Study Of Ship Arrest Law System

Arrest of ship, which is commonly regarded to be an important procedure to settle the maritime disputes and creates the jurisdiction for the courts worldwide, is always attract the common attention of the shipping and law circles in home and foreign countries. As to maritime law, the right would mean nothing if it could not be complemented and guaranteed by the effective legal procedure. In the western countries, much attention is paid to the nature of the fluidity on the ship and the risk of failing to satisfying the maritime claims. As a result, the perseverance of maritime claims prior to the commencement of the suit has been established in order to satisfy the requirements of the maritime jurisdiction and international shipping.In China, it has not taken long time to develop and establish such a maritime legal system. The Regulation for Arrest of Ship in 1986 acts as the important signal of forming such a system. In P.R.C. Civil Procedure of 1991 the provisions of preservation of property prior to the suit created the legal base for the arrest of ship prior to the suit. Henceforth, the Regulation for Arrest of Ship of 1994 issued by the Supreme Court, as the judicial interpretation, established the material provisions for arrest of ship. The Maritime Procedure Law of People's Republic of China (hereinafter referred to as the "Maritime Procedure Law", MPL), which was enacted at the 13th meeting of the Standing Committee of the 9th session of the National People's Congress of China (NPC, legislator) on 25th December 1999 and implemented on 1st July 2000, reflected the characteristics of maritime actions and arrest of ship.This article provides for a detailed study on the different understanding regarding the elementary nature of arrest of ship under different legal systems worldwide, and devotes to material provisions in respect of arrest of ship and relevant maritime security in maritime procedure law. Furthermore, the author provides an analysis of the risks which the state-owned shipowner will encounter in arrest practice, and try to find the ways to avoid such risks.This article consists of four chapters.In chapter 1 the author carry out the detailed description and analysis of the different understanding regarding the nature of arrest of ship under different legal systems worldwide. In the meantime, this article also refers to our understandingunder Chinese legal system. Chinese law insisted that the subject in legal relation should be person (including legal person), so our law circle hold that arrest of ship falls into the category of property preservation.Chapter 2 focuses on the material provisions regarding the arrest of ship under Maritime Procedure Law. In the MPL, China has adopted the closed list of claims in the Arrest Convention 1999. This contrast with uncertainty of the current Arrest Regulations 1994 which provided a generic description of a 'maritime claim', followed by a non-exhaustive list of examples. The MPL mirrors the provisions of the Arrest Convention 1999. In most cases, arrest is only possible if, at the time of the arrest, the ship to be arrested is owned or demises chartered by the respondent. The so called 'living arrest' is recognized by the MPL. After ordering to preserve a ship, the maritime court may, with the consent of the maritime claimant, allow continued operation of the ship by means of restraining disposition or mortgage of the ship.Chapter 3 devotes to the general provisions of the other relevant maritime security in MPL. MPL, based on Arrest Regulations 1994, provided for more detailed procedure of auction of arrest. For the first time the MPL provided the specific on the arrest of cargo, bunkers and necessaries carried on a ship in order to obtain security supplement the current general provisions allowing for pre -litigation conservatory measures. New powers have been granted to the Courts to make mandatory orders requiring a party to do or to refrain from doing an act., backed up by the sanction of a fine imprisonment. (Equivalent to the old 'M...