THE DIFFERENT APPROACHES TO RECENT DEVELOPMENTS IN CHINESE AND US SHIP ARREST LAWS

Jimmy Ng and Sik Kwan Tai (Hong Kong Polytechnic University)

In the context of ship arrest law in the West and the East, namely the US and the People’s Republic of China (PRC), understanding the different approaches adopted in these countries’ maritime courts would be a topic of interest to both comparative lawyers and international traders.

The tremendous volume of shipping activities taking place in the US and China makes the two countries popular forums for ship arrest proceedings. In the US, maritime imports accounted for 42 percent of all imports in 2004. In China, the container volume exported is expected to reach 100 million TEUs (twenty-foot equivalent units) by 2010. This article argues that a through comparative longitudinal study of these countries’ court practices concerning ship arrest, it may be possible to uncover any consistent approaches taken by the maritime courts. The aim of this article is twofold: (I) to provide an overview of the developments in ship arrest law in today’s US and China, and (ii) to contribute to the comparative study of the different approaches adopted in Chinese and US ship arrest laws by filling a gap in the existing literature in this area.

The last section of the article is devoted to a review of the 2003 New Practice Direction, issued by the Supreme People’s Court, on Chinese maritime procedural law. As there are ten maritime courts in China, different interpretations of the ambiguous maritime statutes are inevitable. The discussion will focus on those approaches to ship arrest laws that were reviewed in the 2003 New Practice Direction.

This article is designed to provide helpful information to European legal professionals who are new to ship arrest law practices in the Chinese maritime courts as well as to more experienced practitioners who may need to enforce a ship arrest order in the PRC’s jurisdiction.

Key words: Ship arrest, China, maritime jurisdiction

Cite as: Jimmy Ng and Sik Kwan Tai, The Different Approaches to Recent Developments in Chinese and US Ship Arrest Laws, vol 9.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (October 2005), <http://www.ejcl.org/93/art93-1.html>.

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Contents
I Introduction
II Historical development of courts, jurisdiction, and approaches
II.A Maritime courts
II.A.1 The establishment of the US maritime courts
II.A.2 The establishment of the Chinese maritime courts
II.B Maritime jurisdiction
II.B.1 Jurisdiction of the US Congress in maritime industry
II.B.2 Jurisdiction of the US federal courts in maritime cases
II.B.3 Jurisdiction of the Chinese maritime courts
II.C Chinese and US approaches to maritime court jurisdiction
III Maritime arrest
III.A Nature and definition
III.B Approach to solving the conflicts of law in maritime arrest: The law of the flag
III.B.1 Article 3 of the Maritime Procedural Law
III.B.2 Article 276 of China’s Maritime Code
IV International developments
IV.A Maritime claims
IV.B Maritime lien
IV.C The ranking of maritime lien and mortgage
IV.C.1 China’s approach to ranking
IV.C.2 The US approach to ranking
IV.C.3 Evaluation
V Procedure
V.A In personam action
V.B In rem action
VI Approaches to new issues
VI.A Container lessors’ right of ship arrest
VI.B Freights in bank account as the subject of maritime arrest
VII Legislative reviews of the 2003 New Practice Direction
VII.A Arrest of property by the maritime courts
VII.B Arbitration agreement
VII.C Compensated losses for wrongful arrest
VII.D Auction of the arrested vessel
VIII Conclusion
Notes

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