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

Chapter IV
PROCEDURES FOR THE ARREST OF SEAGOING SHIPS, RELEASE OF SEAGOING SHIPS, RELEASE OF SEAGOING SHIPS FROM ARREST FOR ENFORCEMENT OF JUDGMENTS


Article 43:- The right to apply for the arrest of seagoing ships for enforcement of judgments
Through competent civil judgment enforcement bodies, parties in favor of whom judgments are enforced under Vietnamese law on civil judgment enforcement may request competent courts specified in Clause 1, Article 3 of this Ordinance to decide to arrest seagoing ships for enforcement of judgments.

Article 44:- Conditions for arrest of seagoing ships for enforcement of judgments
1. Upon receiving an application for the arrest of a seagoing ship for enforcement of a judgment specified in Article 43 of this Ordinance, a court shall decide to arrest the seagoing ship in the following cases:
a. The ship owner is the party against whom a property judgment is enforced and still owns the ship at the time of its arrest.
b. The bareboat charterer, time charterer, voyage charterer or ship operator is the party against whom a property judgment in a civil case arising from a maritime claim specified in Article 11 of this Ordinance and still the bareboat charterer, time charterer, voyage charterer, ship operator or the ship owner at the time of arrest;
c. The obligation to comply with property judgment is secured by the mortgage of the seagoing ship;
d. The obligation to comply with the judgment means the obligatory return of the seagoing ship to the party in favor of whom the judgment is enforced.
2. Courts shall only decide to arrest seagoing ships for enforcement of judgments when civil judgment enforcement bodies cannot apply the measure of property attachment or other coercive measures for enforcement of judgments, except the cases specified at Points c and d, Clause 1 of this Article, or parties against whom judgments are enforced reside in foreign countries and have no other property in Vietnam.

Article 45:- Applications for the arrest of seagoing ships for enforcement of judgments
1. Applicants for the arrest of seagoing ships for enforcement of judgments shall make applications and file them together with copies of court judgments or decisions or arbitral awards.
2. An application for the arrest of a seagoing ship for enforcement of a judgment must contain the following principal details:
a. Date of making;
b. Name of the application-receiving civil judgment enforcement body;
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 bareboat charterer or ship operator in case of a claim for payment by the ship charterer or operator;
h. Property obligation subject to enforcement of a court judgment or decision or an arbitration award;
i. Reason for the arrest of the seagoing ship;
j. Anticipated loss or damage likely to be caused by the wrongful application for the arrest of the seagoing ship.
3. In case applicants for the arrest of seagoing ships for enforcement of judgments do no accurately and adequately know the details specified at Point e, f and g, Clause 2 of this Article, they shall write down what they know related to those details.

Article 46:- Filing of applications for the arrest of seagoing ships for enforcement of judgments and enclosed documents and evidence
Applicants for the arrest of seagoing ships for enforcement of judgments shall file their applications and enclosed documents and evidence with civil judgment enforcement bodies competent to enforce judgments for transfer to competent courts specified in Clause 1, Article 3 of this Ordinance.

Article 47:- Receipt of applications for the arrest of seagoing ships for enforcement of judgments
1. Upon receiving applications for the arrest of seagoing ships for enforcement of judgments and enclosed documents and evidence, civil judgment enforcement bodies shall record them in application receipt books and notify in writing the transfer of these applications and enclosed documents and evidence to courts competent to decide to arrest seagoing ships specified in Clause 1, Article 3 of this Ordinance. Written notices of application transfer must clearly state reasons for the failure to apply the measure of property attachment or other coercive measures for enforcement of judgments.
2. Upon receiving written notices of application transfer from civil judgment enforcement bodies together with applications for the arrest of seagoing ships 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 shall immediately assign a judge to handle applications.

Article 48:- Examination of applications for the arrest of seagoing ships for enforcement of judgments
1. Within forty eight hours after receiving documents specified in Clause 2, Article 47 of this Ordinance, the judge shall examine the application and make one of the following decisions:
a. To accept the application for the arrest of a seagoing ship for enforcement of a judgment 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, except cases in which a financial security is not required;
b. To return the application for the arrest of a seagoing ship for the enforcement of a judgment if finding that the conditions for issuance of a decision to arrest the seagoing ship 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 for enforcement of judgments, courts shall send their decisions to competent civil judgment enforcement bodies; immediately issue or send these decisions together with applications and enclosed documents and evidence to applicants.

