Some Legal Problems About Of Ship Arrest

Ship arrest is one of the core issues in settling maritime disputes, common lawand civil law countries take different views on this issue.<International conventionfor the unification of certain rules relating to the arrest of seagoing ships,1952> and<Conventions on arrest of ships1999> are the respective representative of these twolegal systems, these two treaties have eliminated the difference between the two legalsystems.<Special Maritime Procedure Law of the People’s Republic of China1999>has reflected much of the <Conventions on arrest of ships1999>. Chinese legislationon ship arrest is similar to international standard. It seemed that ship arrest legislationhas come to a similar standard, since ship arrest allows jurisdiction and guarantee hasbeen accepted both in international and national level. However, the reality is not this,since the fundamental theory of the ship arrest is different, therefore, the applicationwill be different then; since the ship itself cannot be fixed in one place, characteristicssuch as personification made more conflicts in the field of ship arrest than the other.This thesis intends, both theoretically and practically, to discuss related legalissues of ship arrest. The first part will discuss the concept and the meaning of shiparrest. Common law countries reinforce action in rem, and highlight that ship arrest isthe basis for jurisdiction of material dispute. On the other hand, the civil law countriesassert that ship arrest is preservation, to enforce the award. Chinese maritime lawsreflect advantages, such as the advantage of action in rem, but also maintain thepreservation effect of civil law principle, to define ship arrest as preservations ofmaritime claims.The second part is about the legal aspects of ship arrest, such as the subject,object and the content of the ship arrest. The subject includes maritime court, claimantand respondent in maritime dispute. The object includes what can be arrested in shiparrest, i.e., the ship in dispute and other related ship in this maritime claim. Sincethere is no standard practice in different countries, therefore, what can be arrested in ship arrest has to be clearly defined for each countries, in order to eliminate falsearrest.The third part will discuss how to solve jurisdictional conflicts in ship arrest.Jurisdictional conflicts has close relation with claimant’s suing place, whereas thesuing place has close relation with the material aspect of the ship arrest. This thesiswill be confined to discuss the ship arrest and material jurisdiction, in order to solvethe jurisdictional conflicts in ship arrest. As our legislature on the issue ofjurisdictional conflict is poor, the author take the view that we have to respect theautonomous choice of the parties in dispute, rather the principle of facilitating thecourt, the principle of close link and principle of enforcement of awards. To solve theproblem on a case to case basis, to protect the right of the parties in disputeThe forth part will deal with the practical issues in Chinese ship arrest legislation.Including “live seizure”,“death seizure”,“multiple seizures”,“re-seizures” and“wrong seizure”.