HONG KONG SAR, CHINA Law and Practice Contributed by: Christopher Andrew Potts, Crump & Co
year for liens; longer for wages) vary by jurisdiction and claim type, with prompt action being vital to avoid extinguishment. 5.3 Liability in Personam for Owners or Demise Charterers Maritime Liens The right to arrest for a maritime lien (eg, crew wages, salvage, collision damage) travels with the ship and is enforceable in rem alone. A vessel may be arrested even if the current owner has no personal liability. Nei - ther the owner nor the demise charterer needs to be personally liable in an action in personam at the time of arrest. Non-Lien Maritime Claims For all other maritime claims under Section 12A of the High Court Ordinance (Chapter 4) (eg, charter - party disputes, cargo claims, necessaries, towage, pilotage), arrest depends on satisfying the statutory in rem requirements. The claimant must show that the person liable in personam was, when the cause of action arose, the owner, charterer, or in possession or control of the ship, and is, when proceedings are commenced, the beneficial owner (as to all shares) or demise charterer of the ship to be arrested, including in the case of a sister-ship arrest. 5.4 Unpaid Bunkers Under Section 12A-B of the High Court Ordinance (Chapter 4), a bunker supplier may arrest a vessel for unpaid bunkers, subject to satisfaction of the statu - tory in rem requirements. Contractual suppliers (ie, the party that contracted with the owner or charterer) will usually have standing to arrest, subject to the statutory ownership/control requirements. An actual or physical supplier who has no contract with the owner/demise charterer (eg, supplied through an intermediary trader) cannot arrest the vessel unless it can show the owner/demise charterer is personally liable, since Hong Kong does not recognise a maritime lien for necessaries. Where bunkers are ordered by a time or voyage charterer, arrest of the vessel is usually not available,
because a time or voyage charterer is not the benefi - cial owner or demise charterer at the time proceedings are commenced. Therefore, a time charterer does not have authority to create a lien or bind the vessel itself merely by ordering necessaries. Arrest may neverthe - less be possible if the charterer later becomes the beneficial owner of the vessel or a sister ship, or where the charter is a demise (bareboat) charter. 5.5 Arresting a Vessel Governed by Order 75 of the Rules of the High Court (Chapter 4A), the following documents must be filed with the court to obtain a warrant of arrest: • a writ of summons for an action in rem identifying the vessel; • a praecipe for the service of a writ and for the war - rant of arrest; • a warrant of arrest; • an affidavit or affirmation setting out the nature of the claim, confirmation that the claim falls within Section 12A–12B of High Court Ordinance and the vessel is within Hong Kong jurisdiction, the ship’s details, the basis for the right to arrest, address ownership/control and full disclosure of all material facts; and • an undertaking by the claimant’s solicitors to the bailiff to cover all costs and expenses incurred dur - ing the arrest, custody and release of the vessel. Additionally, a search of the caveat book for any exist - ing caveats against arrest must be conducted before Power of attorney is not mandatory. Original docu - ments, or the notarised or apostilled certification of these documents, are not required for arrest. Scanned or certified copies are routinely accepted. Documents require translation only if they are not in English or Chinese. If they are in a foreign language, a translation should be provided, and it does not need to be sworn/ notarised at the arrest stage. Security Deposit The arresting party is not required to provide a security deposit or any form of counter-security to the court itself as a condition of arrest. However, an undertaking the warrant is issued. Document Specifics
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