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Maritime LAW - Essay Example

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The Action in Rem is The Action in Personam Dressed Up. A Critical Analysis Under maritime law, a maritime lien or res is a secured right which is peculiar to this industry. A lien or res is a charge on property for payment of a debt, and it refers to a property right in a ship or vessel offered to a creditor by law as security for the loan or debt or claim emanating from certain service offered to ship to facilitate her use in navigation in repairing a damage or an injury caused to the ship in navigable waters…
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Maritime LAW
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Download file to see previous pages The notion behind arresting the ship rests in the notion of the ship itself as being the wrongdoer and thereby liable to arrest and offer the same for sale to settle the claims by a creditor. It normally involves securing the appearance of the defendant ship owner and corroborates the jurisdiction of the Court. If the Court permits the maritime creditor’s claim, the verdict is then enforceable against the detained res by judicial sale or security given to assume its place. (Force et al, 2006:262). An action in rem may be initiated against a ship in connection with which a claim arose or against a sister ship. As per the decision held in Gatoil Inc. v Arkwright –Boston Co [1985] A.C. 255 at 265, under the Arrest Convention, there exists a right to initiate an action in rem against another ship of the owner. (Gault et al: 2003:31). An action in rem can be initiated in the High Court against the ship where there exists a maritime lien on the ship and in cases where there exists a statutory right to proceed in rem. (Gault et al 2003:31). For many centuries, action in rem is the remedy most sought for and used to, and it is being the specialty of the Admiralty Court and for the Courts having parallel jurisdiction and it offers a chief benefit over the same. For initiating any action against a ship is the specialty to proceed in the Admiralty Court directly, and it has been regarded as the illustrious aspect of the Admiralty jurisdiction. Even from the Elizabethan era, the action in rem is being employed in the Admiralty court and however, during the middle of the nineteenth century, the modern theory of maritime liens, i.e. rights against the ship started to evolve. The starting of consideration of the action in rem is itself must lie in the onset of the theory of maritime liens as the two concepts have become interconnected. (Wiswall 1970:155) As per Jervis, maritime lines were the founding stones of actions in rem which was itself a maxim as laid down in “The Bold Cuccleugh” where a solid substantive verdict was given that the action in rem was a proceeding directly against a ship and not a procedural mechanism to enrich personal jurisdiction over owners. (Wiswall 1970:158). Thus, in the case of action in rem, action in personam cannot be claimed was vitiated by the verdict given by Sir Francis Jeune in “The Dictoar “in 1891 and when action being in rem, and if any bail that had been offered should stand as a substitute for the ship, and it should be treated as the limit of the liability and it was not proper to award a decree or a judgement in personam in an action in rem. Thus, separate legal proceedings should be initiated for an action to be brought in personam was needed mainly to obtain satisfaction of the balance of the savage award. (Wiswall 1970:158). Traditionally, an action in rem has been considered as an action against the ship itself and does not refer to any action against a ship owner until and at least the ship owner acknowledges services of the claim form. “The House of Lords “in “The Indian Grace “held that under the “s.34 of the Civil Jurisdiction and Judgments Act, 1982 “, an “ ...Download file to see next pagesRead More
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