JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
contract for carriage of cargo (including a claim for damaged or lost cargo) are subject to one-year time limits from the date of delivery of the cargo, or the date when the cargo should have been delivered in the case of total loss of the cargo. The shipper can agree with the carrier on an extension of time to sue the carrier in order to avoid unnecessary court proceedings, and this agreement on extension of time is commonly used in the practice of cargo claims. 5. Maritime Liens and Ship Arrests 5.1 Ship Arrests Japan has not ratified the 1952 Arrest Convention, nor the 1999 Arrest Convention; thus, vessel arrest is carried out under the domestic laws of Japan. Under Japanese law, creditors may arrest vessels upon the following rights or orders: • a lien; • a mortgage; or • a provisional attachment order. An arrest by a lien or a mortgage is usually considered as the first option by creditors since it is the easiest Under Japanese law, which is basically a civil law sys - tem, maritime liens are not formally recognised in the same way as under common law, such as the laws of England and Wales. Further, there is no distinction between maritime claims and non-maritime claims. However, the fol - lowing claims are covered by statutory liens which enable the claimants to arrest the vessel more eas - ily than other measures. Thus, these claims have a similar nature to maritime claims which are covered by maritime liens (for this reason, this type of lien will be referred to as a “maritime lien” in this chapter for ease of understanding): • claims for death or personal injury directly in con - nection to navigation of vessels; way to arrest vessels. 5.2 Maritime Liens
• claims for salvage and general average; • claims for pilotage, towage or voyage-related taxes such as port charges; • claims for necessity for continuation of a voyage; and • mariners’ claims arising from their employment contracts. In addition to the foregoing, the following claims are also covered by a lien: • claims subject to a limitation held in accordance with the Limitation of Liability Act; and • claims for the damage caused by oil pollution resulting from a spill or discharge of oil from a tanker. As mentioned above, a maritime lien for indemnities for injuries of crew is recognised to the extent that such injury is directly in connection to navigation of vessels. On the other hand, the liabilities resulting from contracts for chartering a vessel do not provide grounds for a maritime claim. 5.3 Liability in Personam for Owners or Demise Charterers In order to arrest a vessel upon a maritime lien under Japanese law, the prevailing view is that owners, demise charterers or time charterers of the vessel are required to be liable in personam (Articles 707 and 703 (2) of the Commercial Code). 5.4 Unpaid Bunkers Arrest for Unpaid Bunkers Bunkers are one of the necessities for vessels to con - tinue a voyage. Therefore, a bunker supplier’s claim for the payment of unpaid bunkers against ship-owners or demise charterers is covered by a maritime lien by which the bunker supplier is able to arrest the vessel. However, since it is considered that the maritime claim is required to be against owners or demise owners of the vessels, time charterers are not considered to have the authority to bind the vessel by ordering bun - kers.
312 CHAMBERS.COM
Powered by FlippingBook