JH_Choi

							SHIP ARREST IN KOREA


               J. H. Choi
             Choi & Kim
I.     Introduction
II.    Prejudgment Attachment
III.   Attachment for Auction Sale
IV.    Bar to Ship Arrest
V.     Conclusion



                                     CHOI & KIM
I.      Introduction

Korea

•    has not ratified the 1952 Arrest Convention
•    is a civil law country
•    has two types of ship arrest:
              prejudgment attachment
              attachment for auction sale


                                               CHOI & KIM
II.   Prejudgment Attachment

1. General

  •   To obtain security
  •   Without a judgment or an arbitral award
  •   Not limited to maritime claims




                                                CHOI & KIM
                             Ⅱ Prejudgment Attachment




2. Jurisdiction

  •   Court with jurisdiction over the location of a ship
  •   Not possible before the ship enters the Korean
      territorial waters
  •   Possible for foreign judgment or arbitral award
  •   Not to acquire automatic jurisdiction on the merits


                                                CHOI & KIM
                             Ⅱ Prejudgment Attachment




3. Procedure

  •   Ex parte application
  •   Prima facie evidence
  •   Counter security
            Cash deposit
            Surety bond


                                             CHOI & KIM
                           Ⅱ Prejudgment Attachment




3. Procedure (continued)

  •   One to two days
  •   Ship not physically detained
  •   Maintenance and preservation order




                                           CHOI & KIM
                            Ⅱ Prejudgment Attachment




4. Prejudgment attachment of a beneficially
   owned ship

  •   Doctrine of piercing the corporate veil
  •   Sham or abuse of law
  •   Lenient level of proof for prejudgment attachment
  •   Risk of wrongful arrest


                                              CHOI & KIM
                             Ⅱ Prejudgment Attachment




5. Release from Prejudgment Attachment

  •   Cash deposit
  •   Letter of undertaking not acceptable
  •   Objection to prejudgment attachment– quick
      release not possible
  •   Exploited for quick settlement or better terms of
      LOU

                                                CHOI & KIM
III. Attachment for Auction Sale


1. General

  •   Maritime lien or mortgage
  •   Ship ordered to physically remain
  •   Sale by auction
  •   Existence and priority of maritime lien or mortgage
      determined by the laws of the flag state


                                               CHOI & KIM
                          Ⅲ Attachment for Auction Sale




2. Jurisdiction


  •   Court with jurisdiction over the location of a ship
  •   Possible before the ship enters the Korean
      territorial waters




                                                 CHOI & KIM
                          Ⅲ Attachment for Auction Sale




3. Procedure

  •   Ex parte application / Prima Facie evidence
  •   No counter security
  •   Evidence regarding the laws of the flag state




                                                CHOI & KIM
                       Ⅲ Attachment for Auction Sale




3. Procedure (continued)

  •   Auction costs to be paid in advance
  •   One to two days
  •   Maintenance and preservation recommended




                                             CHOI & KIM
                         Ⅲ Attachment for Auction Sale




4. Release from Attachment

  •   Objection to attachment
  •   Provisional injunction for stay
  •   Provision of security
            Cash deposit
            Letter of undertaking not acceptable


                                               CHOI & KIM
IV. Bar to Ship Arrest


•   When the ship completed preparation for voyage

•   When the limitation proceedings have been
    commenced for the shipowner

•   When the rehabilitation/bankruptcy proceedings have
    been commenced for/against the shipowner


                                                CHOI & KIM
V.    Conclusion




     “Easy to arrest, difficult to release”




                                        CHOI & KIM