A Study On The Comparison Between The Regimes For Arrest Of Ships In China And South Africa

In maritime judicial practice, one of the problems the claimants are most concerned of is how to seize the property of the defendants as the pre-judgment security for claims. Ships are always of great value, which makes them always the best choice of claimants, so after a long-time maritime judicial practice, arrest of ships has become one of the most typical and important measures to provide pre-judgment security. This topic itself seems to be out-of-date, however, with the promulgation of The Maritime Procedure Law of the People's Republic of China in the year of 1999, the regime for Arrest of ships in China has stepped into a new era. Some particular questions in the ship's arrest have been adjusted and updated to the time, while some remain controversial and some are left aside. All of these questions should be concerned and the study into the same deemed as essential.China has a fairly short history in the regime for ship's arrest. Meanwhile, based on our own maritime judicial practice and that of other countries and international conventions as well, China has established a basically integrated regime for ship's arrest of it's own characteristics. South Africa is a mixed jurisdiction with a legal tradition which partly derives from Roman Dutch law, partly from English law. The maritime law has been particularly influenced by English law. As a blend primarily of these two legal concepts, South African law is a living and working example (and perhaps the best modern example) of the synthesis between the civil and the common law. In order to facilitate and develop a better regime for ship's arrest in our country, this article attempts to research on the comparison between the regimes for ship's arrest and the judicial practice in the two countries on a preliminary scale, by concentrating on the relationship and difference of the core items of the regimes for ship's arrest in the two countries, i.e., The form of proceedings,applications may be made for the arrest of ships, scope of ships that may be arrested, security and counter-security for arrest of ships, wrongful arrest and auction of attached ships etc. In addition , the article will have a discussion on the risks that the ships in our country are easy to be arrested in South Africa and put forward some proposal concerned therewith how to avoid it.The full text falls into six chapters. In the fore-words, the classification and definition of ship's arrest, and the outline of the regimes for ship's arrest in China, South Africa and relevant international conventions is briefly introduced; The first chapter concentrates on the legislation and maritime jurisdiction in the two countries; Chapter two shows great emphasis on the introduction and comparison between the forms of proceedings of ship's arrest in China and South Africa via quotations of a large number of original and domestic articles. In chapter three ,because maritime claim is the key of ship arrest and maritime jurisdiction ,so this chapter gives a particular introduction on the definition of maritime claims in China and South Africa; 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., so chapter four looks into the scope of ship arrest in details, especially in the complete introduction of the scope for ship's arrest in South Africa, this articles dwells upon the"Arrest of sister ships and associated ships"with specific illustrations; Chapter five and Chapter six involves the questions about security , counter-security for arrest of ships, wrongful arrest and auction of attached ships respectively. With comparison to the relevant regimes in South Africa, this article argues with some scholars and puts forward some pieces of ides for stipulations of law making in the future.