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Procedures for the application or cancellation of the provisional urgent measure of arrest of .....

Chapter III
PROCEDURES FOR THE APPLICATION OR CANCELLATION OF THE PROVISIONAL URGENT MEASURE OF ARREST OF SEAGOING SHIPS


Article 27:- Provisional urgent measure of arrest of seagoing ships
The provisional urgent measure of arrest of seagoing ships is a measure applied in the course of handling civil cases under Clause 13, Article 102 of the Civil Procedure Code.

Article 28:- The right to request the application of the provisional urgent measure of arrest of seagoing ships
In the course of handling civil cases, involved parties and their lawful representatives may request courts handling these cases to apply the provisional urgent measure of arrest of seagoing ships in order to temporarily satisfy urgent claims of involved parties, protect evidence and maintain the current status, thereby avoiding irrecoverable losses or assuring the enforcement of judgments in any of the cases specified in Article 29 of this Ordinance.

Article 29:- Conditions for application of the provisional urgent measure of arrest of seagoing ships
Upon receiving an application for the arrest of a seagoing ship under Article 28 of this Ordinance, a court shall decide to apply the provisional urgent measure of arrest of the seagoing ship in the following case:
1. The seagoing ship is under arrest to secure the settlement of a maritime claim and the applicant for arrest of the seagoing ship has instituted a civil lawsuit at the court;
2. The ship owner has the property obligation in the case currently handled and still owns the ship at the time of application of the provisional urgent measure of arrest of the seagoing ship;
3. The bareboat charterer, time charterer, voyage charterer or ship operator has the property obligation in the civil case arising from a maritime claim specified in Article 11 of this Ordinance and is still the bareboat charterer, time charterer, voyage charterer, ship operator or the ship owner at the time of application of the provisional urgent measure of arrest of the seagoing ship;
4. A dispute currently settled in the case arises from the mortgage of the seagoing ship;
5. A dispute currently settled in the case is related to the right to ownership or possession of the seagoing ship.

Article 30:- Applications for the provisional urgent measure of arrest of seagoing ships
1. Applicants for the provisional urgent measure of arrest of seagoing ships shall file applications.
2. An application for the provisional urgent measure of arrest of seagoing ship contains the following principal details:
a. Date of making;
b. Name of the application-receiving court;
c. Name, address and nationality of the applicant;
d. Name, nationality, IMO number, tonnage and other specifications of the seagoing ship the arrest of which is applied for; seaport where the seagoing ship is operating;
e. Name, address and nationality of the shipmaster;
f. Name, address and nationality of the ship owner;
g. Name, address and nationality of the ship charterer or operator in case of a claim for payment by the ship charterer or operator;
h. Specific dispute currently settled in the case and the maximum value of this dispute;
i. Reason for the application of the provisional urgent measure of arrest of the seagoing ship;
j. Anticipated loss or damage likely to be caused by the wrongful application for the provisional urgent measure of arrest of the seagoing ship;
k. Guarantee of the applicant;
l. Number and date of issuance and contents of the court decision to arrest the seagoing ship to ensure the settlement of a maritime claim (if any).
3. In case applicants for the provisional urgent measure do not know accurately and fully the contents specified at Points e, f and g Clause 2 of this Article, they shall write down what they know related to those matters in their applications.

Article 31:- Sending of applications for the provisional urgent measure of arrest of seagoing ships and enclosed documents and evidence
Applicants for the provisional urgent measure of arrest of seagoing ships shall send their applications and enclosed documents and evidence to courts currently handling the cases.

Article 32:- Receipt of applications for the provisional urgent measure of arrest of seagoing ships
1. Upon receiving applications for the provisional urgent measure of arrest of seagoing ships and enclosed documents and evidence, courts currently handling the cases shall record their receipt in application receipt books.
2. In case the court currently handling the case is competent to decide to arrest seagoing ships defined in Clause 2, Article 3 of this Ordinance, it shall handle an application and enclosed documents and evidence as follows:
a. It shall immediately transfer the application and enclosed documents and evidence to a judge assigned to handle the case if it receives them before the opening of a trial session;
b. It shall immediately transfer the application and enclosed documents and evidence to the trial panel if it receives them during the trial.

