We wrote an article about the Arrest of Vessels in Korean waters in a post last week. The article is a useful guide for those considering arresting a ship in Korean waters. The post may be found at: Arrest/Attachment of Vessels in Korean Waters: Maritime Liens for Creditors in Korea.
This post describes how you may obtain the release of a vessel arrested in Korea waters. The Korean Courts have put in place an efficient post-arrest procedure that, often, quickly allows the release of an arrested ship.
Post-Arrest Procedures in Korea for Ships Arrested in Korean Waters
In the post-arrest procedures in Korea, the burden is on the arresting party to establish that the order of arrest, initially granted, should not be vacated. These hearings are often a tool to persuade a judge that the arresting party should post a security or the security should be increased. In all but the most exceptional of cases, shall a Korean court release an order of arrest.
If a preliminary attachment was granted (not a maritime lien), the defendant may demand that the trial procedure promptly commence. The Korean Courts, usually, will demand that the arresting party/plaintiff files its case on the merits within 14 days of the first post-arrest hearing. If the arresting party/plaintiff fails to file its case within 14 days, the defendant should promptly request the court to hold a hearing to confirm that the arresting party/plaintiff has not complied with the court's demand.
Liability for Wrongful Arrest of Vessel in Korea
In the majority of cases of an order of arrest being invalidated by a Korean court, the arresting party will, also, be deemed to have acted negligently, since the burden of proof is placed on the arresting party to establish that he did not act negligently. Korean courts are, however, often reluctant to reward the "full" damage amount. I will deal with this issue in a future post entitled: Damages for the Negligent Arrest of Vessels in Korea.
If you ship has been arrested in Korean, it is advisable to get contact with a local attorney promptly. While the action of arresting a ship may be done by a member of your staff in Korea with basic knowledge of the court procedure, the procedure to release an order of arrest and obtain damages should, always, be conducted with the assistance of an experienced attorney in Korea. It is, always, recommended to hire a retired Korean judge that works alongside an international attorney in order to assist in guaranteeing that your case will get the full attention of the court.
Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
Sean Hayes is co-chair of the Korea Practice Team for an international law firm. He is the only non-Korean to have worked as an attorney for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty.