Enforcement of Maritime Claims

David Jackson

• Publisher: Informa Law from Routledge
• Year: 2013
• ISBN:
  9781135119225
• Edition: 4
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

The fourth edition consists of consideration of all aspects of the jurisdiction of English courts and arbitrators over maritime claims, applicable law, judgments, remedies and security interests, including the continuing critical impact of membership of the European Union. The comprehensive updating encompasses legislative, convention and judicial developments since the publication of the last edition in 2000 – in particular the replacement of the amended Brussels Jurisdiction and Judgments Convention 1968 by Council Regulation 44/2001 and its effect on other maritime convention jurisdiction provisions, relevant Civil Procedure Rules and judicial interpretation of both.

Part I
Jurisdiction and Modes of Enforceability

Chapter 1
Sources of Admiralty Jurisdiction

1.1 As will be apparent from the Introduction, the sources of English Admiralty jurisdiction are diverse. A claimant seeking the framework must consider statute, civil procedure rules and judicial doctrine, and must not always expect to find reference from one source to another. The starting point is the Supreme Court Act 1981,¹ but in some respects the Act simply triggers the need to define concepts used, and makes no reference at all to some elements which are inherent in the jurisdictional framework. It is, therefore, necessary both to sound a cautionary note as to the limits of the Supreme Court Act and to review the other sources to discover the framework or Admiralty jurisdiction.

1.2 The Supreme Court Act itself reflects the two often inconsistent forces of national historical development and international agreements. Conventions play an ever increasing role as a foundation for maritime legislation. More, membership of the European Union and Free Trade Association has as a consequence agreement on jurisdictional criteria which hitherto had no part to play in English law. As such criteria apply only within the European area, there are now in English law two sets of rules—one for cases connected with the Union or Association and the other for the remainder.

1. The Admiralty Framework of the Supreme Court Act 1981²

1.3 The statutory framework is founded on:

• (i) a list of claims within the jurisdiction (including the reference to past and future jurisdiction the latter limited to jurisdiction in regard to ships or aircraft directed by rules of court to be exercised by the Admiralty Court (s.20):
• (ii) a specific reference to the "aritime lien"as a ground for an action in rem (s.21(3));
• (iii) enforcement of claims in (i) through actions in personam and/or actions in rem (ss.21–24).

(i) The List of Claims (Section 20)³

1.4 The detailed nature of the claims and any additions to the list through the gateway of past jurisdiction must be discovered through judicial doctrine and, possibly in the latter aspect, statutes now repealed. Although it may be expected that a statutory skeleton would need judicially created flesh it will be seen that the statutory bones are not always as connected with each other as is desirable. In particular, the reference to past jurisdiction creates problems of uncertainty and lack of uniformity of approach. Such reference requires historical reference to an age in which concepts now well established were in their infancy, in which jurisdictional quarrels with other English courts were rife and in which there was no thought of a jurisdiction based on international Conventions.⁴

(ii) The "Maritime Lien" (Section 21(3))⁵

1.5 The maritime lien is one half of the dual key to English Admiralty jurisdiction—the other being the action in rem. The maritime lien attaches to a restricted number of maritime claims as established through judicial doctrine. It is enforceable through arrest and is one of the most powerful security interests in English law. Nowhere in the Act is "aritime lien" defined either by concept or content—but the Act provides in section 21(3):

"(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the High Court against that ship, aircraft or property."

Under this provision the action in rem extends to "property" but the property must be connected with the claim. Further, from the drafting of the provision as a whole it seems that the ability to rely on a maritime lien as a ground of an action in rem is in addition to that of the action in rem brought on the basis of a claim specified in section 20. But there is no clue in the statute of a relationship (if any) between those claims and the "maritime lien". In this respect as in others the Act assumes as much, if not more, than it provides.

(iii) Actions "in Personam" and Actions "in Rem" (Section 21)⁶

1.6 The Supreme Court Act 1981 provides for enforcement of each category of claim specified by the Act as within the Admiralty jurisdiction by an action in personam and, in respect of some, also by an action in rem. It also provides that a maritime lien may be enforced by an action in rem. However, the Act does not indicate the characteristics of either type of action, the relationship between them or, save in respect of collision actions, any prerequisites for hearing claims having a foreign element.⁷ Rules relating to these matters must be sought in other statutes (particularly the Civil Jurisdiction and Judgments Acts 1982 and 1991), rules of court (now Civil Procedure Rules) and judicial doctrine.

