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Procedures for the arrest of seagoing ships, release of seagoing ships from arrest or .....

Chapter II
PROCEDURES FOR THE ARREST OF SEAGOING SHIPS, RELEASE OF SEAGOING SHIPS FROM ARREST OR SUBSEQUENT ARREST OF SEAGOING SHIPS TO SECURE THE SETTLEMENT OF MARINE CLAIMS

Article 11:- Maritime claims giving rise to the right to apply for the arrest of seagoing ships
Maritime claims giving rise to apply for the arrest of seagoing ships are those for:
1. Wages, repatriation allowances, social insurance premiums and other sums of money payable to shipmasters, officers and other crewmembers within the complement of seagoing ships;
2. Damages for the loss of life. personal injuries and other human health damage directly caused by the operation of seagoing ships;
3. Freight, maritime security charge, pilotage, wharfage, and other seaport dues and charges;
4. Seagoing ship salvage remunerations;
5. Property losses and damage outside contract directly caused by the operation of seagoing ships;
6. Damage caused or threatened to be caused by seagoing ships to the environment, coastline or other related interests; measures applied to prevent, mitigate or preclude such damage; damages; expenses for applied or to-be-applied actual reasonable measures to rehabilitate the environment; averages incurred or likely to be incurred to third parties involved in such damage; similar damage, expenses or averages specified in this Clause;
7. Charges for the raising, movement, recovery, demolition or rendering harmless of shipwrecks, stranded or deserted seagoing ships, including any appurtenance that is or has been onboard seagoing ships, and charges or costs related to the preservation of deserted seagoing ships and expenses due to their crews;
8. Agreements relating to the use of charter of seagoing ships, whether in charter parties or otherwise expressed;
9. Agreements relating to the transportation of cargoes or passengers onboard seagoing ships, whether in charter parties or otherwise expressed;
10. Loss of or damage to cargoes, including luggage carried onboard seagoing ships;
11. General average;
12. Towage;
13. Pilotage;
14. Goods, materials, food, fuels and equipment (including containers) supplied or services provided to seagoing ships for their operation, management, preservation and maintenance;
15. Building, transformation, reconstruction, repair or equipping of seagoing ships;
16. Sums of money paid on behalf of ship owners;
17. Insurance premiums paid by ship owners or other parties on behalf of ship owners or bareboat charterer;
18. Commissions or charges for brokerage or agency for seagoing ships payable by ship owners, bareboat charterers or authorized parties;
19. Disputes as to the title to or ownership of seagoing ships;
20. Disputes between co-owners of seagoing ships over the use of these ships or earnings of these ships;
21. Mortgage or hypothecation of seagoing ships.
22. Disputes arising from contracts of seagoing ship purchase and sale.

Article 12:- The right to apply for the arrest of seagoing ships to secure the settlement of maritime claims
Parties making maritime claims (claimants) specified in Article 11 of this Ordinance may request competent courts specified in Clause 1, Article 3 of this Ordinance to decide to arrest seagoing ships to secure the settlement of maritime claims.

Article 13:- Conditions for arrest of seagoing ships to secure the settlement of maritime claims
1. Upon receiving an application for the arrest of a seagoing ship to secure the settlement of a maritime claim specified in Article 12 of this Ordinance, a court shall decide to arrest the seagoing ship in the following cases:
a. The ship owner is the party responsible for the maritime claim at the time the maritime claim arose and still owns the ship at the time of its arrest.
b. The bareboat charterer is the party responsible for the maritime claim at the time the maritime claim arose and still owns the bareboat charterer or the owner of the ship at the time of its arrest;
c. This maritime claim is based on the mortgage of the seagoing ship concerned;
d. This maritime claim is related to the right to ownership or possession of the seagoing ship;
e. This maritime claim is secured by a maritime lien related to the seagoing ship.
2. The arrest may also be effected of another or many other seagoing ships owned by the party held responsible for the maritime claim and, at the time the maritime claim arose, is also:
a. The owner of the seagoing ship in respect of which the maritime claim arose;
b. The bareboat charterer, time charterer or voyage charterer of the seagoing ship in respect of which the maritime claim arose.
3. The provisions of Clause 2 of this Article do not apply to maritime claims related to the right to ownership of seagoing ships.

Article 14:- Period of arrest of seagoing ships to secure the settlement of maritime claims
1. The period of arrest of a seagoing ship to secure the settlement of a maritime claim must not exceed thirty days from the date of arrest.
2. During the period of arrest of a seagoing ship to secure the settlement of a maritime claim, if the applicant institutes a lawsuit at court or brings the dispute to an arbitration center for settlement and maintains the application for the arrest, the period of arrest of a seagoing ship to secure the settlement of a maritime claim will expire when the court decides to or not to apply the arrest of the seagoing ship as a provisional urgent measure.

