final decision, the environment may already have suffered irreparable damage In terms of specialization, however, the Chinese approach may do a better job than that of the US, for two reasons. First, unlike in China, there are no special courts in the Us federal system to hear maritime matters only. Second, there are relatively few judges in the US who are specialized in maritime law. Christie Helmer, who authored the US part of Arrest of Ships. [74 ] observed that"if a judge who hears an admiralty case has expertise in the area, it happens merely as a matter of hance.. few lawyers learn to be admiralty lawyers. And, because judges are or dinarily selected or elected from practicing lawyers, the number of judges who have an understanding of the shipping industry or of admiralty law are relatively few. 75 III Maritime arrest IIL. A Nature and definition In the US, a vessel is arrested only when a maritime lien is being foreclosed. This type of lawsuit is known as an in rem action: the vessel is considered a defendant. [76] In Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims[77](hereafter"Admiralty Rule") the ship arrest procedure is laid down, and thus a vessel arrest in the US is sometimes referred to as a"Rule c procedure In China, the procedures for the arrest of vessels are laid down in the Maritime Procedural Law Previous laws and practices were consolidated and provisions of the International Convention on the Arrest of Ships, 1999(hereafter 1999 Arrest Convention)were incorporated. [78] In the 1999 Arrest Convention, the term "arrest "is defined as"any detention.. of a ship by order of a court to secure a maritime claim "The 1999 arrest convention includes neither the seizure of a ship in execution of a judgment[79] nor arrest for criminal or administrative purposes, as this is reinforced by the provision in Article 8(3)[80 However, the scope of arrest itself is more broadly defined in Article 1(2)of the 1999 Arrest Convention than in the 1952 Arrest Convention. [81] For example, judging from the drafting process, some legal scholars from civil-law jurisdictio seem to believe that the new definition of arrest of the 1999 arrest Convention should cover Mareva injunction issues. They pointed out that the Lisbon draft[ 82] added the phrase " as a conservatory measure"with the aim of explicitly bringing Mareva injunctions into the definition so as to prevent the arrest of a ship followed by a Mareva injunction). Although the phrase"as a conservatory measure"was removed by the Drafting Committee at the suggestion of the UK delegation on the basis that it was meaningless in common law, it was generally accepted by UK lawyers that it would be inconsistent to allow the Mareva injunction(a"freezing injunction"under the new Civil Procedure Rules) in addition to a maritime arrest. [83 In China, the Maritime Procedural Law treats an arrest as a means of obtaining security for
final decision, the environment may already have suffered irreparable damage. In terms of specialization, however, the Chinese approach may do a better job than that of the US, for two reasons. First, unlike in China, there are no special courts in the US federal system to hear maritime matters only. Second, there are relatively few judges in the US who are specialized in maritime law. Christie Helmer, who authored the US part of Arrest of Ships,[74] observed that “if a judge who hears an admiralty case has expertise in the area, it happens merely as a matter of chance … few lawyers learn to be admiralty lawyers. And, because judges are ordinarily selected or elected from practicing lawyers, the number of judges who have an understanding of the shipping industry or of admiralty law are relatively few.”[75] III Maritime arrest III.A Nature and definition In the US, a vessel is arrested only when a maritime lien is being foreclosed. This type of lawsuit is known as an in rem action: the vessel is considered a defendant.[76] In Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims[77] (hereafter “Admiralty Rule”) the ship arrest procedure is laid down, and thus a vessel arrest in the US is sometimes referred to as a “Rule C procedure”. In China, the procedures for the arrest of vessels are laid down in the Maritime Procedural Law. Previous laws and practices were consolidated and provisions of the International Convention on the Arrest of Ships, 1999 (hereafter “1999 Arrest Convention”) were incorporated.[78] In the 1999 Arrest Convention, the term “arrest” is defined as “any detention … of a ship by order of a Court to secure a maritime claim.” The 1999 Arrest Convention includes neither the seizure of a ship in execution of a judgment[79] nor arrest for criminal or administrative purposes, as this is reinforced by the provision in Article 8(3).[80] However, the scope of arrest itself is more broadly defined in Article 1(2) of the 1999 Arrest Convention than in the 1952 Arrest Convention.[81] For example, judging from the drafting process, some legal scholars from civil-law jurisdictions seem to believe that the new definition of arrest of the 1999 Arrest Convention should cover Mareva injunction issues. They pointed out that the Lisbon draft[82] added the phrase “as a conservatory measure” with the aim of explicitly bringing Mareva injunctions into the definition (so as to prevent the arrest of a ship followed by a Mareva injunction). Although the phrase “as a conservatory measure” was removed by the Drafting Committee at the suggestion of the UK delegation on the basis that it was meaningless in common law, it was generally accepted by UK lawyers that it would be inconsistent to allow the Mareva injunction (a “freezing injunction” under the new Civil Procedure Rules) in addition to a maritime arrest.[83] In China, the Maritime Procedural Law treats an arrest as a means of obtaining security for
