SOUTH KOREA Law and Practice Contributed by: Choon Won Lee and Dahee Kim, Jipyong LLC
4.5 Arresting a Vessel Document Preparation
the ship-owner grants the charterer with such authority. For a judicial auction sale based on a security right, such as a mortgage or maritime lien, it is unlikely to be a case where the bunker supplier is the mortgagee of the vessel. As for a mari - time lien, as discussed in 4.2 Maritime Liens , the claim for unpaid bunkers would not constitute a maritime lien over a ship under South Korean law (the only possibility may be a claim for bunkers supplied to the vessel for the purpose of main - tenance after the final entry into a port). Thus, in the case of a South Korean vessel, the bunker supplier may not apply for a judicial auction sale based on a maritime lien. However, it should be noted that, under the Act on Private International Law of Korea, the law of the vessel’s nationality shall apply to the issues regarding a maritime lien. In other words, under South Korean law and before the South Korean courts, the issue of what claims constitute a maritime lien over a ship shall be determined in accordance with the law of the vessel’s national - ity. Therefore, in the case of ships of a nation - ality for which the law provides that the claim for unpaid bunkers constitutes a maritime lien over a ship, maritime liens may be established over that vessel for unpaid bunker claims and thus a judicial auction sale based on a maritime lien may be available in Korea. Indeed, there are a number of cases in Korea where ships of a nationality for which the law provides that the claim for unpaid bunkers constitutes a maritime lien over a ship, notably Panama, have been arrested by way of a judicial auction sale based on a maritime lien.
For all types of ship arrest, (i) a power of attor - ney and (ii) evidence materials corroborat - ing the requirements of each type would be required. Generally, notarised and apostilled/ legalised copies would suffice, and in the case of urgency (which is frequently the case in ship arrest), the court may be persuaded to accept notarised copies that are not apostilled/legal - ised, but admittedly this may be determined on a case-by-case basis. The court will require the documents to be translated, although, again, in the case of urgency, the applicant/creditor may submit a translation of relevant parts only (not the complete documents) and supplement the translation at a later stage as necessary. Counter-Security For a judicial auction sale based on a securi - ty right, such as a mortgage or maritime lien, and a judicial auction sale for enforcement of a claim under the judgment or arbitration award, a counter-security deposit is not required (the applicant/claimant may be required to pay and deposit the enforcement costs in advance). For a pre-judgment attachment, considering that the applicant/creditor’s claim has not been confirmed yet by the court’s judgment or arbi - tration award, and no security right has been established for that claim, the court will generally require the applicant/creditor to deposit counter- security, which will work as a security for the debtor/respondent’s claim for damages in the case of wrongful arrest. Preservation and Maintenance of a Vessel Under South Korean law and practice, for all types of ship arrest, the applicant/creditor is required to appoint a local ship-preservation and maintenance company, which will embark and
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