(IGE)[ 129 had favored an open list, whereas those supporting a closed list were in the majority at the Diplomatic Conference. Finally, in a rather hurried lunchtime meeting, at which not all delegations were present(and which was conducted only in English without translation),a compromise package was proposed. [130] The compromise package involved accepting a closed list except for"damage to the environment, as defined in Article I(d). It was argued that this was a category of claims that was very difficult to define. Therefore, "open "words("damage, costs, or loss of a similar nature")were used in this paragraph alone. [131 Although China has not yet ratified the 1999 Arrest Convention, it opted for a closed list of claim as reflected in Article 21 of its maritime Procedural Law. The listing in the maritime procedural aw is longer than the list provided by the 1986 Regulations on the Arrest of Ships Prior to Litigation. [ 132] Regarding the wording used, as is indicated by means of the following analysis, the maritime Procedural Law is in line with the 1999 Arrest Convention the legislators of the Maritime Procedural Law apparently drafted the law in such a way as to allow the courts greater flexibility in interpretation Under Chinas Maritime Procedural Law, a maritime claim is only a precondition to arrest. In order to obtain a ship arrest order, other conditions must be met simultaneously. Article 23 of the Maritime Procedural Law provides that a maritime claim gives a right of arrest if any one of the following situations occurs a shipowner who is subjected to a maritime claim is also the owner at the time of the arrest; a bareboat charterer who is subjected to a maritime claim is either the bareboat charterer only o the shipowner at the time of the arrest the existence of a maritime claim that gives rise to ship mortgage or to rights of a similar nature, the existence of a maritime claim related to the ownership or possession of a ship Similar to that of China, the US maritime law regime is generally compatible with the principles outlined in the international Arrest Convention. [133 Indeed, the apparent in rem jurisdictional issues in the US federal appellate cases have not presented any serious conflict with the 1985 Draft Arrest Convention's procedures 134] As the US legal scholars observed once the presence of the ship was within the jurisdiction, whether it was in the district initially or not, the arrest would"not violate the spirit of the 1985 Draft Convention, even if the precise issue is not covered by its terms. 135 In practice, US ship arrest law distinguishes between"arrest"of a vessel and"attachment"of a vessel. [136] A vessel is arrested only when a maritime lien is being foreclosed. [137 While the concept of arrest is uniquely maritime in nature under Us law, the concept of attachment is not[138 For an attachment action, personal maritime liability may exist even without a lien status.[139 Maritime attachment is laid down in Rule b of the Supplemental Rules for Admiralty. [140 It should be noted that unlike the ship arrest action the risk to effect an attachment action is much higher as the legal requirements of an attachment action tend to be governed by stricter state laws instead of the maritime standard of malice or bad faith.[141]The US maritime law regime requires the claimant -if he chooses to effect an attachment action based on maritime claims(not a ship arrest action based on maritime lien) and before he institutes the
(JIGE)[129] had favored an open list, whereas those supporting a closed list were in the majority at the Diplomatic Conference. Finally, in a rather hurried lunchtime meeting, at which not all delegations were present (and which was conducted only in English without translation), a compromise package was proposed.[130] The compromise package involved accepting a closed list except for “damage to the environment,” as defined in Article 1(d). It was argued that this was a category of claims that was very difficult to define. Therefore, “open” words (“damage, costs, or loss of a similar nature”) were used in this paragraph alone.[131] Although China has not yet ratified the 1999 Arrest Convention, it opted for a closed list of claims as reflected in Article 21 of its Maritime Procedural Law. The listing in the Maritime Procedural Law is longer than the list provided by the 1986 Regulations on the Arrest of Ships Prior to Litigation.[132] Regarding the wording used, as is indicated by means of the following analysis, the Maritime Procedural Law is in line with the 1999 Arrest Convention. The legislators of the Maritime Procedural Law apparently drafted the law in such a way as to allow the courts greater flexibility in interpretation. Under China’s Maritime Procedural Law, a maritime claim is only a precondition to arrest. In order to obtain a ship arrest order, other conditions must be met simultaneously. Article 23 of the Maritime Procedural Law provides that a maritime claim gives a right of arrest if any one of the following situations occurs: a shipowner who is subjected to a maritime claim is also the owner at the time of the arrest; a bareboat charterer who is subjected to a maritime claim is either the bareboat charterer only or the shipowner at the time of the arrest; the existence of a maritime claim that gives rise to ship mortgage or to rights of a similar nature; the existence of a maritime claim related to the ownership or possession of a ship. Similar to that of China, the US maritime law regime is generally compatible with the principles outlined in the international Arrest Convention.[133] Indeed, the apparent in rem jurisdictional issues in the US federal appellate cases have not presented any serious conflict with the 1985 Draft Arrest Convention’s procedures.[134] As the US legal scholars observed once the presence of the ship was within the jurisdiction, whether it was in the district initially or not, the arrest would “not violate the spirit of the 1985 Draft Convention, even if the precise issue is not covered by its terms.”[135] In practice, US ship arrest law distinguishes between “arrest” of a vessel and “attachment” of a vessel.[136] A vessel is arrested only when a maritime lien is being foreclosed.[137] While the concept of arrest is uniquely maritime in nature under US law, the concept of attachment is not.[138] For an attachment action, personal maritime liability may exist even without a lien status.[139] Maritime attachment is laid down in Rule B of the Supplemental Rules for Admiralty.[140] It should be noted that, unlike the ship arrest action, the risk to effect an attachment action is much higher as the legal requirements of an attachment action tend to be governed by stricter state laws instead of the maritime standard of malice or bad faith.[141] The US maritime law regime requires the claimant – if he chooses to effect an attachment action based on maritime claims (not a ship arrest action based on maritime lien) and before he institutes the