"Action in personam"

1.7 In the context of a maritime claim the action in personam simply describes the process for enforcing a claim which would apply in the English legal system whatever the nature of the claim. It describes an action (other than that concerned with status) aimed at a defendant, the purpose of the action being to seek a remedy against that defendant. It is not restricted to actions alleging fault of the defendant or even that any act of his necessarily is the basis of the claim. It includes (for example) the enforcement of a mortgage or a charge against the mortgagor or a purchaser of a ship as well as the more obvious enforcement of a charterparty claim against the other party to the charter.

1.8 In this context, therefore, the phrase does not describe a personal as distinct from a property claim.⁸ The accurate if perhaps hardly helpful definition of an action in personam is simply that it is not an action in rem.

The Supreme Court Act 1981

1.9 The Supreme Court Act 1981, section 21(1), provides that any claim within Admiralty jurisdiction may be enforced by an action in personam.

"Action in rem"

1.10 The action in rem is the second half of the dual key to English Admiralty jurisdiction. This action is available only in the Admiralty jurisdiction. Its characteristics are complex, reflecting the current state of an unfinished development in which legislation has played a leading but not exclusive part.

The Supreme Court Act 1981

1.11 The Supreme Court Act does not state in express terms that an action in rem can only be brought as specified by it—but in English law its availability is restricted to those claims in relation to which the Act provides that it is available. The Act provides (in section 21) that an action in rem may be brought in relation:

• (a) to the claims set out in s.20(2) paras (a)–(c) and (e)–(s);
• (b) any maritime lien;
• (c) any claim enforceable thereby in the future or (arguably) in the past.⁹

1.12 Only in relation to one claim specified in section 20(2) does the Act not provide for an action in rem—"damage received by a ship" (section 20(2)(d)). The action in rem is available for all other claims but its scope is not identical in respect of each. The Act does not define an action in rem. But it indicates a traditional central theoretical feature in providing that such an action is brought " against" the ship or property in question (i.e. against a thing rather than, as with the action in personam, against a person). However, any thought that this may exclude a person having a relevant interest in the ship as a defendant has disappeared with the approach adopted by the House of Lords in 1997 in The Indian Grace (No. 2).¹⁰

1.13 The essential elements of the action in rem lie in its development over at least two centuries as the hallmark of Admiralty jurisdiction, and it is perhaps surprising that they are still not finally settled. Historically they are inextricably connected with the " maritime lien"—the other half of the dual key.

2. Sources outside the Supreme Court Act 1981

1.14 It is obvious even from this brief summary that the Act provides, at best, a skeletal framework. The search for sources cannot be restricted to judicial development of Admiralty jurisdiction only, for the Admiralty Court is a court within the Supreme Court of Judicature. As such, it is commanded to apply principles and rules applied by other courts within that structure—it must take into account rules of common law and equity and statutory provisions.

1.15 It follows that before plunging below the surface of the Admiralty provisions of the Supreme Court Act 1981, its provisions should be put in the context of the court structure and once below the surface the effect of that structure on the rights and remedies in the maritime area should continually be borne in mind. The Supreme Court Act 1981 continues basic provisions of the Judicature Acts of...

Table of contents

• Cover Page
• Half Title page
• Series page
• Title Page
• Copyright Page
• Preface
• Outline Table of Contents
• Detailed Table of Contents
• Table of Cases
• Table of Statutes
• Table of Statutory Instruments
• Table of Conventions and Treaties
• Introduction Maritime Claims and their Consequences
• Part I Jurisdiction and Modes of Enforceability
• Part II Jurisdiction of English Courts and Arbitral Tribunals
• Part III Interim Relief
• Part IV Security on the Merits— The Lien Concept
• Part V Remedies
• Part VI Foreign Law
• Appendix 1 Statutes
• Appendix 2 Council Regulation (EC) No 44/2001 of 22 December 2000
• Appendix 3 The Civil Jurisdiction and Judgments Order 2001 2001 No. 3929
• Appendix 4 Conventions
• Index