Law and Practice of Maritime Liens, The
The Law and Practice of Maritime Liens, 1st Edition, (c) 2025 |
Chapter 17
Page 232
Judicial sale
Page 232
17.1 Generally
17.1.1 Judgment
Judicial sale follows judgment ordering a sale of the res—usually a ship—to take place. It is the end product of a process constituted by proceedings brought in rem to enforce a maritime lien or other claim where liability in rem is established upon a hearing. As Atkin LJ in The Tervaete 1 said a maritime lien gives rise to “a right to take proceedings in a Court of law to have the ship seized and, if necessary, sold”. Scrutton LJ in the same case 2 said having a maritime lien gives “a priority in claim over the proceeds of sale of [a] ship in preference to other claimants”. A sale will not be ordered of a res however which is not under arrest. 3 Field J for the US Supreme Court in The Moses Taylor in 1866 4 said the “distinguishing and characteristic feature of such suit [admiralty in rem] is that the vessel or thing proceeded against is itself seized [arrested] and impleaded as the defendant, and is judged and sentenced accordingly”. In jurisdictions where the in personam rule applies, liability in rem can only arise, and judgment can only follow, if there is liability in the res owner in personam. 5 Perhaps, however, the end product of the proceedings is reached sooner than expected should, for instance, judgment in default or summary judgment be available 6 and be entered so that the need for a hearing on the merits becomes unnecessary. This could happen for instance if the respondent or defendant fails to file a defence. Provision is made for this in the laws of the various jurisdictions. In the United Kingdom see r 61.9(3) of the Civil Procedure Rules. Perhaps even it is not necessary for a matter to reach judgment stage at all—in default or after a hearing—if the parties settle their dispute and reach agreement. A term of the settlement may be release of the res under arrest. In the United Kingdom a party is able to file a request for release under r 68.4(c) of those Rules in that event. As to the position in the United States in this latter regard see Supplemental Rule E(5)(c) of the Federal Rules of Civil Procedure.