A Maritime Lien And Properties
Action in Rem brings to the Maritime property then elaborately discuss the them of action in rem. According to the History before 1852 English law was a common law, any dispute resolution matter or plaintiff bring claim to the personam. Continue process change in 19th century, introduced Admiralty court act and new jurisdiction came to force and any dispute resolution could bring to the owner property, In maritime sector such as a vessel. An action in rem fully followed by The supreme court act 1925.Action in rem also bring to the vessel for damaging cargo of vessel, unpaid freight and made pollution by vessel
2.0A maritime Lien is a claim against a vessel or other maritime property, which may be enforced by seizure of the property. A maritime lien therefore stands for a right to property in res or privilege claim upon a vessel or other maritime property in respect of services rendered to it or injury caused by property. A maritime lien exists independently of the possession of the object over which it may be claim and it is unaffected by change of ownership. It is a right, which is enforced against the thing itself or in other words it is a right in rem. A maritime lien attaches to the property or arises as soon as the particular injury is sustained or right of payment accrues, it remains incomplete. Un till The action in rem commenced.
The issue of property become important when several claim may arise against one vessel for instances a claim may arise due to a collision of the vessel with another vessel through negligent navigation and it salved by a third vessel and owner of the salved vessel may become insolvent and thus fail to discharge their liabilities. In such case maritime will arise. The Harbour Docks and piers act 1847(section 74) gives harbour authorities a right to detain vessel for a variety of reason namely quay and these rights are usually treated as for example cargo claim.
However The case “The Lyrma"(No 2)2 Lloyd’s Rep.30 illustrate that Possible to determine priority between contracts lien and damage lien. In this case contract lien salvage comes first as without salvage the ship may not be preserved. Wages are followed by the salvage and the Masters disbursement bottomry are followed by wages. According to this case liens arising from trot and also various lien arose from different time.The maritime lien can not be considered without paying any demerge to the ability of the claimant to arrest a vessel. On the other hand claimant to arrest a vessel which right to leads to effect a sale of the vessel becomes important. Action in rem could be brought against the vessel for claims relating to ownership,Co-owner ship or Mortgage,In addition to bring other claims against a vessel.The defendant was the beneficial owner or demise charterer of vessel at the time the writ was issued.Moreover possible to bring action in rem against any other vessel by the term of sister ship provision.
3.0Action in Rem Basically bringing to the maritime property. By history before 1952 English law was a common law for any Dispute resolution matter or plaintiff bring a claim to the Personam.continue process changes in 19th century, introduced Admiralty court act and new jurisdiction on came in to force and any dispute resolution could be brings to the owner’s property such as Vessel. An action in Rem fully processed according to the Supreme court act 1925.Moreover, some circumstances Action in Rem as a jurisdiction also applied to The Vessel,Cargo,Freight.All judgement Made against Maritime property.
Admiralty Action in Rem commenced for most claim of Dispute according to the admiralty jurisdiction under the supreme court act 1981.Action in Personam only effected where the claim is very limited under the Merchant shipping act 1985.According to The Queens branch division High court of justice would be Writ in particular form and issued by the Admiralty and commercial registry. On the other circumstances Action in Rem could be issued to the different property that’s belong to the same owner, As example sister ship arrest of same owner.
The case “THE BERNY"2 Lloyds rep.533 describing The Plaintiff bring Action in Rem to the sister ship caused by cargo damage belong to the Same owner. Called “Berny" also cargo owner brought action in personam against shipowner.Ultimately action in rem Applied to the sister ship. Suddenly one of the sister ship"Berny" visited the port within the jurisdiction. During the time frame cargo owner renew the writ. Afterword ship owner dismiss the claim of cargo owner but still cargo owner bring the previous court jurisdiction by issuing writs against her sister ship. They also argue that the renewal of Barney writ was the improper under the circumstances.
Following the case judgement writ could be renewed or entered until any sister ship visited restricted areas within the jurisdiction, Plaintiff issue the write to owners any of sister ship arrested and court only allowed procedure for action in Rem to the offending ship.
Action in Rem brought to the maritime property or vessel then suddenly changed of those properties. In this circumstances, there is a link between action in personam under section20(2)(c).According to the Dr. A Francis Julian’s consent, Two convention Admiralty jurisdiction and acquire jurisdiction are not similar, means arrest the ship under admiralty jurisdiction and normal arrest of ship. By the references the defendants is owner of the ship, not the ship herself. The ship is detained until the matter is settled.
By a competent court act vessel will be arrest under the custody of Marshall or authorised officer. Similar to the civil law plaintiff can bring action in Rem on owner vessel. All procedure are initiated only by action in personam.This action forward to the “Anglo Saxon Law".
Maritime lien is the first base for initiating an action in rem. For arrest of ship under Admiralty jurisdiction also similar sense when cargo claim occurred by ship. In this situation Action in Rem is same but Maritime lien and common lien are different. According to the Federal Maritime Lien Act. Follow the quasi in rem jurisdiction the action brought in to the person and personal property. Court issue attachment to ship in particular geographical area to arrest the ship. The plaintiff claim is predicted on the liability of the property itself. Most of the attachment issuing the court to sell the property of defendant to satisfy the plaintiff dispute.
The soya Margareta 1 Lloyd’s Rep.675 according to the case the charter party inserts a clause that the contract was to be governed by Swedish law. When vessel arrival in Venice port, the charterer discover the cargo had become contaminated while on board means cargo damaged by vessel. The charterer issue a writ in rem against soya Margarita and also belonging to the same owner ship soya Lovisa. The writ was served on soya Margarita in England territory.
However followed by the charter clauses Action in rem cannot be served outside jurisdiction. In this case outside jurisdiction prove very difficult unless defendant is based any EU country.
Antaios Company Naviera S.A V Ledesma Overseas Shipping corporation according the case The claimer The owner of the vessel under the voyage charterparty which provided that any dispute arise, it should be referred to arbitration in London and dispute arose regarding payment of freight. The plaintiff instituted proceedings in Hong Kong and serve action in rem to the vessel and arrest the vessel Ledesco un oblong to same owner.
The defendants applies to release the vessel under the administration of justice Act 1956,S3(4)1.Jusment was realise the vessel because dispute referred to the London arbitration centre. The Hong Kong court had no Admiralty jurisdiction to arrest the ship or bring action in rem under the Act 3(4)(b) not including a voyage charter and defendants were only voyage charterers of Antaios. In this case judgement always not possible bring an action in rem to sister ship.
The Antonis P Lemos1 Lloyds Rep.283,HL followed this case the claim endorsed on the writ in rem was a single claim for the damaged caused by negligence of the defendant. The admiralty judge giving judgement that writ was not the subject for dispute arising. In the appeal, The claimer provided that the claim in question arose out of an agreement of the nature specified. The House of Lords decided that the phrase “arising out of".
*Hill,C(1998).Maritime Law,London Hong Kong,LPP