Some Legal Research In The Arrest Of Ship

The arrest of ships is already adopted by most of countries in the world as an important procedure resolving maritime disputes; however, there are considerable differences about arrest of ships between the common law system and civil law system. Therefore, the international community struggles to establish a uniform international convention about arrest of ships for many years. International Convention Relating to the Arrest of Sea-Going Ships, 1952 (Hereinafter referred to as 1952 Convention on Arrest of Ships) and The International Convention on Arrest of Ships 1999(Herein after referred to as 1999 Convention on Arrest of Ships) are both the compromise reached by mutual concessions between these two law systems, which have narrowed down the discrepancy between them in terms of arrest of ship in a gradual way. Owing to the difference in theoretical basis, the arrest of ship varies in aspects of specific procedure, characteristic and operation between these two legal systems. Moreover, ships have certain peculiarities such as subjectivity and mobility. As a consequence, the conflicts of jurisdiction pertaining to arrest of ships are more complex than those in other areas. It is shown that Special Maritime procedure Law of the People's Republic of China, 1999 refers to the regulations of International Convention on Arrest of Ships 1999 pertaining to arrest of ship and consequently China has basically established the rules as to arrest of ship in concord with international convention in legislative and judicial aspects. But the prescription in law is still so general that there have many the going problems in practice. Therefore, in this domain it is necessary to consummate the legal mechanism ulterior to cause the consistency in the system of the arrest of ships in the world, special in restricting the jurisdiction properly in base of confirming the jurisdiction of the arrest of ships, then to correspond the conflict in the jurisdiction of the arrest of ships. At the same time, to extend the foreign efficacy, protect the right of the maritime plaintiff, and lessen the possibility of abusing the right. And then the analysis of its relevant reasons and the settlement of it have become a hot topic both in practical and theoretical circles.This thesis analyses the legal research in the arrest of ships both in practical and theoretical, and utilizes the different aspects which are include the maritime law, code of civil law, contract law, international private law, international public law, and the so on. This thesis contains four chapters.In chapter 1, the writer makes a thorough analysis of the framework of character and merits of ship arrest rules base on different historical background, basic theory as to arrest of ship rules. Generalized the developing history in common law system and civil law system, In the former law system, the rules are based on action in rem and lay more stress on obtainment of Abstract jurisdiction through arrest of ship, while in the latter law system, the rules deems arrest of ship as a means for security, therefore, Reach the two Conventions on Arrest of Ships in 1952 and 1999 and China's legislation corresponds with and reference to the two International Conventions. with The writer holds the view that international rules about arrest of ship are on the development of unification at the general level.Chapter 2 focuses on the legal relationship pertaining to the subject in arrest of ship, emphases on reaching the arrest object in maritime claim. The arrest of ships in practice still not unify at present. So in order to avoid to applying the wrongful arrest the ship, it is important to make sure the provisions of a certain country before apply to arrest the ship.In chapter 3 analyzes the conflict of jurisdiction for arrest of ship and in pursuit of some possible ways to settle these conflicts. It can be transformed between jurisdiction for ship arrestment and substantive jurisdiction Ship arrest location is most frequently used in practice, since it is favorable for the plaintiff to conduct forum shopping. The thesis discusses the reason and restrict of the forum shopping, The writer holds the opinion that the law for settling the conflict the jurisdiction for ship is behindhand, and proposes some feasible way in some aspects to settle the conflict of jurisdiction for arrest of ship, which is putting over emphasis on state sovereignty, should be given up and it is also a way to exercise sovereignty when the domestic court refuses its jurisdiction if the court is not an appropriate forum. Finally, this chapter presents concise introduction and evaluation of certain viable principles and measures in response to lispendens, i.e. doctrine of forum non conveniences, first-seised approach, stay action, anti-suit injunction and recognition prognosis. And it is significance for settling the conflict of the jurisdictions.In chapter 4 is relevant with problems encountered by people in practice when they carry out the specific procedure in ship arrest against the background of China's legal system. And analyses repeated arrest of ship and re-arrest of the same ship, the "live arrest" and "dead arrest", the foreign effectiveness of the security and counter-security, the wrong in arrest of ships, and puts up the proposes for the china's law in arrest of ship rules, intent to perfect the law of china in the arrest of ship.