maritime claims and by its very nature, as a preservative measure [84 Therefore, an"arrest"can e any detention or restriction of the removal of a ship by order of the court in order to secure maritime claims.[85 Under the Chinese Maritime Procedural Law, a ship under arrest may continue to trade, but only subject to the consent of the maritime claimant. [86] In this respect, the ese approach is very similar to that of the US law, a vessel need not be kept inactive while arrested. [87 A court order may ordinarily be obtained to allow the vessel to load or unload cargo or to shift berths. [88] However, in order for a US federal district court to retain jurisdiction over a vessel, the vessel or some form of security posted must remain in the district. [89 The Chinese maritime Procedural Law limits the grounds for ship arrest to those maritime claims listed in Article 21. The only three exceptions to Article 21 are stated in Article 22 and concern the enforcement of a judgment, an arbitration award or other legal documents. [90] Ship arrest actions on the grounds of other legal documents include Law of the Territorial Sea and the Contiguous Zone, 1992(Article 8): [91] Maritime Traffic Safety Law 1983(Article 19): [92] Port State Control(PSC)programmes for the prevention of maritime accidents and pollution at Although US maritime legal scholars generally conceded that the term"vessel"is not susceptible to a precise definition, they have found the definition of a" Jones Act vessel "developed in Bernard v. Binnings Constr. Co [93] an acceptable one. The Jones Act loosely defined a vessel as a floating structure for"transportation of passengers, cargo or equipment from place to place across navigable waters. 94 Since the 1950s, the Us Supreme Court has begun the process of liberalizing the definition of"vessel for purposes of the Jones Act One of the elusive questions in US maritime law is how to determine whether a vessel is"in navigation The landmark US Supreme Court case broadening the definition of vessel is Butler v. Whiteman. [95] In Butler, the Supreme Court held that the question about the status of the vessel is one of fact and its determination is to be left to the finder of the facts(whether a court or a jury).[96]The Supreme Court reversed previous decisions that the trial court had taken the issue from the jury, usurping its function, and had decided the status of the vessel as a matter of law. [97 Since then, the absence of Coast Guard certification no longer is a major factor in determining the status of the vessel. [98] Hence, in Latus v. United States, [99] the Court found that the definition applied when an accident occurred before all the repairing work on a vessel was complete, and at a time when the ve was not in navigation. [100] In contrast, the Chinese definition of a"vessel"is relatively simple, as it adopts the concept from the 1999 Arrest Convention. In Article 3 of Chinas Maritime Code, [ 101] a ship is classified on the basis of ownership, where "ships"are referred to as " sea-going ships and other mobile units, to be used for military purposes or public service. The Chinese approach looks to the"purpose "of the mobile unit to determine the status of the "ship, and such a line of methodology would predictably confront the problem faced by the Fifth Circuit Court in Ducrepont v. Baton Rouge Marine Enterprises in the US [102] The barge in Ducrepont was designed and constructed as a cargo vessel but had al ways been used as a floating platform for the
maritime claims and, by its very nature, as a preservative measure.[84] Therefore, an “arrest” can be any detention or restriction of the removal of a ship by order of the court in order to secure maritime claims.[85] Under the Chinese Maritime Procedural Law, a ship under arrest may continue to trade, but only subject to the consent of the maritime claimant.[86] In this respect, the Chinese approach is very similar to that of the US. Under US law, a vessel need not be kept inactive while arrested.[87] A court order may ordinarily be obtained to allow the vessel to load or unload cargo or to shift berths.[88] However, in order for a US federal district court to retain jurisdiction over a vessel, the vessel or some form of security posted must remain in the district.[89] The Chinese Maritime Procedural Law limits the grounds for ship arrest to those maritime claims listed in Article 21. The only three exceptions to Article 21 are stated in Article 22 and concern “the enforcement of a judgment, an arbitration award or other legal documents.”