Article 15:- Applications for the arrest of seagoing ships to secure the settlement of maritime claims
1. Applicants for the arrest of seagoing ships to secure the settlement of maritime claims shall file applications.
2. An application for the arrest of a seagoing ship to secure the settlement of a maritime claim 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 and identity number of the seagoing ship under regulations of the International Maritime Organization (IMO), tonnage and other specifications of the seagoing ship the arrest of which is applied for; the 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 maritime claim which gives rise to the right to apply for the arrest of the seagoing ship and the maximum value of that maritime claim;
i. Anticipated loss or damage likely to be caused by the application for the arrest of the seagoing ship.
3. In case applicants for the arrest of seagoing ships do not accurately and adequately know the details specified at Point e, f and g, Clause 2 of this Article, they shall write down what that know related to those details.

Article 16:- Filing of applications for the arrest of seagoing ships to secure the settlement of maritime claims and enclosed documents and evidence
Applicants for the arrest of seagoing ships to secure the settlement of maritime claims shall file their applications and enclosed documents and evidence to courts competent to decide to arrest seagoing ships specified in Clause 1, Article 3 of this Ordinance.

Article 17:- Receipt of applications for the arrest of seagoing ships to secure the settlement of maritime claims
Upon receiving applications for the arrest of seagoing ships to secure the settlement of maritime claims and enclosed documents and evidence, courts competent to decide to arrest seagoing ships specified in Clause 1, Article 3 of this Ordinance shall record them in application receipt books. Court presidents of courts shall promptly assign a judge to handle applications.

Article 18:- Examination of applications for the arrest of seagoing ships to secure the settlement of maritime claims
1. Within forty eight hours after receiving an application for the 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 if finding that the conditions for issuance of a decision to arrest the seagoing ship are fully met, and request the applicant to furnish a financial security for the application and pay an arrest fee;
b. To return the application if finding that the conditions for issuance of a decision to arrest the seagoing ships are not fully met or the handling of the application falls beyond the court’s jurisdiction.
2. In case courts decide to return applications for the arrest of seagoing ships to secure the settlement of maritime claims, courts shall immediately hand or send these applications and enclosed documents and evidence back to applicants

Article 19:- Complaints about decisions to return applications for the arrest of seagoing ships to secure the settlement of maritime claims, and the settlement thereof
1. Within twenty four hours after receiving a decision to return his/her application for the arrest of a seagoing ship to secure the settlement of a maritime claim, the applicant may lodge a written complaint with the court president about that decision.
2. Within twenty four hours after receiving a written complaint about the decision to return the application for the arrest of a seagoing ship to secure the settlement of a maritime claim 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 and enclosed documents and evidence before officially accepting the application for handling.
3. Court presidents’ decisions to settle complaints are final.

Article 20:- Decisions to arrest seagoing ships to secure the settlement of maritime claims
1. Judges shall promptly issue decisions to arrest seagoing ships to secure the settlement of maritime claims when arrest applicants produce receipts or documents evidencing the furnished financial security for their applications for the arrest of seagoing ships specified in Clause 1 and 2 of Article 5, and the paid fee for the arrest of seagoing ships specified in Article 6 of this Ordinance.
2. A decision to arrest a seagoing ship to secure the settlement of a maritime claim has 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 arrest of the seagoing ship;
d. Maritime claim giving rise to the right to apply for the arrest of the seagoing ship within the court’s jurisdiction;
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 the ship operator;
i. Assessment by the court and legal grounds for the acceptance of the application;
j. Decisions of the court.
3. Decisions to arrest seagoing ships to secure the settlement of maritime claims take immediate effect even in case of complaints or protests.
4. The court shall hand two copies of the decision to arrest a seagoing ship to secure the settlement of a maritime claim 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 21:- Complaints or protests about decisions to arrest seagoing ships to secure the settlement of maritime claims, and the settlement thereof
1. Shipmasters, ship owners, bareboat charterers and ship operators may lodge written complaints with court presidents about the decisions to arrest seagoing ships to secure the settlement of maritime claims. The time limit for lodging a complaint is forty eight hours after the shipmaster receives the court decision.
The procuracy of the same level may lodge written protests with the court president about decisions to arrest seagoing ships to secure the settlement of maritime claims. The time limit for lodging a protest is forty eight hours after the procuracy of the same level receives the court decision.
2. Within forty eight hours after receiving a written complaint or protest about a decision to arrest a seagoing ship, the court president shall consider and settle it and make one of the following decisions:
a. To uphold the decision;
b. To cancel the decision.
3. Court president’s decisions to settle complaints or protests are final.