Article 49:- Complaints or protests about decisions to return applications for arrest of seagoing ships for enforcement of judgments, 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 for the enforcement of a judgment, the applicant may lodge a written complaint or the competent civil judgment enforcement body may make a protest about that decision with the court president. Complaints and protests must be made in writing.
2. Within twenty four hours after receiving a written complaint or protest about the decision to return the application for the arrest of a seagoing ship for enforcement of a judgment 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 again the application and enclosed documents and evidence before officially accepting the application for the arrest of seagoing ship.
3. Court presidents’ decisions to settle complaints or protests are final.

Article 50:- Decisions to arrest seagoing ships for enforcement of judgments
1. Judges shall promptly issue decisions to arrest seagoing ships for enforcement of judgments when 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, Article 5, except in cases a financial security is not required, and the paid fee for the arrest specified in Article 6 of this Ordinance.
2. A decision to arrest a seagoing ship for enforcement of a judgment 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 for enforcement of a judgment;
d. Reason for the arrest of the seagoing ship for enforcement of a judgment;
e. Name of the civil judgment enforcement body competent to enforce the judgment;
f. 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;
g. Name, address and nationality of the shipmaster;
h. Name, address and nationality of the ship owner;
i. Name, address and nationality of the bareboat charterer or the ship operator;
j. Assessment by the court and legal grounds for the acceptance of the application;
k. Decisions of the court.
3. Decisions to arrest seagoing ships for enforcement of judgments 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 for enforcement of a judgment 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 the competent civil judgment enforcement body; 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 51:- Complaints or protests about decisions to arrest seagoing ships for enforcement of judgments, and the settlement thereof
1. Ship owners, charterers, operators and shipmasters may lodge written complaints with court presidents about decisions to arrest seagoing ships for enforcement of judgments. 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 for enforcement of judgments. The time limit for the 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 for enforcement of a judgment, 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 presidents’ decisions to settle complaints or protests are final.
Article 52:- Grounds for release of seagoing ships arrested for enforcement of judgments
1. A seagoing ship arrested for the enforcement of a judgment will be promptly released upon the existence of any of the following grounds:
a. After the ship owner, charterer or operator against whom a judgment is enforced furnishes substitute security or fulfill the obligation to comply with the judgment;
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.
c. When the applicant for the arrest of the seagoing ship so requests;
2. Substitute security shall be agreed upon by the involved parties. In case no agreement on the amount 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 serving as the ground for the arrest of the seagoing ship in case the property obligation is smaller than the value of the seagoing ship.

Article 53:- Requests for release of seagoing ships arrested for enforcement of judgments
1. Upon the existence of any of the grounds specified in Clause 1, Article 52 of this Ordinance, ship owners, charterers or operators, shipmasters and other involved parties may request in writing the release of seagoing ships arrested enforcement of judgments.
2. A written request for the release of a seagoing ship must have 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 requested release of the seagoing ship from arrest;

Article 54:- Sending of written requests for release of seagoing ships arrested for enforcement of judgments
Requesters for the release of seagoing ships arrested for enforcement of judgments shall send their written requests and enclosed documents and evidence to courts which have issued decisions on the arrest of these seagoing ships.

Article 55:- Decisions to release seagoing ships arrested for enforcement of judgments
1. Upon receiving written requests for the release of seagoing ships arrested for enforcement of judgments, 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 arrested for enforcement of judgments and enclosed documents and evidence, if finding 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 of groundless requests, judges shall notify such in writing to the release requesters, clearly stating the reason for non-acceptance of release requests.
3. A decision to release a seagoing ship arrested for enforcement of a judgment 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 to be released from arrest; port where the seagoing ship is to be released from arrest;
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 the ship from arrest;
i. Decisions of the courts.
4. Decisions to release seagoing ships arrested for enforcement of judgments take immediate effect.
5. The court shall hand two copies of the decision to release a seagoing ship arrested for enforcement of a judgment 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 requester and the competent civil judgment enforcement body; 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 from arrest involves foreign elements.