[90] Ship arrest actions on the grounds of other legal documents include: Law of the Territorial Sea and the Contiguous Zone, 1992 (Article 8);[91] Maritime Traffic Safety Law 1983 (Article 19);[92] Port State Control (PSC) programmes for the prevention of maritime accidents and pollution at sea. Although US maritime legal scholars generally conceded that the term “vessel” is not susceptible to a precise definition, they have found the definition of a “Jones Act vessel” developed in Bernard v. Binnings Constr. Co.[93] an acceptable one. The Jones Act loosely defined a vessel as a floating structure for “transportation of passengers, cargo or equipment from place to place across navigable waters.”[94] Since the 1950s, the US Supreme Court has begun the process of liberalizing the definition of “vessel” for purposes of the Jones Act. One of the elusive questions in US maritime law is how to determine whether a vessel is “in navigation.” The landmark US Supreme Court case broadening the definition of vessel is Butler v. Whiteman.[95] In Butler, the Supreme Court held that the question about the status of the vessel is one of fact, and its determination is to be left to the finder of the facts (whether a court or a jury).[96] The Supreme Court reversed previous decisions that the trial court had taken the issue from the jury, usurping its function, and had decided the status of the vessel as a matter of law.[97] Since then, the absence of Coast Guard certification no longer is a major factor in determining the status of the vessel.[98] Hence, in Latus v. United States,[99] the Court found that the definition applied when an accident occurred before all the repairing work on a vessel was complete, and at a time when the vessel was not in navigation.[100] In contrast, the Chinese definition of a “vessel” is relatively simple, as it adopts the concept from the 1999 Arrest Convention. In Article 3 of China’s Maritime Code,[101] a ship is classified on the basis of ownership, where “ships” are referred to as “sea-going ships and other mobile units, but … not … ships or craft to be used for military purposes or public service.” The Chinese approach looks to the “purpose” of the mobile unit to determine the status of the “ship,” and such a line of methodology would predictably confront the problem faced by the Fifth Circuit Court in Ducrepont v. Baton Rouge Marine Enterprises in the US.[102] The barge in Ducrepont was designed and constructed as a cargo vessel but had always been used as a floating platform for the
purpose of cleaning, repairing and fleeting barges, and had never been moved from its original location. [103 The Court in Ducrepont found that, unless the current use approach was adopted to determine a vessel status based on the original purpose test would produce an"absurd result[104] fter the Ducrepont case, other federal circuit courts held that if a barge is used(primarily)as a work platform, then it should not retain its vessel status under the Jones Act. [ It should be noted that, unlike most other socialist countries, China has adopted a new political approach to its ship arrest law. The Chinese courts have extended the definition of ship arrest to cover the arrest of military and public ships when they are engaged in commercial activities. [106 Most socialist countries, in accordance with their political philosophy, adhered to the doctrine of absolute immunity, [107] and still do. 108] According to these countries, all acts of the state are jure imperii, and all state ships perform an exclusively public service even if they are engaged in operations that in capitalist countries quality as commercial. [109]A. N. Yiannopoulos, law professor of Tulane University, has stated that Western nations tend "to rest the distinction between commercial and non-commercial vessels on a factual-empirical basis rather than the disputed distinction between acts of jure imperii and jure gestionis. A vessel is commercial regardless of ownership or possession by the state, when it is engaged in the carriage of goods and persons, that is, when it performs the same function as a privately owned commercial essel. [110] Ill. B Approach to solving the conflicts of law in maritime arrest: The law of the flag If a claim against a shipowner is initiated in a country other than the country of the ships egistration and the claimant eventually seizes the ship in a third country, then it is necessary to determine which country's law applies. Related issues may further include the claimants right is secured by maritime lien and its priority over other claims. As the ranking of maritime liens differs from country to country, such problems involving conflicts of law become major issues to consider when"jurisdiction shopping. [lll Since the last two decades of the nineteenth century, attempts have been made to unify the rules relating to conflicts of law. Partial unification was achieved through the 1952 Arrest Convention, which suggested the law of the flag as a possible solution, that is, to apply the law of the country where the ship is registered. The scope of application of the 1952 Arrest Convention is determined in its Article 8(1), which states: " The provisions of this Convention shall apply to any vessel ing the flag of a Contracting State in the jurisdiction of any Contracting State. Any contracting state, however, may also arrest a ship flying the flag of a non-contracting state either for the maritime claims enumerated in Article I or for any other claim for which the law of the contracting state permits arrest. [112] Domestic law rather than the provisions of the Convention apply, however, if the ship is flagged in the same country where the claimant has his habitual residence or principal place of business, and if the ship is also arrested in that country. [113] The law of the flag, that is, the law of the country where the ship is registered, was sugge possible solution. The rationale is that if the creation, extinction, and ranking
