Action In Rem Is the Action Towards Personal Property

Introduction

The expression In rem is the meaning in Latin for “in a thing”. In the case of the lawsuit, the so called action in rem is also directed towards to some specific piece of somebody’s property, rather than actually being a claim for, just to say, monetary compensation against also a person which this is considered to be an in personam or personal action accordingly (Dockray, M., 1993). The action in rem focuses on the proprietary title to the property. The aspect of land is actually an example of such a case where, by the time that the title i.e. the person who owns a house and is in dispute, the forementioned in rem action is being used so as to deliver the land itself back to the rightful owner as a result. The distinction also between an in rem action and the in personam action is also considered to be relevant to where the jurisdiction in a court case might need to be filed in and for the purposes of a conflict of the relevant laws and the civil procedure accordingly. The action in rem can change the right jurisdiction which could be where the property actually is and belongs. Therefore the action in rem is considered to be the lawsuit so as to determine the basic title to property (Dockray, M., 2002). It should also be noticed that an action in rem is also a proceeding that takes no notice of the actual owner of the property but determines the rights in the property that are those considered to be conclusive against the whole world. Lastly, it could be said that all the in rem lawsuits could actually be brought against the property of the debtors and in order to collect what is actually owed and they are begun for the partition of a real property, foreclosure of mortgages as also for the enforcement of different liens. They might also be directed against any real or personal property accordingly. In the in rem actions it could be said that those actually permitted only when the court has the absolute control of the property or where its authority also extends to cover it accordingly. The in rem jurisdiction of a court might also be exercised and only after the parties who are known to have an interest in the whole property are notified of the proceedings accordingly and have been given a chance to their present claim to the court by far (Dockray, M., 1993).

Case Analysis of Indian Grace

“In June 1987 the respondents’ vessel Indian Grace loaded a cargo of munitions in Sweden for carriage to Cochin in India and delivery to the appellant, the Indian Government. The vessel sailed. A few days later a fire occurred in the No.3 hold of the vessel. The Master and crew extinguished the fire with water. They also jettisoned 51 artillery shells and 10 charges. The vessel put into Cherbourg for survey and to repack and restow the cargo in No.3 hold. Upon completion of the necessary work the vessel resumed her voyage to Cochin. She arrived at Cochin in early September, and the cargo was cleared by 4 September 1987 “(Case of Indian Grace, available analysis http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971016/india01.htm).

One of the most important maritime cases that include those two theories is the Indian Grace. In this case an action in personam was brought in a subordinate judge court in Cochin, India and an in rem action was brought in the English admiralty court. According to the s.34 of the Civil Jurisdiction and Judgments Act 1982 which says that:

“No proceeding may be brought by a person in England and Wales or Northern Ireland on a cause of action in respect of which a judgment has been given in his favor in proceedings between the same parties or their privies in a court in another part of the United Kingdom or in a court of an overseas country, unless that judgment is not enforceable or entitled to recognition in England and Wales.”(Case of Indian Grace, available analysis http://www.publications.parliament.uk/pa/ld199798/ldjudgmt/jd971016/india01.htm)

There is a question arising if the action that has been taken in India and the action that has been taken in the English admiralty court are between the same parties or not. According to s.34, if the proceedings of the two countries where between the same parties no action could take place in the English court. Due to that, The House of Lords came to a decision that was under severe criticism. From the very first moment that the case is under jurisdiction within the admiralty court, action in rem is an action against the owners and not only against the ship.

Discussion in the In Rem – In Personam Actions

It could be said that an action in rem may be brought as follows (Dockray, M., 2002) :

To enforce any maritime lien;

Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto.

Except as otherwise provided by law a party who may proceed in rem may also, or in the alternative, proceed in personam against any person who may be liable.

All the statutory provisions by exempting also vessels or other property owned or possessed by or the operated by or for the country of United States from the arrest or the seizure accordingly, are not affected by this rule. By the time that a statute provides so, an action against the country of United States or an instrumentality thereof might proceed on in rem principles by far. The in rem action includes the aspect of complaint where the complaint must (Dockray, M., 1993):

be verified;

describe with reasonable particularity the property that is the subject of the action; and

state that the property is within the district or will be within the district while the action is pending.

In advance, people should place importance to the aspect of judicial Authorization and Process which consist of (Dockray, M., 2002) :

Arrest Warrant.

The court must review the complaint and any supporting papers. If the conditions for an in rem action appear to exist, the court must issue an order directing the clerk to issue a warrant for the arrest of the vessel or other property that is the subject of the action.

