Maritime

It could be just as easy as that dropping a few definitions but in order to dig into the subject of maritime law and in particular in order to thoroughly understand the essence of action in rem and action in personam we should, one might say, conduct a comparative research. Indeed civilian and common law are two different forms and action in rem of common law are represented, of course in another form, in civilian law. But being in England, in an English university we should stick in common law proceedings and therefore for us to understand the concept of action in rem and in personam and furthermore to critically discuss the argument of the action in personam is an action in rem dressed up we shall begin by quoting a famous Maitland (1948, p1) phrase it being: “the forms of action we have buried but they still rule us from their graves” referring to these primitive forms of actions upon which the common law was built up. I personally believe that questions could be answered in whether an action in personam is a dressed up action in rem by, apart from the obvious admiralty research, going back and dig in the past. In this essay we will come across many words such as “action”, “privilege”, “right”, “liability”. The meaning of these words is fairly complicated and their interpretation spreads even in philosophical paths. In Fundamental Legal Conceptions, Hohfeld (1913) refers to the above legal conceptions and characterizes them as “chameleon-hued” words were lawyers as laymen tend to indentify for example the legal interest or rights in a thing with the thing itself. He then goes on using a homely metaphor where eight conceptions-rights and duties, privileges and no rights, powers and liabilities, immunities and disabilities are defined as what may be called “the lowest common denominator of the law”. He explains (Hohfeld cited in Stone, 1968 p137): “ten fractions (1/3, 2/5, etc) may superficially, seem so different from one another [making the comparison of each other difficult]. If, however, they are expressed in terms of their lowest common denominators (5/15, 6/15, etc) comparison becomes easy and fundamental similarity may be discovered. The same thing is…true as regards the lowest generic conceptions to which any and all “legal quantities” may be reduced.” Even for the purpose of this essay the “legal quantities” of action in rem and action in person am could be reduced in lower generic ideas permitting comparison and further explanation of the ambiguity of the terms. The legal conceptions mentioned above which Hohfeld names them jural correlatives are a sequence of αλληλοπ οσδιο οζομενες concepts where none of them could exist alone. For example (Hohfeld, cited in Stone, 1968 p140) “…it is improper to speak of a right inhering in A towards B unless it can be shown that B has a duty” and so on. Under this conceptual background Hohfeld adopts the Austin’s famous passage about the rights in rem and personam respectively:

The phrase in rem denotes the compass, and not the subject of the right. It denotes that the right in question avails against persons generally; and not that the right in question is a right over a thing… The phrase in personam is an elliptical or abridged expression for “in personam certam sive determination”. Like the phrase in rem, it denotes the compass of the right. It denotes that the right avails exclusively against a determinate person or against determinate persons (Austin, cited in Stone, 1968 p151).

It is a really interesting passage and assuming that a right in rem gives rise to an action in rem (because there are several situations where a right in rem does not necessarily give rise to an action in rem) I would like to attempt a parallelism between the Austin’s passage and the common law admiralty practice saying that action in personam is an action taken against a specific person responsible for the wrongdoing( the determinate person) within the High court limitations( section 22(2) ) while action in rem is an action not against the thing( the wrongdoing ship) but against persons constituting a very large and indefinite class of people or what one might say “good against all the world”. This point of view, if adopted, clearly gives an advantage to the procedural theory where action in rem is a means of flushing out the ownership (the person) through proceedings in rem. In further support of this opinion we could quote a few words of Justinian’s Institutes: “omnium actionum…summa division in duo genera deducitur: aut enim in rem sunt aut in personam”. Maitland’s (Maitland,1948 p73) interpretation of this phrase is the following: “the leading division of all actions…is into two kinds, real and personal; that is to say the defendant is either under a contractual or delictual obligation to the plaintiff in which case the action is personal or else…the plaintiff asserts a ground of action against someone else relating to some corporeal thing, in which case the action is real.” Furthermore Bracton (cited in Maitland,1948,p.74) says that “ there is no action in rem for moveable goods…[and as at first site] it may appear that the action should be both real as well personal…since a particular thing is claimed, and the possessor is bound to give it up, but in truth it will be merely in personam, for he from whom the thing is claimed is not absolutely bound to restore the thing, but is bound in the disjunctive to restore the thing or its price, and by merely paying he is discharged, whether the thing be forthcoming or not”.