purpose of cleaning, repairing and fleeting barges, and had never been moved from its original location.[103] The Court in Ducrepont found that, unless the current use approach was adopted, to determine a vessel status based on the original purpose test would produce an “absurd result”[104] After the Ducrepont case, other federal circuit courts held that if a barge is used (primarily) as a work platform, then it should not retain its vessel status under the Jones Act.[105] It should be noted that, unlike most other socialist countries, China has adopted a new political approach to its ship arrest law. The Chinese courts have extended the definition of ship arrest to cover the arrest of military and public ships when they are engaged in commercial activities.[106] Most socialist countries, in accordance with their political philosophy, adhered to the doctrine of absolute immunity,[107] and still do.[108] According to these countries, all acts of the state are jure imperii, and all state ships perform an exclusively public service even if they are engaged in operations that in capitalist countries quality as commercial.[109] A. N. Yiannopoulos, law professor of Tulane University, has stated that Western nations tend “to rest the distinction between commercial and non-commercial vessels on a factual-empirical basis rather than the disputed distinction between acts of jure imperii and jure gestionis. A vessel is commercial, regardless of ownership or possession by the state, when it is engaged in the carriage of goods and persons, that is, when it performs the same function as a privately owned commercial vessel.”[110] III.B Approach to solving the conflicts of law in maritime arrest: The law of the flag If a claim against a shipowner is initiated in a country other than the country of the ship’s registration and the claimant eventually seizes the ship in a third country, then it is necessary to determine which country’s law applies. Related issues may further include the claimant’s right is secured by maritime lien and its priority over other claims. As the ranking of maritime liens differs from country to country, such problems involving conflicts of law become major issues to consider when “jurisdiction shopping.”[111] Since the last two decades of the nineteenth century, attempts have been made to unify the rules relating to conflicts of law. Partial unification was achieved through the 1952 Arrest Convention, which suggested the law of the flag as a possible solution, that is, to apply the law of the country where the ship is registered. The scope of application of the 1952 Arrest Convention is determined in its Article 8(1), which states: “The provisions of this Convention shall apply to any vessel flying the flag of a Contracting State in the jurisdiction of any Contracting State.” Any contracting state, however, may also arrest a ship flying the flag of a non-contracting state either for the maritime claims enumerated in Article 1 or for any other claim for which the law of the contracting state permits arrest.[112] Domestic law rather than the provisions of the Convention apply, however, if the ship is flagged in the same country where the claimant has his habitual residence or principal place of business, and if the ship is also arrested in that country.[113] The law of the flag, that is, the law of the country where the ship is registered, was suggested as a possible solution. The rationale is that if the creation, extinction, and ranking of maritime liens
follow the law of the flag, irrespective of the place where the ship is seized and sold, then maritime creditors will know in advance which order of priorities is applied In section 501 of the Restatement (Third)of Foreign Relations Law(1986), the law of the flag is invoked: A ship has the nationality of the state that registered it and authorized it to fly the states flag, but a state may properly register a ship and authorize it to fly the state's flag only if there is a genuine link between the state and the ship. Section 502(2) further provides: "The flag state may exercise jurisdiction to prescribe, to adjudicate, and to enforce, with respect to the ship or any conduct that takes place on the ship While the Restatement(Third) provides the flag state with jurisdiction over matters confined to the vessel, Comment(h) in section 402 indicates that the power does not stem from the concept of the vessel as a floating piece of national territory, but as an independent basis of jurisdiction. [114 However, the law of the flag system does have some drawbacks. It is difficult to determine which law should be applied if the ship changes flag. The creation of the maritime lien should perhaps b governed by the law of the flag that the ship