A Study On The Liabilities And Damages For Wrongful Arrest Of Ships

The responsibilities and damages for wrongful arrest of ships are mainly regulated by Maritime Procedure Law and its judicial interpretation. Maritime Procedure Law provides for the general requirements of the preservation for maritime claims, the types of maritime claims, courts have jurisdiction and arrest procedures. The judicial interpretation makes details of the above areas.Since the above legal instruments does not make concrete regulations for the responsibilities and damages for wrongful arrest of ships and some of the provisions are not reasonable, bring an action for wrongful arrest is relatively easy and is quite likely supported by the court. But Article 20 of the Maritime Procedure Law are interpreted differently by different admiralty courts in China, which damages the uniformity and predictability of judicial results.Different countries have different views on the responsibilities and damages for wrongful arrest of ships. Though the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships and the International Convention on Arrest of Ships mention the wrongful arrest of ships, they both leave responsibilities and damages to the national laws of contracting parties. Generally the no-fault liability is adopted in the civil law countries, which means that the offender shall be responsible for his act whether not he has fault. Fault responsibility is applied 2in the countries or regions of the Anglo-American legal system. No-fault responsibility is not in line with China’s legal system for that No-fault responsibility is only applied in special circumstances. The parties involved in the ship arrest have almost equal bargaining power and there is no reason to give any one of them more protection.Some Chinese scholars defined the wrongful arrest of ship as “special tort” or “procedural tort”. But they are not regular concepts in civil law. In discussing the damages for wrongful ship arrest, it is more reasonable to take it as just tort. Therefore, the analysis of wrongful ship arrest shall not go away from general property preservation and tort.Is it not easy in both substance and procedure to require the result of wrongful arrest and the maritime claim. Even the International Convention on Arrest of Ships just require the court hearing the wrongful arrest case to suspect in procedure but not obey the result of the maritime claim. Moreover, there is no suit to merger since the maritime claim is not always resolved by lawsuit.When deciding what kind of arrest may constitute the “wrongful arrest”, mala fides(bad faith) or gross negligence is required in Anglo-American legal system while the civil law countries take the result of maritime claim as the base for deciding. However, the way taken by the civil law countries has no enough grounds. A Chinese scholar suggests that different standard shall be applied to decide whether or it is wrongful in maritime claims and the ship arrest disputes.Besides those who the arrest is against, the interested parties shall also be compensated by the applier for ship arrest. But who are the interested parties is not clear in legislation and practice. The counterparties of the interested parties in general property preservation are called outsiders, the scope of which is also unclear. One of ways to decide if someone is the outside is to consider if his act meets the requirements of tort. This method could also be applied in deciding who belongs to interested parties in wrongful arrest.It is provided in the judicial interpretation of the Maritime Procedure Law that the loss caused by wrongful arrest are including the maintaining expenses, loss for detention and fees for guaranty, which narrows the range of loss regulated in the Maritime Procedure Law. The loss that is not one of those regulated in the judicial interpretation shall also be compensated according to tort law.The maintaining expenses shall be caused directly by the wrongful arrest. The calculation method of the loss for detention is made clear in the Rules on Hearing the Disputes on Ship Collision and Touch. That method could also be adopted in the calculating for the loss of detention in wrongful arrest of ships and other related case.