Study On The Jurisdiction Of Ship 's Seizure And Maritime Cases

Arrest of ships is one of the most characteristic legal systems in maritime field. It not only has the function which limits the defendant dispose the specific property, but also has the function which provides an assurance or creates a condition for the plaintiff forum shopping or arbitration shopping. Anglo-American law system and continental law system once had a huge difference in this point, whether a country’s court can obtain the jurisdiction of the maritime disputes by arresting the ship concerned the case, due to the different understanding of the nature of arrest of ships and jurisdiction. In order to coordinate the differences between the two law systems, the International organizations have made some convention to unify the legislations in this field. Arrest of ships1952and1999are represents of these conventions. At present, the national legislations and international conventions basically have reached a consensus:under normal circumstances, a court which has arrested a ship may exercise the substantive jurisdiction of the maritime case. However, exercising substantive jurisdiction should be limited by some legal principles, such as "significant connection","party autonomy","forum non convenience "and so on.This article combines with the international conventions, legislation situation of the two legal system’s countries, combing the history and development of the relation between arrest of ships and substantive jurisdiction of cases, evaluating and analyzing the legislative situation of our country and putting forward some suggestions on perfecting our country’s legal provisions. This article is divided into six parts:The introduction part, to introduce the research status of the issues of arrest of ships and maritime cases’ substantive jurisdiction and the purpose of writing this article.The first chapter discusses "the general relation between arrest of ships and substantive jurisdiction of maritime cases". In the issue, the definition, functions and procedure’s independence of arrest of ships is discussed at first. On this basis, this article discusses different processing about the relation in the legislation of the two legal systems’ main countries, as well as the trend that the difference between the legislation of the countries of the two legal systems is gradually decreasing.The second chapter discusses "the limiting factors that a court which has arrested a ship exercises substantive jurisdiction". There are mainly four aspects of limiting factors: Firstly, a court which has arrested a ship exercises substantive jurisdiction is limited by the" parties’jurisdictional agreement"; Secondly, a court which has arrested a ship exercises substantive jurisdiction is limited by the "jurisdiction clause of B/L"; Thirdly, a court which has arrested a ship exercises substantive jurisdiction is limited by "forum non convenience"; Fourth, a court which has arrested a ship exercises substantive jurisdiction is limited by the "exclusive jurisdiction".The third chapter discusses the "the conflicts of maritime cases’substantive jurisdictions caused by arresting ships and its solution". The two main types of jurisdiction conflicts in the maritime judicial practice, the conflict of jurisdictions caused by "repeated litigation" and "dueling lawsuits", are mainly discussed, as well as the solutions to the jurisdiction conflicts.The fourth chapter discusses "perfecting Chinese maritime legislation and juridical practice of arrest of ships and maritime cases’jurisdiction". It mainly targets the problem caused by arresting ships as a sufficient condition of obtaining case jurisdiction, as well as the problem of conflicts between the jurisdiction caused by arresting ships and the other country’s jurisdiction.The conclusion summarize the article, and the writer also reiterate the views briefly.