Article 33:- Examination of applications for the provisional urgent measure of arrest of seagoing ships
1. Within three days after receiving an application for the provisional urgent measure of arrest of a seagoing ship and enclosed documents and evidence, the judge shall examine the application and make one of the following decisions:
a. To accept the application for handling if finding that the conditions for issuance of a decision on the application of the provisional urgent measure of arrest of the seagoing ship are fully met and, at the same time, request the applicant to furnish a financial security and pay an arrest fee within the time limit set by the court instead of the time limit specified in Article 5 and 6 of this Ordinance. When the applicant produces receipts and documents providing he/she/it has furnished the financial security and paid the arrest fee, the judge shall immediately issue a decision to apply the provisional urgent measure of arrest of the seagoing ship;
b. To return the application and enclosed documents and evidence if finding that the conditions for issuance of a decision to apply the provisional urgent measure of arrest of the seagoing ship are not fully met.
2. After receiving applications for the provisional urgent measure of arrest of seagoing ships and enclosed documents and evidence, the trial panel shall immediately examine them and make one of the decisions specified in Clause 1 of this Article.
3. In case of decision to return applications for provisional urgent measure of arrest of seagoing ships, the court shall immediately issue or send their decisions together with applications and enclosed documents and evidence to applicants. The trial panel shall publicly announce decisions to return apply the application of the provisional urgent measure of arrest of seagoing ships at trial sessions and record the announcement in trial session minutes.

Article 34:- Complaints and protests about decisions to return applications for the provisional urgent measure of arrest of seagoing ships, and the settlement thereof
1. Within three working days after receiving decisions to return applications for the provisional urgent measure of arrest of seagoing ships, applicants may lodge complaints about these decisions with court presidents.
2. Within three working days after receiving a complaint about a decision to return an application for the provisional urgent measure of arrest of a seagoing ship and enclosed documents and evidence, the court president shall make one of the following decisions:
a. To uphold the decision;
b. To cancel the decision and receive once again the application for the provisional urgent measure of arrest of a seagoing ship and enclosed documents and evidence before officially accepting the application.
3. After being notified of a decision to return the application for the provisional urgent measure of arrest of a seagoing ship at the trial session, the applicant may lodge a complaint or the procuracy may make a protest about that decision with the trial panel and that complaint or protest shall be recorded in the trial session minutes. The trial panel shall immediately settle the complaint or protest and make one of the decisions specified in Clause 2 of this Article.
4. Court presidents’ decisions to settle complaints and trial panels’ decisions to settle complaints or protests are final.

Article 35:- Decisions to apply the provisional urgent measure of arrest of seagoing ships
1. A decision to apply the provisional urgent measure of arrest of a seagoing ship must contain the following principal details:
a. Date of issuance;
b. Name of the decision-issuing court;
c. Name, address and nationality of the applicant for the provisional urgent measure of arrest of a seagoing ship;
d. Reason for the application of the provisional urgent measure of arrest of a seagoing ship;
e. Name, nationality, IMO number, tonnage and other specifications of the seagoing ship the arrest of which is applied for; seaport where the seagoing ship is operating;
f. Name, address and nationality of the shipmaster;
g. Name, address and nationality of the ship owner;
h. Name, address and nationality of the bareboat charterer or ship operator;
i. Assessment by the court and legal grounds for acceptance of the application;
j. Decisions of the court
2. Decisions to apply the provisional urgent measure of arrest of seagoing ships take immediate effect even in case of complaints or protests.
3. The court shall hand two copies of the decision to apply the provisional urgent measure of arrest of a seagoing ship to the port authority director for execution under Article 9 of this Ordinance; promptly send the decision to the procuracy of the same level; issue or promptly send the decision to the applicant; and promptly send the decision to the Consular Department of the Ministry of Foreign Affairs of Vietnam in case the seagoing ship under arrest involves foreign elements.

Article 36:- Complaints and protests about decisions to apply the provisional urgent measure of arrest of seagoing ships, and the settlement thereof
1. Shipmasters, ship owners, charterers or operators may lodge written complaints about decisions to apply the provisional urgent measure of arrest of seagoing ships with court presidents. The time limit for lodging a complaint is three working days after the shipmaster receives a court decision.
The procuracy of the same level may make written protests about decisions to apply the provisional urgent measure of arrest of seagoing ships with the court president. The time limit for making a protest is three working days after the Procuracy of the same level receives a court decision.
2. Within three working days after receiving written a complaint or protest about a decision to apply the provisional urgent measure of arrest of a seagoing ship, the court president shall consider and settle the complaint or protest and make one of the following decisions:
a. To uphold the decision;
b. To cancel the decision.
3. At a trial session, the settlement of complaints or protests falls under the jurisdiction of the trial panel. The trial panel shall consider and settle them, and make one of the decisions specified in Clause 2 of this Article.
4. Decisions of court presidents or trial panels to settle complaints or protests are final.