In accordance to the above sayings I believe that historically the action in rem, the action against to the thing its self it was a really difficult concept to deal with and actions always pointed to people or people who owned things. During the centuries the action in rem overrides the action in personam and two theories come in the foreground, the personification and the procedural. Personification theory dominates for a long time until procedural theory rises over particularly in the U.K. and I believe that procedural theory with its weaknesses and its strengths has a comparative advantage upon the personification theory and this that one way or another brings the right person in front of justice! And if a paraphrase is allowed “the compass should always denote the person..”

When it comes to maritime disputes the plaintiff has more than one choices as to how the proceedings will occur. These choices are either the action in rem or the action in personam. Particularly in action in rem the claimant could make a choice on how the in rem proceedings will be developed. For this purpose two theories have come into force: the personification theory which considers the ship a separate entity and therefore responsible for her wrongdoing (the res is considered to be the personified defendant) and the procedural theory where the res is used as means to flush out the defendant liable for the claim by taking legal action against the res. The purpose of this essay is to critically discuss the advantages and disadvantages of these two legal actions through admiralty jurisdiction and the corresponding maritime cases.

HISTORICAL FACTS

Historically in England, before 1852 all actions were in personam. As Lord Steyn(The Indian Grace[1998]LR 1) beautifully goes back attempting a historical recursion ,points out that during the struggle for power between the common law Courts and the High court of admiralty, the common law courts blocked effectively the assumption by the High Court of Admiralty of in person am jurisdiction. Nevertheless this restriction of in personam jurisdiction, which was brought by writs of prohibition, did not apply to the admiralty jurisdiction over the ship. Being so, judges of that era used the concept that the ship was defendant in an action in rem and in that way they had defended and also extended the jurisdiction of the High Court of Admiralty. The personification theory was gaining ground but that significant struggle for power was violently interrupted by the Judicature Acts in 1873-75 with the following decline of personification theory. As Lord Steyn goes on, he refers to the reasons contributed to that decline of personification theory. A main reason is that while during the 19th century it was believed that admiralty action could only be brought in respect of a maritime lien, now, the statutory actions in rem were spreading in new categories being less easy to personify a ship as the real defendant. Secondly a new procedure had introduced in 1883 in which owners of the ship were specifically named as defendants. By this way it was far easier to consider action in rem as an action against the owners of the vessel. Another point is that before judicature act there was a clear and distinct line between action in rem and action in personam. After dictator came in force in 1892 a combination of these two actions became possible so as if when the defendant was entering into appearance before the court there were two simultaneous actions: action in rem and action in personam in parallel. From that moment and on the owners of the vessel are being treated with action in personam proceedings. In addition to that judges who had been trained within the civil law system they were more sympathetic to the personification theory, rather than common law trained judges. It is more than obvious that a lot of changes have been occurred throughout the years and different opinions have been heard but an absolutely precise and clear statement on the transformation and development of action in rem was that of Sir Frances Jeune:

…not only determines the amount of the liability, and in default of payment enforces it on the res, but is also a means of enforcing against the appearing owner, if they could have been made personally liable in the Admiralty Court, the complete claim of the plaintiff so far as the owners are liable to meet it. (The Dictator [1892] p.320)

And that famous passage was the primitive essence of procedural theory which the years following became the dominant theory especially in the UK Territory.

Action in rem and action in personam

As it has already been said action in personam is the action which is brought against a person or a body corporate. Action in personam is statutory regulated by the Supreme Court Act 1981 and more specifically the mode of exercise of jurisdiction as mentioned in s.21(1) is that action in personam could be brought in the high court in all cases within the Admiralty jurisdiction of that court. Of course there are some exemptions according to the entertainment or even the commencement of in personam actions and these are provided by s22(1) and s22(2) of the of SAC 1981. These articles are referring to specific collision cases and to matters that cut across the habitual residence of the defendant, the territory in which the cause of action took place and the prescribed proceedings. The fact that the defendant should be within England or Wales and the incident occurred arisen within the inland waters of England or Wales constitutes a major disadvantage of the in personam proceedings. Ships are the most valuable asset of their owner and they are moving from jurisdiction to jurisdiction deteriorating the range of appliance of in personam action Moreover action in personam is not providing a security for the claim as action in rem does (we will be dealing with that matter later on) leaving the plaintiff uncovered in respect of the satisfaction of his claim. Where an action in personam is successful, the judgment may be enforced against all of the defendant’s assets, real and personal, moveable and immoveable.

