Regardless of the absence of a unified perception of self-help, a lien in general is
undoubtedly a self-help remedy. As stated by Diplock LJ in Tappenden (t/a English
and American Autos) v. Artus, “lien is a self-help remedy, triggered by the performance of work which improves a chattel of which the performer has lawful possession, and does not depend on any implied contractual term. . . lien as a remedy in
rem, requiring for its exercise no intervention by the courts”.
9 In the context of this
definition, it is submitted that a lien is at once a proprietary right as well as a kind of
self-help remedy, and the lien clause in a charterparty giving the shipowner a lien on
cargo where the charterer has defaulted in some way, is no exception.
10 Incidentally
in Chinese legal practice, normally, the court favours the shipowner when the cargo
does not belong to the charterer, even though according to the relevant provision in
the Maritime Code, it is provided that the charterer shall be the owner of cargo on
board. However, in the on-going revision of the Maritime Code, it is proposed that,
regardless of whether the cargo belongs to the charterer, if the cargo is transported by
the shipowner, he is entitled to detain the cargo.
11
The notion of the self-help remedy in the context of the lien clause raises the
question whether the right of the shipowner in the form of the cargo lien is “absolute”
in the sense that there can be no legal impediment to its exercise; that is, whether
there are any obligations or responsibilities attached to it. That may, in the first
instance, be presumed to be the case given that the charterer is the one who is the
defaulter, but there are certain basic related precepts that must be considered before
reaching any conclusion in this regard.
2.2 Bailment
One is the concept of bailment in English property law. The carrier in custody of the
shipper’s cargo can be said to be a bailee and the law of bailment is applicable to him
in term of certain responsibilities that he must bear in respect of the cargo. Arguably,
even when he wears the hat of a cargo lien-holder, exercising his rights under the
cargo lien and at the same time enjoying the benefit of a self-help remedy, his legal
responsibilities as a bailee are not extinguished. On the other hand, it is equally
arguable that in a typical bailment scenario, the carrier is a bailee as custodian of the
cargo under operation of law whereas his right to self-help arises out of some default
on the part of the cargo owner under the contract of carriage. At any rate, in this
chapter, there is no intention on the part of the authors to delve into the law of
9 [1964] 2 QB 185 at 194–195; [1963] 3 All ER 213 at 215–216, (CA).
10 When the charterer is not the cargo owner, whether the shipowner is entitled to detain the cargo
depends on the incorporating clause and the jurisdiction where the detention takes place.
11 See Ministry of Transport of the P.R. China
314
S. Jia and H. Yu
undoubtedly a self-help remedy. As stated by Diplock LJ in Tappenden (t/a English
and American Autos) v. Artus, “lien is a self-help remedy, triggered by the performance of work which improves a chattel of which the performer has lawful possession, and does not depend on any implied contractual term. . . lien as a remedy in
rem, requiring for its exercise no intervention by the courts”.
9 In the context of this
definition, it is submitted that a lien is at once a proprietary right as well as a kind of
self-help remedy, and the lien clause in a charterparty giving the shipowner a lien on
cargo where the charterer has defaulted in some way, is no exception.
10 Incidentally
in Chinese legal practice, normally, the court favours the shipowner when the cargo
does not belong to the charterer, even though according to the relevant provision in
the Maritime Code, it is provided that the charterer shall be the owner of cargo on
board. However, in the on-going revision of the Maritime Code, it is proposed that,
regardless of whether the cargo belongs to the charterer, if the cargo is transported by
the shipowner, he is entitled to detain the cargo.
11
The notion of the self-help remedy in the context of the lien clause raises the
question whether the right of the shipowner in the form of the cargo lien is “absolute”
in the sense that there can be no legal impediment to its exercise; that is, whether
there are any obligations or responsibilities attached to it. That may, in the first
instance, be presumed to be the case given that the charterer is the one who is the
defaulter, but there are certain basic related precepts that must be considered before
reaching any conclusion in this regard.
2.2 Bailment
One is the concept of bailment in English property law. The carrier in custody of the
shipper’s cargo can be said to be a bailee and the law of bailment is applicable to him
in term of certain responsibilities that he must bear in respect of the cargo. Arguably,
even when he wears the hat of a cargo lien-holder, exercising his rights under the
cargo lien and at the same time enjoying the benefit of a self-help remedy, his legal
responsibilities as a bailee are not extinguished. On the other hand, it is equally
arguable that in a typical bailment scenario, the carrier is a bailee as custodian of the
cargo under operation of law whereas his right to self-help arises out of some default
on the part of the cargo owner under the contract of carriage. At any rate, in this
chapter, there is no intention on the part of the authors to delve into the law of
9 [1964] 2 QB 185 at 194–195; [1963] 3 All ER 213 at 215–216, (CA).
10 When the charterer is not the cargo owner, whether the shipowner is entitled to detain the cargo
depends on the incorporating clause and the jurisdiction where the detention takes place.
11 See Ministry of Transport of the P.R. China
314
S. Jia and H. Yu