Article 22:- Grounds for release of seagoing ships from arrest to secure the settlement of maritime claims
1. A seagoing ship arrested to secure the settlement of a maritime claim will be promptly released upon the existence of any of the following grounds:
a. After the ship owner, charterer or operator furnishes substitute security or fully pays debts;
b. The property obligation of the ship owner, charterer or operator has been guaranteed by another party or insured with a warrant by a prestigious insurance organization. The Finance Ministry shall publicize the list of prestigious insurance or organizations;
c. When the applicant for the arrest of the seagoing ship so requests;
d. The decision to arrest the seagoing ship is cancelled;
e. The period of the arrest of the seagoing ship under the court decision expires.
2. Substitute security shall be agreed upon by the involved parties. In case no agreement on the amount and form of substitute security can be reached by the involved parties, the court shall decide on the amount and form of substitute security which must not exceed the value of the seagoing ship under arrest or the property obligation being the ground for the arrest of the seagoing ship in case the property obligation is smaller than the value of the seagoing ship.

Article 23:- Requests for the release of seagoing ships from arrest to secure the settlement of maritime claims
1. Upon the existence of any of the grounds specified at Points a, b and c, Clause 1, Article 22 of this Ordinance, ship owners, charterers or operators, shipmasters, applicants for the arrest of seagoing ships and other involved parties may request the release of seagoing ships from arrest. Requests for the release of seagoing ships from arrest must be made in writing.
2. A written request for the release of a seagoing ship from arrest has 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 arrest the seagoing ship and the issuing court;
f. Reason(s) for the release of the seagoing ship from arrest;
g. Guarantee by the requester for the release of the seagoing ship from arrest.

Article 24:- Sending of written requests for the release of seagoing ships from arrest to secure the settlement of maritime claims
Requesters for the release of seagoing ships from arrest to secure the settlement of maritime claims shall send their written requests and enclosed documents and evidence to courts which have issued decisions to arrest these seagoing ships.

Article 25:- Decisions to release seagoing ships from arrest to secure the settlement of maritime claims
1. Upon receiving written requests for the release of seagoing ships from arrest to secure the settlement of maritime claims, court presidents shall assign a judge to proceed with the release of seagoing ships.
2. Within twenty four hours after receiving written requests for the release of seagoing ships from arrest to secure the settlement of maritime claims and enclosed documents and evidence, if considering these requests are grounded, judges assigned to proceed with the release of seagoing ships shall consider and issue decisions to release seagoing ships. In case of non-acceptance by reason or groundless requests, judges shall notify such in writing to the release requesters, clearly stating the reason for non-acceptance of their release requests.
3. A decision to release a seagoing ship from arrest to secure the settlement of a maritime claim has 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 under arrest; port where the seagoing ship under arrest is operating;
e. Name, address and nationality of the ship owner;
f. Name, address and nationality of the ship charterer or operator;
g. Name, address and nationality of the shipmaster;
h. Reason for the release of ship from arrest;
i. Decisions of the court.
4. Decisions to release seagoing ships from arrest to secure the settlement of maritime claims take immediate effect.
5. The court shall hand two copies of the decision to release a seagoing ship from arrest to secure the settlement of a maritime claim 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 Consular Department of the Ministry of Foreign Affairs of Vietnam in case the seagoing ship under arrest involves foreign elements.

Article 26:- Subsequent arrest of seagoing ships to ensure the settlement of maritime claims
1. A seagoing ship which has been arrested to secure the settlement of a maritime claim and released or for which a substitute security has been furnished for the maritime claim cannot be subsequently arrested on the basis of the same maritime claim, except in the following cases:
a. The total value of the substitute security already furnished is still insufficient to fulfill the property obligation as it is smaller than the value of the released seagoing ship;
b. The guarantor for fulfillment of the property obligation on behalf of the ship owner, charterer or operator fails to or is unable to fulfill part or the whole of the guaranteed property obligation;
c. The release of the seagoing ship or the cancellation of the substitute security has been effected at the request of the applicant for the arrest of the seagoing ship for justifiable reasons;
d. The applicant for the arrest of the seagoing ship cannot prevent the release of the seagoing ship or the cancellation of the security though he/she/it has applied necessary measures;
2. Seagoing ships are not regarded as being released from arrest if their release is effected without release decisions of competent courts or they escape from arrest, except the cases specified at Point d and e, Clause 1, Article 22 of this Ordinance.
3. Procedures for subsequent arrest of seagoing ships to secure the settlement of maritime claims shall be carried out like procedures for the arrest of seagoing ships to secure the settlement of maritime claims specified in this Chapter.