JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
An arrest by a lien or a mortgage is usually con - sidered as the first option by creditors since it is the easiest way to arrest vessels. 4.2 Maritime Liens Under Japanese law, which is basically a civil law system, maritime liens are not formally rec - ognised 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 following claims are covered by statutory liens which enable the claimants to arrest the vessel more easily 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 under - standing): • claims for death or personal injury directly in connection to navigation of vessels; • 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 voy - age; and • mariners’ claims arising from their employ - ment contracts. In addition to the foregoing, the following claims are also covered by a lien: • claims subject to a limitation held in accord - ance 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 indem - nities 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. 4.3 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 person - am (Articles 707 and 703(2) of the Commercial Code). 4.4 Unpaid Bunkers Arrest for Unpaid Bunkers Bunkers are one of the necessities for vessels to continue a voyage. Therefore, a bunker sup - plier’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 ves - sel by ordering bunkers. Possibility of the Arrest by Physical Supplier If the bunker supplier is an actual supplier and not a contractual supplier, it is unlikely to be granted the right to arrest the vessel, since the claimant does not have a contractual claim against the ship-owners, demise charterers or time charterers of the vessel. Issue of Conflict of Laws It should be noted that Japanese courts may also require that (i) the governing law of the bunker supply contract, and/or (ii) the law of the
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