On the other hand action in rem is a series of legal proceedings against the res its self. By the term res is not considered only the ship but in certain cases also the cargo the freight or even the proceeds of sale. The “res” becomes the defendant and ultimately (Hill, 2003, p88) “…the res may be arrested by legal process and sold by the court to meet the plaintiff’s claim”. Today the statutory procedure governing the in rem proceedings could also be found in S.A.C 1981 and especially within sections 20-24. A strictu sensu definition of action in rem could be the following:

In rem (against the thing) – A type of legal proceedings, taken in an admiralty court in a common law jurisdiction, against the ship (and sometimes against cargo and/or freight) (the res) as defendant, in respect of particular types of maritime claims (e.g. to enforce a claim secured by a maritime lien (infra) or a statutory right in rem(infra)). The taking of an action in rem is generally accompanied by the arrest (supra) of the res, which provides pre-judgment security for the claim and confirms the admiralty court’s in rem jurisdiction. Where an action in rem is successful, the judgment may be enforced against the res by way of judicial sale. If the defendant files an appearance in the action in rem, however, the action proceeds as a combined action in personam and in rem, and an eventual judgment in the plaintiff’s favour may then be executed against both the res and the defendant’s other personal assets.

The advantages of action in rem over action in personam are tremendously obvious. To put it in a simple way if there is no obvious link between the wrongdoing ship and the owner and the incident didn’t take place within the Admiralty jurisdiction, so as the in personam proceedings could be brought, the plaintiff could sue the wrongdoing ship herself in rem. Of course, still the ship has to be within the English Admiralty jurisdiction and that the incident constitutes a statutory claim (as seen on SAC 1981), but as Hill (2003 p 100) eloquently describes, “… to issue an in rem claim form and to wait and pounce on the ‘res’ when it comes within the issuing court’s territorial jurisdiction is an excellent method of getting to the owner of the ‘res’ within your grasp…”. Before proceeding to the analysis of the two theories governing action in rem we should definitely define and clearly distinguish the correlation between the maritime lien and maritime claim.

MARITIME LIENS

The roots of maritime lien stretch back to the ancient maritime law and most particular to the medieval European lex maritima and the lex mercatoria which was regulating the relationship of merchants who travelled by sea with their goods in the Middle Ages. Maritime liens are characterized by the Civil Law as “maritime privileges” and that specific idiom was recognized by the common law courts. An initially stated definition of maritime lien was that of Sir John Jervis in 1851:

Having its origin in this rule of the civil law, a maritime lien

Is well defined by Lord Tenterden, to mean a claim or privilege upon a thing to be carried into effect by legal process! And Mr. Justice Story…explains that process to be a proceeding in rem… This claim of privilege travels with into whosesoever possession it may come. It is inchoate from the moment the claim or privilege attaches, and when carried into effect by legal process, by a proceeding in rem relates back to the period when it first attached (Sir John Jervis 1851,cited in Nafziger and Symeonides,2002, p5)

Later on L.J Scott gave a more distinguishing definition of maritime lien stating the following:

The essence of the ‘privilege’ was and still is, whether in Continental or English law, that it comes into existence automatically without any antecedant formality, and simultaneously with the cause of action, and confers a true charge on the ship and freight of a proprietary kind in favour of the ‘privileged’ creditor. The charge goes with the ship everywhere, even in the hands of a purchaser for value without notice, and has a certain ranking with other maritime liens, all of which take precedence over mortgages (Scott L.J. cited in Nafziger and Symeonides, 2002,p6)

Bearing in mind the above definitions we could briefly point out that a maritime lien constitutes a security right in the “res” which arises with a claim and travels with the vessel and remains incomplete until it is enforced by an action in rem. In English law a rise to a maritime lien (or a traditional maritime lien) is given by a specific group of claims which are salvage, damage caused by ship seamen’s wages, master’s wages, master’s disbursements, bottom salvage, damage caused by ship, bottomry and respondetia (borrow money on the credit of the ship and of the cargo respectively, rather obsolete nowadays). Other maritime claims and specifically claims for the necessaries of a vessel such as bunkers, supplies, repairs, and towage as well as for cargo damages breach of charterparty etc. do not give rise to traditional maritime liens but only to what is known as statutory rights in rem. These rights, do not arise with the claim neither do they travel with the vessel but simply rights to arrest the ship in an action in rem procedure.