Ship Arrest

Civil Law Systems such as Korea

In many countries belonging to the Civil Law System, particularly Korea, Japan and Taiwan, a creditor can obtain a provisional attachment over a debtor’s property relatively easily, and provisional attachment is permitted for ships in the same way as for any other property.

By contrast, in Common Law Systems such as the United Kingdom and the United States, the courts in many cases do not, as a rule, grant interim measures such as provisional attachments or provisional injunctions over a debtor’s property on the strength of a claim merely asserted by the creditor and not yet established by a court judgment, except in highly exceptional circumstances (for example, where it is clearly shown that the debtor is removing or concealing its assets). However, even in countries where such pre-judgment interim measures are not generally permitted, interim measures against ships are granted more readily, subject to certain requirements, in view of the particular nature of ships (namely, the ease with which they can be moved out of reach).

The requirements for obtaining such interim measures against a ship are examined below.

Requirement 1 for Ship Arrest: The Claim Must Be a Maritime Claim

For the arrest of ships, there are the INTERNATIONAL CONVENTION FOR THE UNIFICATION OF CERTAIN RULES RELATING TO THE ARREST OF SEA-GOING SHIPS (“Arrest Convention”) of 1952 and of 1999.

Many countries have either acceded to an Arrest Convention or, even without acceding, have adopted it by enacting it into their National Law.

The Arrest Conventions set out a list of some twenty Maritime Claims and permit the arrest of a ship where the arrest is based on one of those Maritime Claims.

Accordingly, for a ship to be arrested, the claim asserted must first qualify as a Maritime Claim.

Requirement 2 for Ship Arrest: The Claim Must Carry a Maritime Lien, or the Debtor Must Have Owned the Ship When the Claim Arose

The fact that a claim is a Maritime Claim does not mean that any ship may be arrested. The range of ships that may be arrested depends on whether a Maritime Lien is recognised for the Maritime Claim in question.

First, if a Maritime Lien is recognised for the claim asserted, the ship in respect of which the Maritime Claim arose (the particular ship in respect of which the maritime claim arose) may be arrested, regardless of who owns that ship.

On the other hand, if no Maritime Lien is recognised for the claim asserted, only a ship that was owned by the debtor at the time the Maritime Claim arose may be arrested. In such a case, if there is no contractual relationship between the party asserting the claim and the owner of the ship, the ship cannot be arrested, because the shipowner is not the debtor.

Scope of Maritime Liens

As explained above, the range of ships that may be arrested depends on whether a Maritime Lien is recognised for a given claim, so the scope of Maritime Liens is of great importance.

Whether a Maritime Lien is recognised for a particular claim varies considerably depending on the private international law (Conflict of Laws) of the forum and the governing law (Governing Law) determined under it.

For example, under English law, the law governing a Maritime Lien is the law of the forum (Lex Fori). Furthermore, under English law, only Bottomry and respondentia, Damage caused by a ship, Salvage, Seamen’s wages, and Master’s wages and disbursements are recognised as Maritime Liens. It should be noted that Supplies are not recognised as a Maritime Lien under English law.

By contrast, under Korean private international law, the law governing a Maritime Lien is the law of the flag state.

Furthermore, the Korean Commercial Act recognises a wider range of Maritime Liens than English law. However, Supplies are not recognised as a Maritime Lien under Korean law either.

Meanwhile, in the United States, Japan and Panama, Supplies are also recognised as a Maritime Lien.