日期：2018-09-13 / 人气： / 来源：http://www.rzfanyi.com/ 作者：译声翻译公司
ship finance lease contract framework for risk prevention
Ship finance lease transactions, contractual relationship, would not fall under the scope of traditional financial leasing contracts, but in practice play an important role of mortgage contracts and insurance contracts are also included in the study perspective, and thus a complete display of shipping finance lease transaction, the contract structure. On this basis, analysis of ship finance lease transactions face a special risk, and suggest preventive measures and legislative proposals.
1, ship leasing of the shipping industry and the importance of its development
The shipping industry is a capital-intensive industries, a huge amount of investment, return on investment a long period, the rate of return of instability to operate a higher risk. Thus, capital investment has constrained the development of the shipping industry, a key factor. Since the 20th century, 60 years, the ocean shipping business generally begin to acquire mortgage loans from commercial banks as a way to solve the problem of funding the acquisition of vessels. But in the 20th century, 80 years, 'Basel II' introduced, the banking environment has undergone major changes. At the same time as the Third World debt crisis, as well as the late 20th century 80 real estate crisis, the bank's asset quality deteriorated significantly. In this environment, the banking industry can only limit the number of risky assets and increase their profitability. So many banks to withdraw all or part of the risk weights for high shipping industry, leading to a large number of funding shortfall. The shipping industry needed to find new sources of funding and the creation of new financing techniques. The new financing instruments, including export credit, financial leasing, issuing shares, issuing bonds. Of which finance lease in this way, due to financing long-term, low cost, large cash flow characteristics, in the shipping finance increasingly widely used.
Leasing began in the 20th century, 50 years, in order to melt material means to achieve the purpose of financing, the financial capital and industrial capital of mutual penetration, combine and expand the product of commercial credit and bank credit a combination of a new mode of financing. Finance leases are fully applied to the ship in foreign financing, cross-border financial leasing has become a developed country by exporting capital to developing countries to use foreign investment to solve the shortage of foreign exchange funds an important way to the fleet of structural adjustment in developing countries of great significance.
China is a maritime power, China's foreign trade import and export of goods by shipping more than 80% complete. China's current fleet faces the problem of aging ships, need to update the ship, adjust the fleet structure, which will undoubtedly require huge amounts of money for their support. However, since 1981, the State Council decided on from the original shipping company plans to allocate funds into corporate lending. And since 1995, the PBC lending rate for all businesses to implement uniform standards for vessel shipping enterprises no longer enjoy any preferential loan rates, and since 1993 the implementation of after-tax repayment. Thus, loans to commercial banks through the intermediation of funds, the cost is high. Meanwhile, in China's current stock market, the shipping company by issuing shares or bonds is difficult to fully meet the financing needs. In this context, the use of financial leasing to raise funds to renew the ship is undoubtedly an ideal choice. As the ship finance lease is usually achieved through a series of contracts and, therefore, study the structure of the ship finance lease contracts, and transactions of various risk prevention, in the context of the existing maritime economy and has important theoretical and practical significance.
2, ship finance lease transaction and the contract structure
(A) the ship finance lease structure of the core contract
Ship finance lease include a range of contractual transactions. First, choose from the charterer ships and the seller, after which the lessee by the lessor according to the choice of signing the seller ship the ship contract for the sale. The lessor to buy the ship after the lessee signed a bareboat lease contract, the agreed time, the ship used by the lessee, the lessor to receive rent in the form of installments to recover the ship cost, interest and profits. Lease expires, according to mutual agreement, the lessee the right to choose to stay purchase, renewal or return shipping.
Based on the above transaction process, ship leasing involves at least two contracts with the three parties. The contract is two ships bareboat contract for the sale and lease contracts; three parties including the seller ships, ship the buyer (lessor) and the ship charterer. Staggered between the two contracts, rights and obligations of the parties is also the tripartite influence each other. For example, although the seller ships the buyer (lessor) signed a contract for the sale, but the lease contract the lessee should be the delivery of the ship. The seller did not fully perform the contract, the lessee under certain conditions, can apply directly to the seller the right to claim that the lessee enjoys the right to contract for the sale of part of the buyer. In addition, the parties should not arbitrarily change the contract for the sale contract for the sale of ships related to the contract with the lessee.
Ship sale and purchase of ships and ship financing lease constitutes the core of hire-purchase transactions, sales contracts and leasing contracts also constitute a legal relationship of shipping finance lease structure of the core of the contract, which is leasing and other financing transactions not make much difference. However, due to shipping finance lease is based on the ship as the subject of this particular ship makes the ship leasing movable property leasing than ordinary legal relations more complex, in addition to the above-mentioned framework, the core of the contract and wishes to the successful completion of ship finance transactions, but also need to consider external contract structure.
(B) the periphery of the ship finance lease contract structure
Ship finance lease structure of the periphery of the contract include the loan contract, guarantee contracts and insurance contracts. Ship more common in leveraged finance leases in the lease, for example, usually by a lessor self-purchase 20% -30% of the capital ships, and the rest to the bank loan, and usually the ship as collateral, while the transfer of right to receive the rent as security. As the ship sailing in the world, its operational risk is much higher than normal finance lease in the equipment, so should be carefully arranged insurance. Loan contracts, guarantee contract with the insurance contract is the successful completion of shipping finance lease transaction, an important guarantee for the external form of shipping finance lease contract structure.
Whether the construction of new ships, or buy second-hand ships, ship acquisition costs are a huge expenditures, the finance lease the lessor to purchase the ship, also need to arrange for financing. In the leveraged lease, usually by a lessor to the bank loan to raise funds, which requires the signing of loan contracts with banks. The main provisions of the loan contract loan amount, repayment period and manner, loan interest, and by way of security and so on.
