not being an aspect of the admiralty jurisdiction. On this basis, the question is whether the Commission should recommend the creation of new maritime liens, either in particular cases or (on the model of the United States ) all case
12、s, of admiralty jurisdiction. Leaving aside for the moment questions of constitutional power, the following considerations apply: The policy of the English courts, so far followed in Australia, has been not to create new classes of maritime liens. The United States position is exceptional. Internati
13、onal efforts at the unification of maritime law have been unsuccessful in achieving agreement on the appropriate range of maritime liens. By contrast, expanding the scope of rights to arrest ships without creating new maritime liens is less likely to meet with international objections , since statut
14、ory rights of action in rem rank below maritime liens and mortgages in the admiralty order of priorities, and do not (unless carried into effect by the commencement of proceedings) prevail against a new owner of the ship. There is little indication of a demand or need in Australia for creation of ne
15、w maritime liens. A problem which sometimes occurs is that of third parties dealing with persons apparently authorised to act on behalf of the ship but who may not be legally the agents of the owners. Whatever provision is necessary to deal with this problem , it does not require the creation of new
16、 maritime liens. For these reasons, and pending agreement at the international level on the proper scope of maritime liens, new maritime liens should not be created. Foreign Maritime Liens. A separate issue that remains uncertain in Australia concerns maritime liens arising outside the forum. Where an act or event that gives rise to a maritime lien under the relevant foreign law would not have given rise to a maritime lien under Aus
