선박우선특권상 피담보채무를 지는 자의 범위에 관한 고찰

A maritime lien is a privileged claim upon sea-connected property, such as a ship, for services rendered to, or the injuries caused by that property. Maritime lien means claim that specifically binds a ship and/or its cargo for payment of a maritime liability associated with a voyage, such as seamen's wages or damages arising out of collision. A maritime lien is independent of the ship's possession and attaches to the vessel whether it is at open waters or in a port. Such maritime lien holder is entitled by law to claim for preferential reimbursement prior to other claims. The problem is whether the claim made by the obligor such as the charterer, the ship management company and the operator of the ship can trigger the maritime lien or not under the Korean Maritime Law, the 1993 Convention. Under the Korean Conflict of Laws Act, whether a maritime lien is available, and the order of priority among competing maritime liens are questions to be determined under the law of the jurisdiction of the ship's flag. The law of the vessel's flag also controls the expiration of maritime liens, and whether a maritime lien continues to be enforceable despite a change in a vessel's ownership. Similarly, Korean law does not recognize the in rem action. If the vessel is Korean flagged, then Korean law will be applied. If Korean law governs, the maritime liens would survive the change in ownership, but would expire after one (1) year if not exercised.