Be able to ensure the safety of funds is one of the key issues of financing transactions, so by way of security selection and arrangement naturally become the parties, in particular the focus of attention by the lender. Ship finance lease the lessor for the smooth intermediation of funds, in practice, usually by way of security the following: (1) third-party guarantee. Letter of Guarantee issued by a third party, namely, the lessor by a third party guarantees the timely payment of amounts due and interest. Third-party guarantees in nature is 'Guarantee Law' guarantees under the contract, belongs to a human security. (2) rental transfer agreements. The lessor leased to the lessee to buy the ship after the light will be on a regular basis to receive rental income that the rental income can be used as repayment guarantee. (3) The ship mortgage contract. Ship financing in the purchase, the most convenient way of security, is to ship as collateral purchased, signed mortgage contracts. If the borrower fail to make payments, the lender may be a priority claim on the value of the ship.
As the ship sailing at sea, operating when a huge risk, the parties usually insurance to spread the risks. In ship leasing, in accordance with the provisions of the law, as well as bareboat lease contract agreement, the lessee shall be in accordance with the contract value of the ship to the lessor agreed-insurance insurance for the vessels, and the burden of insurance costs.
In addition to the lessee of the ship hull insurance coverage, the lessor can expect rental income insurance. Bank as lender and the mortgagee, for their own interests can also be insured, to counter the risk of uncertain future caused by borrowers unable to repay the loss of time.
3，ship finance, leasing special risks
Compared with ordinary party leasing, ship lease financing a party the burden of a number of additional risks, in addition to facing the ship may encounter during the voyage of the shipwreck, we should also bear the following specific risks: reposted elsewhere on the Free Paper Download Center http://
(A) political risk
Ship sailing around the world, may in some countries for political reasons the port of detention, expropriation or confiscation, or were trapped in a theater can not leave. At this point the ship is equivalent to a total loss, no doubt will ship financing leases an impact on the interests of the parties.
(B) the ship owner liability risk
In the lease period, ownership of the lessor to enjoy the ship, it will bear the international conventions and domestic law, lessons are given in the owner's duties and responsibilities. For example, under 'Convention on Civil Liability for Oil Pollution' bear the liability for oil pollution damage; if the ship sank, we must assume the obligation to salvage, or the burden of mandatory salvage costs; IS Code to abide by the requirements of international conventions such as properly equipped ships. Ship finance lease in the lessor to finance the main business, its lessons are given in the owner of many duties and responsibilities is clearly not the parties would like to see.
(C) the confiscation of the risk of
In the operation of the ship during a maritime lien may have enjoyed the security of maritime claims, maritime claims will normally be by applying for arrest of a ship to claim the rights. Ships are subject to judicial seizure, and if the owner or charterer of the ship failed to provide appropriate security, ships will be justice for auction. If the maritime lien secured a huge amount of maritime claims, the ship mortgagee's interests will be seriously affected, that is, ship finance leasing companies and banks will bear the operation of the ship arising from high risk.
The existence of a number of risks, making financial leasing companies and banks investing in financial leasing, when worried about the ship, ship finance lease that is not conducive to the promotion of financing. To give full play to the ship financing lease financing role in shipping, they should take all measures to prevent risks.
4, ship finance, leasing risk prevention measures
The ship finance leases risks borne by the parties, some can be spread through insurance, such as war risk insurance for the ship to be effective in guarding against political risk. Who can not be spread through insurance risk, you need to take other measures to prevent or circumvent measures.
(A) risk prevention contractual arrangements
Ship finance lease transactions are through a series of contracts to complete. In a complex contract structure, the interests of the parties have their own aspirations, but also all bear a certain risk. Comprehensive contractual arrangements for proper rights and interests of the parties can be balanced with the risks that the parties can pursue to achieve their own interests, while limiting the risks manageable in order to achieve win-win.
For example, in order to effectively reduce the political risk, in the bareboat charter contract should provide for an appropriate regional context of navigation, you can prohibit a ship heading for high-risk or sensitive areas. In addition, the bareboat lease contract should specify the lessor for the financing of ship-to-ship set to buy a mortgage, while mortgage lenders in the contract should be made clear to enjoy the first ranking of the mortgage repayment. With regard to the issue of insurance of ships, in the bareboat charter contract is usually agreed, when the actual total loss occurs to a ship or constructive total loss, all of the insurance indemnity payable to the owner by the owner according to the interests of shipowners and charterers the number allocated. In the leveraged finance lease in order to protect the interests of the lender, you can at the same time the signing of loan agreements entered into an insurance assignment agreement that provides for the transfer of rights and benefits under the insurance on the lender.
To sum up, in the ship financing transactions, the contract structure, the concept of balance between rights and interests should be used to analyze costs, risks and benefits how to equitable distribution between the parties, so that the rights and obligations of the parties to obtain dynamic equilibrium.
(B) to prevent the risk of legislative proposals
Protection of shipping finance lease transactions in the interests of all parties registered to conduct effective way is through publicity, but our 'Maritime' only provides bareboat charter registration of ships has not yet set up a special registration system for leasing, it is difficult to effectively protect the ship rental people's interests. For example, a lessor bareboat charter boats in the delivery should be handled carefully to make the ship seaworthy, and to the delivery of the ship is suitable for the use of contract, and in the financing lease in the lessor does not undertake the obligation, usually the seller ship directly to the tenant were delivered.
Therefore, in the 'maritime law' should be added for the provisions for registration of the ship finance lease, clear registration of the ship finance lease conditions for registration, registration procedures, and registration and so on. The publicity and credibility through the registration and better protection of the parties, especially the financing lease in the lessor's rights. Reposted elsewhere in the paper for free download