On The Meaning And Effect Of Action In Rem To China Admiralty Litigation

It is reported that the number of Maritime litigation in China is the summation of that of other countries, no matter on the aspect of total number of cases or the categories of the cases. But, the effect of the Maritime litigation of China is not as obvious and wide as England. Consequently, to develop the maritime litigation and consummate the maritime trial is of great importance nowadays.The action in rem theory of England has a wide effect on China law system of preservation of maritime claims. The system of preservation of maritime claims adopts the relevant provisions in 1999 Ship Arrest Convention and refers to the basic theory of action in rem, then build a system which has Chinese characteristic and comply with the international direction. Such reference is not copy, but reasonable adoption of the theory and our material maritime litigation.The preservation of maritime claims is china is untruly action in rem for the following reasons. Firstly, it concentrates on the arrest of ship in the procedure, which is similar with the action in rem. Secondly; it is only a kind of preservation of property in common civil procedure, which is part of the action in rem. If the claimants want to realize their rights in maritime litigation, they must sue before the court after the ship is arrested. Only after the trial, they have the chance to realize the rights.This paper discusses the basic theory and the development of action in rem both in England the the United States. We can come to the conclusion that although they have the same origin, after such long period of development, they have different practice nowadays. But, their long-time practice has great significance to Chinese maritime litigation.This paper also discusses the great effect from action in rem in the view of our law provisions, theory and the practice. Attention also are paid to the problem appear in the daily practice, such as in china, how to convert an action in rem to action in personam; how to deal with a ship when it was arrested but not embraced the provisions to be judicial sailed. But such problems have been well solved in action in rem in England; therefore, it will be of great help to learn from England about the action in rem deeply.