If the plaintiff or the plaintiff’s attorney certifies that exigent circumstances make court review impracticable, the clerk must promptly issue a summons and a warrant for the arrest of the vessel or other property that is the subject of the action. The plaintiff has the burden in any post-arrest hearing under Rule E(4)(f) to show that exigent circumstances existed.

Service.

If the property that is the subject of the action is a vessel or tangible property on board a vessel, the warrant and any supplemental process must be delivered to the marshal for service.

Moreover, what should be mentioned, is the aspect of deposit in court for the action in rem and the in personam. The Deposit in Court should apply for the case where the property is considered to be the subject of the action consists in whole or in part of freight, the proceeds of property sold, or other intangible property, the clerk must issue – in addition to the warrant – a summons directing any person controlling the property to show cause why it should not be deposited in court to abide the judgment (Dockray, M., 1993). Lastly, the aspect of Supplemental Process is considered to be the clerk upon any application issue for any supplemental process so as to enforce the court’s order without further court order. What should be noticed in that case is that not any other than execution of the process is actually required by the time that the property which is considered to be the subject of the action that has been released under Rule No. 5 of the said Code. If the property is actually not being released within a period of 14 days after the execution, the plaintiff can promptly or within the time that the court allows to give the public notice of the action and arrest in a newspaper designated by court order and having general circulation in the district, but publication may be terminated if the property is released before publication is completed. The notice must specify the time under Rule C 6 to file a statement of interest in or right against the seized property and to answer (Dockray, M., 2002).

Moreover, the ancillary process is concerned with the action in rem and in which the whole process has also been served so as to be provided by this rule and if any part of this property that is actually the subject of the action, it has not been brought within the control of the court due to the fact that it has been removed or even sold, or because it is intangible property in the hands of a person who has actually not been served upon process, the court might, on motion, order any person having possession or control of such property or its proceeds to show cause why it should not be delivered into the custody of the marshal or other person or organization having a warrant for the arrest of the property, or paid into court to abide the judgment; and, after hearing, the court may enter such judgment as law and justice may require (Dockray, M., 2002).

Moreover, in a case of action in rem, parties have to provide serious consideration on the sector of Responsive Pleading and the Interrogatories which mention the following.

Maritime Arrests and Other Proceedings.

a person who asserts a right of possession or any ownership interest in the property that is the subject of the action must file a verified statement of right or interest:

within 14 days after the execution of process, or

within the time that the court allows;

the statement of right or interest must describe the interest in the property that supports the person’s demand for its restitution or right to defend the action;

an agent, bailee, or attorney must state the authority to file a statement of right or interest on behalf of another; and

a person who asserts a right of possession or any ownership interest must serve an answer within 21 days after filing the statement of interest or right.

Interrogatories.

The Interrogatories might also be served upon the complaint in an in rem action but without the leave of court. Answers to the various interrogatories must also be served upon the answer to the complaint accordingly. Concerning the action in Personam, it should be said that this is an action in which the judgment is also sought against a person (Dockray, M., 1993). The word ‘in personam’ is also derived from the Latin word ‘in personem’ that means against a certain person. The judicial proceeding will also be against a person and not against the property of that person. Moreover, the action in personam can determine the rights as also the interests of the parties themselves in the subject matter of the case. The action in Personam is also called ‘personal action’. Lastly, an in personam action can also affect the defendant’s personal rights as also the interests and substantially all of his or her property accordingly. It is also based on the authority of the court, or even the jurisdiction and over the person like an individual rather also than the jurisdiction over a specific property which is owned by the person. This contrasts with an in rem jurisdiction, or actions which are limited to the property of the defendant that is within the control of the court accordingly. One court with in personam jurisdiction and in a particular case has also enough power over the defendant and his or her property so as to grant a judgment by affecting the defendant in almost any way (Dockray, M., 1993).

Conclusion

In conclusion, due to all the above, I believe that we cannot make a distinction between action in rem and action in personam. The legislation recognizes both of the actions with respect to the advantages and disadvantages of each, and it is up to the claimant which of the two he is going to use. If he choose the in personam action, then he has to know who is the shipowner that he is going against. If he choose the action in rem proceedings, then he could use the advantage of suing the vessel itself without knowing who is behind her. The final decision should be based by taking in consideration the relevant circumstances but in any case he must assure the most secure and time effective procedure because those kind of proceedings can take a long time period until the court comes to a final decision.