flew when the event giving rise to the maritime lie occurred. On the other hand, courts could also determine that ranking should be governed by the law of the new flag Some countries have enacted provisions stating that the rights in a ship, including maritime liens, are governed by the law of the flag. [115] In most countries, however, no specific rule has been introduced by statute, and courts have applied other criteria [116 China has adopted a mixed system. The Chinese Maritime Code provides that the rights in a ship are to be governed by the law of the flag. [117] Article 27 1 further specifies that the law of the flag state is to apply to the mortgage on the ship. If the mortgage on the ship is established before or during its bareboat charter period, then the law of the original country of registry of the ship is to apply to the mortgage. However, for maritime liens, instead of choosing the flag system, it is determined in Article 272 that"the law of the place where the court hearing the case is located shall apply to maritime liens. The two approaches guiding international conflicts of law disputes can be found in Articles 3 of he Maritime Procedural Law and Article 276 of Chinas maritime Code IlL. B. 1 Article 3 of the Maritime Procedural Law Article 3[118 provides that when there is an inconsistency between the provisions of the Maritime Code and the international conventions that China has ratified the foreign conventions shall prevail. [1191 International conventions may apply directly if there is no appropriate domestic law or regulation Chinese courts may also apply common international practices and commercial usage in the absence of local conventions and domestic practices. The party alleging the application of a
follow the law of the flag, irrespective of the place where the ship is seized and sold, then maritime creditors will know in advance which order of priorities is applied. In section 501 of the Restatement (Third) of Foreign Relations Law (1986), the law of the flag is invoked: “A ship has the nationality of the state that registered it and authorized it to fly the state’s flag, but a state may properly register a ship and authorize it to fly the state’s flag only if there is a genuine link between the state and the ship.” Section 502(2) further provides: “The flag state may exercise jurisdiction to prescribe, to adjudicate, and to enforce, with respect to the ship or any conduct that takes place on the ship.” While the Restatement (Third) provides the flag state with jurisdiction over matters confined to the vessel, Comment (h) in section 402 indicates that the power does not stem from the concept of the vessel as a floating piece of national territory, but as an independent basis of jurisdiction.[114] However, the law of the flag system does have some drawbacks. It is difficult to determine which law should be applied if the ship changes flag. The creation of the maritime lien should perhaps be governed by the law of the flag that the ship flew when the event giving rise to the maritime lien occurred. On the other hand, courts could also determine that ranking should be governed by the law of the new flag. Some countries have enacted provisions stating that the rights in a ship, including maritime liens, are governed by the law of the flag.[115] In most countries, however, no specific rule has been introduced by statute, and courts have applied other criteria.[116] China has adopted a mixed system. The Chinese Maritime Code provides that the rights in a ship are to be governed by the law of the flag.[117] Article 271 further specifies that the law of the flag state is to apply to the mortgage on the ship. If the mortgage on the ship is established before or during its bareboat charter period, then the law of the original country of registry of the ship is to apply to the mortgage. However, for maritime liens, instead of choosing the flag system, it is determined in Article 272 that “the law of the place where the court hearing the case is located shall apply to maritime liens.” The two approaches guiding international conflicts of law disputes can be found in Articles 3 of the Maritime Procedural Law and Article 276 of China’s Maritime Code. III.B.1 Article 3 of the Maritime Procedural Law Article 3[118] provides that when there is an inconsistency between the provisions of the Maritime Code and the international conventions that China has ratified, the foreign conventions shall prevail.[119] International conventions may apply directly if there is no appropriate domestic law or regulation. Chinese courts may also apply common international practices and commercial usage in the absence of local conventions and domestic practices. The party alleging the application of a
