Lloyd's Maritime and Commercial Law Quarterly
THE ADMIRALTY ACTION IN REM AND THE HOUSE OF LORDS
Nigel Teare*
In The Indian Grace (No. 2) the House of Lords reassessed the nature of an Admiralty action in rem by holding that in substance the defendants to such an action are the owners of the ship. Recent statements of the nature of an Admiralty action in rem based upon a century of authority were said no longer to be supportable. This article suggests that the reassessment is not justified by the reasons advanced by the House of Lords and that the reassessment failed to account for the striking characteristic of an Admiralty action in rem whereby a maritime lien or statutory right of action in rem is enforceable after a change of ownership. The reassessment, if it prevails, will cause previously settled questions of Admiralty law and practice to be revisited.
In Republic of India v. India Steamship Co. Ltd (No. 2)
1 the House of Lords has analysed the nature of an Admiralty action in rem and has held, for the purposes of the Civil Jurisdiction and Judgments Act 1982, s. 34, that an action in rem is against the owners of the ship. In reaching that conclusion Lord Steyn, with whose speech Lords Browne- Wilkinson, Hoffman, Cooke and Hope agreed, said that the orthodox analysis of the action in rem put forward by successive Admiralty judges and others over the last century can no longer be supported. While the House of Lords purported to follow and apply the decision of the Admiralty Court in The Dictator
2, the House in fact failed to apply that decision and ignored the manner in which the action in rem has been understood by the courts for over a century. Many procedural questions affecting the action in rem have long been settled. They may now be open to debate.
Lord Steyn said that the procedural theory of the Admiralty action in rem “stripped away the form and revealed that in substance the owners were party to an action in rem”.
3 The Admiralty action in rem was first explained in terms of the so-called “procedural” theory by Sir Francis Jeune P., in The Dictator. According to that theory, the action in rem had developed as a means of bringing the owners of a vessel before the court. The Dictator was followed by the Court of Appeal in The Gemma.
4 However, the theory could not explain the ability of the maritime lien to follow the vessel when it had been purchased from the person liable in personam. Although the courts have always followed The Dictator, the failure of the procedural theory to explain the ability of the
* Q.C., 4 Essex Court, Temple, London.
1. [1997] 3 W.L.R. 818. For the background to the case and a different perspective, see F. D. Rose, supra, 27.
2. [1892] P. 304.
3. [1997] 3 W.L.R. 818, 825.
4. [1899] P. 285.
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