JAPAN Law and Practice Contributed by: Jumpei Osada, Masaaki Sasaki, Takuto Kobayashi and Hiroshi Ideyama, TMI Associates
4.8 Other Ways of Obtaining Attachment Orders In general, there is no other practical measure to arrest the ship, other than as mentioned in 4.1 Ship Arrests and 4.2 Maritime Liens , but this still may depend on the factual background. 4.9 Releasing an Arrested Vessel In the Case of Arrest by Maritime Lien or Mortgage If a vessel is arrested by enforcement of a mari - time lien or mortgage, then cash, bank guar - antees, insurance bonds or a P&I club’s Letter of Indemnity (LOI) are accepted as security to release the vessel. In the Case of Arrest by Provisional Attachment Order If a vessel is arrested by a provisional attach - ment order, the courts will normally accept only cash as a security to release the vessel. 4.10 Procedure for the Judicial Sale of Arrested Ships Procedure for the Judicial Sale Arrest of a vessel as an enforcement of lien or mortgage is a part of the judicial auction proce - dure. If the arrested vessel is not released with sufficient security, the court will proceed to the sale of the vessel, by: • deciding on the end of the period in which a person who has a claim may apply for distri - bution of proceeds; • evaluating the vessel; • holding a judicial auction; • deciding on the sale of the vessel; and • distributing the proceeds to claimants. If a vessel is arrested under a provisional attach - ment order, a judicial sale procedure will not be held until the arresting party obtains title of the
country where the bunker is supplied or the flag state of the vessel, recognise and grant any such arrest, which is up to the interpretation of each court over the issue of conflict of laws. 4.5 Arresting a Vessel In order to file an application for the arrest of a vessel, an original power of attorney and cor - porate certificates are required as a formality. Documents which prove the claimant’s claims/ liens and their supporting affidavit may also be required. All the documents must be attached with Japanese translations, but, generally, notarisation and apostille are not required. 4.6 Arresting Bunkers and Freight Arresting Bunkers Under Japanese law, it is extremely difficult or almost impossible to arrest a remaining bunker on board. This is due to the interpretation of the requirements of the Civil Execution Act and the difficulties lying in the practical process of arrest of a bunker which is in the tank of the vessel. Arresting Freight The right to arrest the freight on board the vessel may not be granted under Japanese law; how - ever, claims for losses or damages of the freight may be covered by the lien which arises from the scheme of limitation of liability for marine claims. 4.7 Sister-Ship Arrest It is not possible to arrest a sister-vessel with a maritime lien. Conversely, such an order may be granted by a provisional attachment. However, the thresholds are high in terms of the require - ment that the registered owner of the sister-ship must be liable in personam, and, after arresting the vessel, the claimant must commence nor - mal litigation procedures to obtain title of debt against the aforementioned registered owner.
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