On The Essence Of Seizure Of Ships And The Elements Of Civil Liability For Errors On Arrest Of Ships

Arrest of a ship means any detention or restriction on removal of the ship by order of a court to secure a maritime claim, which is one of important means to protect maritime claimant's legitimate rights and interests, and is the main content of preservation of maritime claims. Arrest of a ship uses extensively in the judicial practice, but the relevant regulations and laws of our country are not abundant enough, which causes confusion of arrest of ships. And wrongful arrest takes place occasionally. On the basis of international conventions on arrest of vessel, this text discusses the relevant provisions of 'Special Maritime Procedure Law of the People's Republic of China' and puts forward my own opinion.Vessel is a kind of property and should be the subject matter of preservation means for any civil claims. While once the vessel that is means of transport is arrested, can damage interests of the third person usually. So the right of arrest is a kind of extraordinary remedy and is given to the claimants cautiously. In chapter one of this text the author analyses the kinds of claims in respect of which a ship may be arrested and points out some unreasonable and faulty ingredients in China Maritime Code concerning maritime claims which is on the basis of international conventions on the arrest of a ship and other countries' domestic law and the provisions of 'Special Maritime Procedure Law of the People's Republic of China'.The arrested ships means the ships that is arrested as the subject matter of preservation of maritime claims, which is the focus of the arrest of a ship and is one of the essence conditions of an application for the arrest of a ship and involves the permission of application for arrest of a ship. So the international conventions and domestic legislation stipulate the range of arrested ship as an important content. In chapter two of this text the author has discussed emphatically the range of arrested ships. First of all, on the basis of maritime claims in respect of which a ship may be arrested, the author divides the range of arrested ships into two kinds: arrest of a ship for maritime claims in rem and arrest of a ship for the credit maritime claims. Secondly, the author analyses the types of ships, which involve in the range of the arrested ships, such as the ships in respect of which the maritime claim is asserted;sister ships and associated ships etc. During the process of discussing the ship in charge, combining legislative purpose and relevant theory, the author analyses the range of the owner and demise charter in 'Special Maritime Procedure Law of the People's Republic of China' and draws the conclusion. While discussing the sister ship and associated ship, combining the foreign latest cases, the author proposes some suggestion about the amendment of our domestic laws and rules. Finally, the author explores more on the problem that the rights of rearrest and multiple arrest. Once the ship was mistakenly detained, the owner or the operator or the charterer will suffer losses from this deeds, including the owner of the cargo loaded. In chapter three combining relevant international conventions and rules of wrongful arrest in different countries, the author stresses the legal nature of wrongful arrest with the tort theory of Civil Law. This chapter also deals with the conditions on which arrest of a ship could be considered as wrongful arrest. Finally, the author discusses the civil liability and compensation which wrongful arrest will arise.