System Of China's Arrest Of Ships

The system of the arrest of ships is already adopted by most of the countries in the world as an important procedure to resolve maritime disputes. However, the two major law systems, namely, the common law system and the civil law system, hold very different attitudes in this field. Therefore, the whole international community has struggled to establish a uniform system for the arrest of ships for many years, giving birth to a series of international conventions, from the International Convention Relating to the Arrest of Sea -Going Ships, 1952 (hereafter referred as 1952 Convention on Arrest of Ships), to the latest International Convention on Arrest of Ships 1999 (hereafter referred to as 1999 Convention on Arrest of Ships). All the effort which has been made has succeeded to some extent in narrowing the discrepancy between the two law systems. China, with the implementation of the Special Maritime Procedure Law of the People's Republic of China, 1999 (hereinafter referred to as the Maritime Procedure Law), has basically established the rules concerning the arrest of ships in concord with international convention in legislative and judicial aspects. Although the rules as to arrest of ships seems to be inclined to be identical, owing to the differences in theoretical basis, it still varies in aspects of specific procedure and practical 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 ship is more complex than those in other areas, and therefore, the analysis of its relevant reasons and the settlement thereof have become a hot topic in both practical and theoretical circles.Chapter 1 of the article focuses on the establishment of China's legal systems in ship-arrest, which has learned from the merits of ship-arrest rules in different law systems and is greatly influenced by relevant provisions in international conventions. With reference to the legal relationship pertaining to the subject in arrest of ships, Maritime Procedure Law adopts the advanced ideas in civil procedure law, which highly values the principle of party autonomy that the concerned parties should play a principal role such aspects as initiating the ship-arrest procedure, making an option of the ship-arrest type and collecting the relevant evidence. Chapter2 and chapter3 lay the emphasis on the analysis of the questions that based on which can the maritime claims be raised, and that what kind of ships can be arrested. For a long time, it is a haunting question that which mode, the "open list" or the "closed list", should be adopted for the maritime claims. Now, with the prevalence the so called one-ship company, it has become a hot spot in the academic circle that if there is a need to expand the limits on which the ships can be arrested.In chapter 4 of this article, , the author pays attention on the issue that what role the maritime courts should play in the course of ship-arrest procedure. Some effort has been made in this chapter to compare the maritime procedure and the general civil procedure, and to elaborate the issues that if there is necessity of the examination by the maritime court as well as that if the court should undertake the risk of damage or loss occurring to the ships while they are under arrestment.Chapter 5 focuses on one of the most specific methods of arresting ships, usually known as "live arrest", which, while serving as a relevantly flexible method, is still far from satisfactory in terms of its provision. In this chapter, the author does some analysis of the necessity of the existence of the "live arrest" method, and come up with some tentative ideas based on the study of the current legal provisions and practice.Chapter 6 is relevant about the difference between the re-arrest of the same ship and repeated arrest of ship. The 99 Special Maritime Procedure Law only give provisions for the position concerning the re-arrest of ships but not that of the repeated arrest of ships, which easily leads to the controversies in practice. In this chapter, after referring to the relevant provisions of the common-law countries and that in the international treaties, the author analyses some controversial provisions in China, and advances some not so well conceived thoughts for this regard.The chapter 7 focuses on the problem of providing the maritime guarantee by dividing it into two aspects, namely, the guarantee provided by the maritime claimer (referred to as 'guarantee for arresting the ship')and that by the person against whom the application for maritime preservation is made. After elaborating on the characteristics of these two kind of guarantees, together with referring to the position in the common law family and that on the international conventional, the author made an analysis on this issue, with an emphasis on the problems that which kinds of modes can be adopted and how should the quantity be determined.