Some Legal Issues In Systerm Of Arresting Ship

Maritime Procedure Law of the People's Republic of China (hereinafter referred to as the Maritime Procedure Law), adopted by the Standing Committee of PRC on 25 December 1999, for the first time gives a systemic and complete enactment of the rules relating to ship arrest. The legal system of ship arrest rules is at the forefront area of and occupies an important position in the Maritime Procedure Law, and the research of which has both practical and theoretical meanings. In this article, the writer has discussed some important aspects of ship arrest rules including the characteristics, scope and manners of arresting ships against the background of the international ship arrest rules and China's real situation. Through the method of comparative law, the comparison of ship arrest rules with civil procedure, and reference to the scholastic writings and newest maritime judicial practice of both China and abroad, the writer presents his own opinions on the specific substantial and procedural rules and points out the existing defects of the Maritime Procedure Law.China's legal system of ship arrest, belonging to preservation of maritime claims, is greatly influenced by the ship arrest rules of the international conventions and those of continental countries. The rules of action in rem of Britain, which are characteristic of the common law countries, also exerts great influence. The Maritime Procedure Law has adopted many specific rules of action in rem, which have been proved correct in theory and feasible in practice. But this adoption does not the change the legal nature of China's maritime procedure, which is still action in personam and presents no conflicts with the civil procedure.The scope of ship arrest has presented many difficulties in judicial practice due to the fact that a ship is a special subject matter of many co-existing and even conflicting legal relations. Take the charterparty ship as a example, there are two different opinions both having its shortcomings: one is that all such vessels can not be arrested, while the other all such vessels can be arrested as long as sufficient counter-security is provided. The writer thinks the key point is who isresponsible for the damages. If the shipperowner is responsible, the ship under charterparty can be arrested.There are two manners of arresting a ship, i.e. "live arrest" and "dead arrest", both of which have its strongpoints and demerits. And, they should be allowed to transform from each other if some requirements are met. Moreover, though there is no specific provision in the Maritime Procedure Law, the repeated arrest of ships is in need in practice and is not in violation of the legal principles.The ship arrest rules are not complete without providing for auction of ships and satisfaction of claims, which are the lasting proceeding in course of ship arrest and in relations to how to auction a ship and how to distribute the proceeds. For the first time, these two major systems are included in the ship arrest rules. Based on the relevant provisions of the Auction Law of the PRC, the Maritime Procedure Law also contains detailed provisions in respect of the procedure for auction of ship reflecting the openness, fairness and standardization if auction of ship. The procedure for debts registration satisfaction is different with the civil procedure.The questions referred above are just a general survey of the ship arrest system, and many important topics are not included in this article due to the limited pages. The writer think it be necessary to enact the ship arrest rules which meets the actual needs of Chinese maritime judicial practice and accords with international maritime handling principles in promoting shipping and foreign trade, strengthening reform and opening-up policies, protecting national interests, and embodying the status of China as a big ocean state.Zhao PeiGengDirected By YaoHongXun...