action-to make certain that he has a good claim, that the property belongs to the prospective defendant and that he has carefully followed the judicially prescribed attachment procedures. 142 IVB Maritime lien As mentioned above, ship arrest law in some countries such as the US is based on the foreclosure of a maritime lien. 143] An understanding of the international conventions relates to maritime liens, would therefore be helpful to appreciate the underlying rationale of a country's ship arrest law. There are three international conventions concerning maritime liens the Maritime Liens and Mortgages Convention, Brussels, April 10, 1926,(hereafter1926 Convention), which came into force on June 2, 1931 the Maritime Liens and Mortgages Convention, Brussels, May 27, 1967, which is not in force, the International Convention on Maritime Liens and mortgages, 1993,(hereafter 1993 Convention")Geneva, adopted by the IMO/UNCTAD on May 6, 1993, which is not in fore China is not a contracting state to any of the three Conventions, but China was one of the core members of the Drafting Committee of the 1993 Convention. 144 Although China did not ratify or accede to the 1993 Convention, it signed it on August 18, 1994. Hence, it was quite natural fo the legislators of the Chinese Maritime Code to consider the 1993 Convention during the drafting process. However, the following differences resulted: [14 Unlike the 1993 Convention, claims for the payment of harbor dues under the 1993 Chinese Maritime Code precede those for the payment of salvage claims. [146] The 1993 Convention is more restrictive in its scope of application. [147 The Chinese Maritime Code has no equivalent for Article 12, paragraphs(2)or(3)of the 1993 Convention. [148] China also enacted the following two regulations with respect to maritime liens and claims a regulation relating to the Arrest of Ships before Suing: 149 a regulation relating to the Auction of Seizing Property and remedies. [150 As China, the US is not a party to any of the three Conventions, but its approach to maritime liens is not too dissimilar to the 1926 Convention, especially with respect to tort liens, cargo liens, and liens for necessaries. [151] n practice, what constitutes a maritime lien is defined both by statutory and case law in the US[152]The claims for which US law commonly recognizes maritime liens against a vessel are onal injury and death caused by a vessel; 153 cargo damage caused by a vessel: [154 shore structure damage caused by a vessel; 155 the cost of supplies and necessary services furnished to a vessel; 156] vessel damage caused by collision: [157] preferred ship's mortgages: 158
action – to make certain that he has a good claim, that the property belongs to the prospective defendant and that he has carefully followed the judicially prescribed attachment procedures.[142] IV.B Maritime lien As mentioned above, ship arrest law in some countries such as the US is based on the foreclosure of a maritime lien.[143] An understanding of the international conventions relates to maritime liens, would therefore be helpful to appreciate the underlying rationale of a country’s ship arrest law. There are three international conventions concerning maritime liens: the Maritime Liens and Mortgages Convention, Brussels, April 10, 1926, (hereafter “1926 Convention”), which came into force on June 2, 1931; the Maritime Liens and Mortgages Convention, Brussels, May 27, 1967, which is not in force; the International Convention on Maritime Liens and Mortgages, 1993, (hereafter “1993 Convention”) Geneva, adopted by the IMO/UNCTAD on May 6, 1993, which is not in force. China is not a contracting state to any of the three Conventions, but China was one of the core members of the Drafting Committee of the 1993 Convention.[144] Although China did not ratify or accede to the 1993 Convention, it signed it on August 18, 1994. Hence, it was quite natural for the legislators of the Chinese Maritime Code to consider the 1993 Convention during the drafting process. However, the following differences resulted:[145] Unlike the 1993 Convention, claims for the payment of harbor dues under the 1993 Chinese Maritime Code precede those for the payment of salvage claims.[146] The 1993 Convention is more restrictive in its scope of application.[147] The Chinese Maritime Code has no equivalent for Article 12, paragraphs (2) or (3) of the 1993 Convention.[148] China also enacted the following two regulations with respect to maritime liens and claims: a regulation relating to the Arrest of Ships before Suing;[149] a regulation relating to the Auction of Seizing Property and Remedies.[150] As China, the US is not a party to any of the three Conventions, but its approach to maritime liens is not too dissimilar to the 1926 Convention, especially with respect to tort liens, cargo liens, and liens for necessaries.[151] In practice, what constitutes a maritime lien is defined both by statutory and case law in the US.[152] The claims for which US law commonly recognizes maritime liens against a vessel are: personal injury and death caused by a vessel;[153] cargo damage caused by a vessel;[154] shore structure damage caused by a vessel;[155] the cost of supplies and necessary services furnished to a vessel;[156] vessel damage caused by collision;[157] preferred ship’s mortgages;[158]