common practice or commercial usage bears the burden of proving that the customary rules have een established and accepted by a majority of the international community of nations. [120] Ill. B2 Article 276 of Chinas Maritime Code Chinese law provides that once an international treaty has been acceded to by China and if the treaty contains provisions that differ from those contained in the Maritime Code, then the provisions of the international treaty apply [121]A general reservation provision, however, can be found in Article 276 of the Maritime Code. 122] It reserves the right to exclude the application of foreign laws, or international laws or customs where they may jeopardize the public interests of China, which include but are not limited to conflict with the Constitution or Chinese sovereignty. or pose a threat to national security. In short, the modern development of using flags of convenience and double registries under bareboat charters, which are commonly referred to as"flag shopping, seems to have tolled the death knell for the law of the flag as a logical solution to conflicts of law. [123] In other words, the law of the flag would no longer be the sole consideration in determining the proper law in any matter of ship arrest. Some Commonwealth judges, such as Lord Denning, have gone further and put forward the suggestion that the law of the flag is not to be held determinative even when all other factors cancel themselves out. 124]Rather, in order to arrive at a properly applicable law of the ship arrest scenario, it makes sense for the courts to follow "a logical, constant, and consistent process or methodology in each conflict case. 1251 IV International developments IVA Maritime claims Ship arrest laws of all nations tend to be concerned with one common issue: Should ship arrest law be based on any type of claim or on specific types of claims only? 126 The interests of shipowners would be better protected if ship arrest law were based on a definitive and closed list Its, however, would prefer an open list Therefore, during the main debate on article l of the 1999 Arrest Convention, the concerns of the delegates were focused upon the issue whether the list of maritime claims for arresting a ship should be closed, " as in the 1952 Arrest Convention, or"open"as in the Draft of the Comite Maritime International(CMI).[127] When opening the 1999 Arrest Convention debate, the CMI delegate, Professor Francesco Berlingieri, reminded the conference that the original CMI proposal ad been to abolish the list altogether and simply to use a generic description of maritime claims, but that this had not been accepted at the Lisbon Conference, 128] which had instead adopted the generic description plus a list connected by the words"such as. At the beginning of the debate, a substantial majority of the delegates among the Joint Intergovernmental Group of Experts
common practice or commercial usage bears the burden of proving that the customary rules have been established and accepted by a majority of the international community of nations.[120] III.B.2 Article 276 of China’s Maritime Code Chinese law provides that once an international treaty has been acceded to by China and if the treaty contains provisions that differ from those contained in the Maritime Code, then the provisions of the international treaty apply.[121] A general reservation provision, however, can be found in Article 276 of the Maritime Code.[122] It reserves the right to exclude the application of foreign laws, or international laws or customs where they may jeopardize the public interests of China, which include but are not limited to conflict with the Constitution or Chinese sovereignty, or pose a threat to national security. In short, the modern development of using flags of convenience and double registries under bareboat charters, which are commonly referred to as “flag shopping,” seems to have tolled the death knell for the law of the flag as a logical solution to conflicts of law.[123] In other words, the law of the flag would no longer be the sole consideration in determining the proper law in any matter of ship arrest. Some Commonwealth judges, such as Lord Denning, have gone further and put forward the suggestion that the law of the flag is not to be held determinative even when all other factors cancel themselves out.[124] Rather, in order to arrive at a properly applicable law of the ship arrest scenario, it makes sense for the courts to follow “a logical, constant, and consistent process or methodology in each conflict case.”[125] IV International developments IV.A Maritime claims Ship arrest laws of all nations tend to be concerned with one common issue: Should ship arrest law be based on any type of claim or on specific types of claims only?[126] The interests of shipowners would be better protected if ship arrest law were based on a definitive and closed list of claims only. Claimants, however, would prefer an open list. Therefore, during the main debate on Article 1 of the 1999 Arrest Convention, the concerns of the delegates were focused upon the issue whether the list of maritime claims for arresting a ship should be “closed,” as in the 1952 Arrest Convention, or “open” as in the Draft of the Comité Maritime International (CMI).[127] When opening the 1999 Arrest Convention debate, the CMI delegate, Professor Francesco Berlingieri, reminded the conference that the original CMI proposal had been to abolish the list altogether and simply to use a generic description of maritime claims, but that this had not been accepted at the Lisbon Conference,[128] which had instead adopted the generic description plus a list connected by the words “such as.” At the beginning of the debate, a substantial majority of the delegates among the Joint Intergovernmental Group of Experts