Article 37:- Grounds for cancellation of decisions to apply the provisional urgent measure of arrest of seagoing ships
Decisions to apply the provisional urgent measure of arrest of seagoing ships shall be cancelled when the conditions for application of the provisional urgent measure no longer exist or at the request of applicants for the provisional urgent measure of arrest of seagoing ships.

Article 38:- Requests for cancellation of decisions to apply the provisional urgent measure arrest of seagoing ships
1. The following persons may request in writing the cancellation of a decision to apply the provisional urgent measure of arrest of a seagoing ship:
a. Applicant for the provisional urgent measure of arrest of a seagoing ship;
b. Shipowner, charterer or operator, shipmaster and other related parties, in case the conditions for application of the provisional urgent measure on longer exist.
2. A written request for the cancellation of a decision to apply the provisional urgent measure of arrest of a seagoing ship contains the following principal details:
a. Date of making;
b. Name of the request-receiving court;
c. Name and address of the requester;
d. Name, nationality, IMO number, tonnage and other specifications of the seagoing ship under arrest; seaport where the seagoing ship under arrest is operating;
e. Number and date of the decision to apply the provisional urgent measure of arrest of a seagoing ship, and the issuing court;
f. Reason for the cancellation of the decision to apply the provisional urgent measure of arrest of a seagoing ship;

Article 39:- Sending of written requests for cancellation of decisions to apply the provisional urgent measure of arrest of seagoing ships
Requesters for cancellation of decisions to apply the provisional urgent measure of arrest of seagoing ships shall send their written requests and enclosed documents and evidence to courts which have issued these decisions.

Article 40:- Handling of written requests for cancellation of decisions to apply the provisional urgent measure of arrest of seagoing ships
In case a court currently handling the case receives a written request for the cancellation of a decision to apply the provisional urgent measure of arrest of a seagoing ship, it shall handle that written request as follows:
1. Immediately transferring it to the judge assigned to handle the case, for written requests received before the opening of the trial session;
2. Immediately transferring it to the trial panel currently trying the case, for written requests received during the trial.

Article 41:- Decisions on cancellation of decisions to apply the provisional urgent measure of arrest of   seagoing ships
1. Upon receiving a written request for the cancellation of a decision to apply the provisional urgent measure of arrest of a seagoing ship and enclosed documents and evidence, the judge assigned to handle or the trial panel currently trying the case shall consider and issue a decision to cancel the decision to apply the provisional urgent measure of arrest of a seagoing ship if finding that grounds for that decision are sufficient. In case of non-acceptance of the written request, the judge or the trial panel shall notify in writing the requester of the reason for non-acceptance.
2. A decision to cancel a decision to apply the provisional urgent measure of arrest of a seagoing ship contains the following principal details:
a. Date of issuance;
b. Name of the decision-issuing court;
c. Legal grounds for the court to issue the decision;
d. Name, nationality, IMO number, tonnage and other specifications of the seagoing ship the arrest of which is applied for; seaport where the seagoing ship is operating;
e. Number and date of the decision to apply the provisional urgent measure of arrest of a seagoing ship and the issuing court;
f. Name, address and nationality of the ship owner;
g. Name, address and nationality of the ship charterer or operator;
h. Name, address and nationality of the shipmaster;
i. Reason for the cancellation of the decision to apply the provisional urgent measure of arrest of a seagoing ship;
j. Decisions of the court.
3. Decisions to cancel decisions to apply the provisional urgent measure of arrest of seagoing ships take immediate effect.
4. The court shall hand two copies of the decision to cancel a decision to apply the provisional urgent measure of arrest of a seagoing ship to the port authority director for execution under Article 9 of this Ordinance; promptly send the decision to the procuracy of the same level; issue or promptly send the decision to the applicant; and promptly send the decision to the Consular Department of the Ministry of Foreign Affairs of Vietnam in case the seagoing ship to be released involves foreign elements.

Article 42:- Application of the provisional urgent measure of arrest of seagoing ships in case arbitration centers settle disputes
In the course of having their dispute settled by an arbitration center, the involved parties and their lawful representatives may request a competent court defined in Clause 2, Article 3 of this Ordinance to decide to apply the provisional urgent measure of arrest of seagoing ships. Procedures for deciding on the application of the provisional urgent measure of arrest of seagoing ships comply with the provisions of this Chapter.