Action in Rem

Under the Admiralty provisions, an action in rem may be invoked for two categories of maritime claims.
In the first category where a maritime lien exists and attached to the ship or property even if the owner
being not liable. An action in rem is a unique aspect of the Admiralty Jurisdiction. It was originally
founded on the concept of maritime liens. Such an action was only allowed and enforceable against the
property arrested, on the idea that a maritime lien attached to the property from the moment of the
creation of such a claim. That is the reason that the action was named and became popular as an action in
rem1. In the beginning, the right to enforce a maritime lien by such an action was confined to an action
against the ship by which the damage was caused, or in relation to which the maritime lien arose, and it
travelled with the ship, even if it was in the hands of an innocent purchaser.2 Later, with the passage of
time and to meet the demands of the maritime trade and for administration of justice, this jurisdiction was
extended to other maritime claims provided by the statutes regardless of whether or not the claims gave
rise to maritime liens. Other maritime res were included for example, cargo and freight against which an
action in rem can be enforced. The action in rem, which was designed to compel the owner of the res to
appear in the court and answer the claim against it should not be confused with a maritime attachment,
also called quasi in rem action. The maritime attachment was based upon the availability of proceeding
against a person interested in the property, by arresting the person or his property. The common law
courts strongly condemned the proceedings to arrest the person making them outdated. Consequently, the
power of arrest remained enforceable in relation to the property in dispute.3

Action in Rem- Dominant Feature of Admiralty Jurisdiction

An action in rem has been termed as ‘the dominant feature of Admiralty practice’ providing ‘the
procedure of action most commonly and conveniently resorted to and opted by maritime claimants’.4 It is
based in ancient practices and customs of the maritime municipalities and ports. Gorell Barnes J. called it,
an ‘ancient right’.5 An action in rem has many advantages in comparison with ordinary proceedings or
even an action in personam. For example, in such proceedings, the party or parties interested in the res are
compelled to come forward to defend the claim or leave the res to answer the claims. In The City of
Mecca,6 Sir Robert Phillimore called it, “one of the special advantageous incidents to the jurisdiction of

1 Halsbury’s Laws, vol. 1, Para 305

2 The Ripon City [1892] P 226, p. 241-42
3 For historical overview and details of action in rem see: Mandaraka-Sheppard A. Modern Maritime Law and Risk Management

4 Thomas DR, Maritime Liens, 1980, 37.

5 The Ripon City, supra, p. 240-1
6 The City of Mecca [1879] 5 PD 28, at 34
the Court of Admiralty.” The action in rem is brought against the thing, i.e. maritime res itself which
usually is a ship, though; its owner may be enjoined in the proceedings as well. The action may be
brought against other maritime properties say cargo, freight etc.7In the said case proceeds of the ship sale
were the subject matter of the proceeding in rem.

Strong and Effective Remedy

An action in rem is a special action in a court of admiralty and, in fact, is a distinct proceeding.8 In Baltic
Shipping Co. Ltd. v. Pegasus Lines SA,9 McKay J. observed that ‘the writ in rem and consequently, the
arrest of a vessel (or other maritime property) is a strong and effective remedy for a maritime claimant.
Such a strong and effective relief is not available in ordinary proceedings’. Generally speaking, in
ordinary proceedings, obtaining a judgment by a plaintiff in his favor may not be cumbersome but its
execution may be especially where no security is available for the satisfaction of the judgment. But in
proceedings in rem, no such difficulty arises to the extent of the value of the res. In The Cap Bon10, the
Court observed that the commencement of the proceeding (in rem) empowers a warrant to issue for the
arrest of maritime res which is for the purpose of providing security for the plaintiff in respect of any
judgment that may be obtained as a result of hearing and determination of a claim.

7 See The Anna H [1995] 1 Lloyd’s Rep. 11 p.19; Wallace v Proceeds of the ship Otago [1981] 2 NZLR 740 at 752
8 Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] 157 FCR 45
9 [1996] 3 NZLR 641, p. 650
10 [1967] 1 Lloyd’s Rep 543 p. 547