Comparative Study On The Legal Mechanism Of Shipping Detention Between Mainland And Taiwan

With the realization of the direct ocean goods transportation between Mainlandand Taiwan, the marine disputes have risen in the meantime of the development ofeconomic and trade. Detention mechanism plays an important role in protecting thehigh-risk shipping industry as well as the foreign trade. It is inevitable that the partiesof shipping might resort to detention of ships after the dispute arises to protect theirdebt. There are lots of differences of the legal mechanism of shipping detentionbetween Mainland and Taiwan; for instance, Mainland tends to regulate this area witha single statute while Taiwan tends to issue various regulations. There are alsodifferences in when and where the application of detention can be made by thecreditor and the securities requirement. Taiwan does not have specific regulationsregarding the maritime claim, the grounds for application and the method to verify thesecurities while Mainland has detailed regulation in the Laws on Special Proceduresfor Maritime Disputes. It is these differences that resulted in the issues for parties inmaritime disputes to protect their legal right, including,(1) how to choose thecompetent court for ship detention;(2) whether the jurisdiction on detention extendsto substantial issues in the case when the jurisdiction the former is separated from thejurisdiction on the latter;(3) whether there is impact on choice of court due to thedifferent level of regulation between Mainland and Taiwan;(4) what are thedifferences in time, conditions and procedures for application of detention inMainland and Taiwan; and (4) whether and how to provide securities in different courts This dissertation will try to address these issues and put forward possiblesuggestions.There are three chapters in this dissertation. The first chapter will give a generalview on the legal mechanism for ship detention in Mainland and Taiwan. Threesections will discuss sources of law, nature in law and the causes for actions. There isno uniform code for maritime procedure, instead the regulations can be found inrelevant chapters in Maritime law, Civil Procedures Law and Enforcement Law.Mainland has a complete system mainly in Laws on Special Procedures for MaritimeDisputes with reference to relevant conventions on maritime issues. The differencescan result in some contradictions in application. The biggest differences lies in thefact that maritime claim is not the condition for the detention in Taiwan and thismechanism is categorized as action in personam while in Mainland, the maritimeclaim is the starting point of detention and the detention is categorized as action inpersonam as well as action in rem which greatly increases the chance of detention.The second chapter analyses the jurisdiction on detention in Mainland andTaiwan with three sections discussing the allocation, conflicts and resolution ofconflicts of jurisdictions. Maritime courts have the sole jurisdiction on detention inMainland. Although there is no specific court for maritime disputes, there are specificinternational maritime trade tribunals in ordinary courts trying the issues. Territorialjurisdiction is the principle both in Mainland and Taiwan, i.e. the court where the shipis has the jurisdiction on detention. This chapter analyses the conflicts in jurisdictionon detention, including the parallel lawsuits when courts in Mainland and Taiwanboth claim for jurisdiction and the recognition and enforcement of the civil judgments.In the end of this chapter, principles and methods for resolving these conflicts will begiven.The third chapter will specifically compare the detailed procedural rules ondetention between Mainland and Taiwan. Three sections in this chapter will comparethe initiation of the proceeding, the review, the verdict, the remedies and the securities.The first section will compare the scope of claimant and respondent and the ship thatcan be detained. The maritime claim is the condition for application in Mainland but not in Taiwan while there is time limit set out in regulations in Taiwan. The secondsection will compare the legal procedures for courts to verdict the detention and theenforcement and the proceedings after the detention. For example, as to the remediesfor detention verdict, reconsideration is allowed in Mainland while objection andcounter appeal is available in Taiwan for parties to protect their legitimate rights. Thethird section will address mainly the securities issues in detention.