Study On The Scope Of Arresting Ships In The Legal System Of Arrest Of Ships

With the development of international trade and internationalshipping industry, the number of the maritime litigation, in which thecourts usually need to arrest the ships, has been increasing greatly. Inmaritime litigation, in order to preserve the maritime claim of theclaimant, the courts often need to arrest the ships according to theapplication of the maritime claimants. However, there no exist a set ofinternational unification rules on the arrest of ships. So the courts usuallyarrests the ships on the basis of the relevant provisions in the existinginternational conventions or the courts’ domestic law. However, theexisting rules are not very perfect. For example, the question that whethera ship, which is under a financing lease contract or a ship managementcontract, can be arrested by the court is not very clear.This situation makethe courts often face the dilemma in the arrest of ships.Therefore, makinga clear scope of the ships that can be arrested, will be able to alleviate thedifficulties faced by the courts at the time of arresting ships. At the sametime, it will have a positive impact on the healthy development ofinternational trade and international shipping industry.In order to define the scope of the ships that can be arrested, the1952convention and the1999convention on the arrest of ships havemade their great efforts to try. But as we can see, these two conventionsjust define the scope of the ships that can be arrested in the macro view,namely the scope includes the particular ship and the sister ship. They failto make rules on these two types of ships in the micro view. As to someimportant aspects of the arrest of ships, these two conventions don’t haveany rules on it, or these rules, if they have, are not reasonable. On thedomestic law level, due to the differences of the legal system, thedomestic laws in the civil law countries are not the same with those in thecommon law countries. Therefor, one ship may be arrested in this country,but can not arrested in the other. This may cause a problem, namely, theforum shopping.Considering that, this article intends to redefine the scope ofarresting ships on the basis of combing the rules in conventions and domestic laws. The author believe that, in the macro view, the scopeincludes the particular ship and the sister ship. In the micro view, firstly,the ships, which are under financing lease contract or ship managementcontract, can be arrested by the court. While the ships, which are underthe time-charter or voyage-charter,can not be arrested. Secondly, whenthe ships which are arrested refer to the sister ships, whether these shipsare sister ships the courts should judge by investigating if the ships areowned but not controlled by the persons who are responsible for themaritime claims at the time of the ships arrested. Thirdly, the ships, whichare owned by the state, can be arrested if they are in the use ofcommercial purposes. When these ships are the national ships, they haveto be in such use both at the time the claims arose and at the time theships are arrested. When they are foreign ships, if they are in such use atthe time the claims arose, they can be arrested by the court. Finally, theships, which are in sailing or ready to sail, can’t be arrested. And thecourt should judge a whether a ship is ready to sail by investigating if ithas finished the formalities of leaving the port.Compared with the scope which the former investigates define, thescope defined by this article is different. Firstly, the ships, which areunder financing lease contract or ship management contract, can bearrested by the court. Secondly, when the ships arrested refer to the sisterships, whether these ships are sister ships the court should judge byinvestigating if the ships are owned but not controlled by the persons whoare responsible for the maritime claims at the time of the ships arrested.Thirdly, when arresting a state-owned ship, the conditions are differentbetween the national ships and the foreign ships. Finally, not only clearthat the ships, which are ready to sail, can’t be arrested, but also definethe standard that how to judge a ship is ready to sail or not.