By Marc De Man
De Man Pillet Barristers & Solicitors
2020 Boulevard Robert-Bourassa, Suite 1920
Montréal, QC, H3A 2A5 Canada
T (514) 985-2262
F (514) 844-0371
THE ACTION IN REM
About 25 years ago, when traveling to Buenos Aires, Argentina to handle a case in that interesting city, the late brilliant lawyer, Arturo Ravina, picked me up at my hotel and took me to a beautiful building on Calle Florida which housed the Naval Academy. There a gathering of the Argentinian Maritime Law Association was taking place, attended by such luminaries as Dr. Domingo Ray, Dr. Mathe, Dr. Lopez Saavedra and Dr. Cappagli. Dr. Chami was young man then and Jorge Radovich was quite humble in a corner, but always with that marvelous deep voice of his.
Without prior warning and preparation, Dr. Ravina simply asked me to address this illustrious audience. The rug was pulled from under my feet, but suddenly I blurted out and asked “Why do you not have the action in rem” and went on to set out the difficulties I experienced in arranging for the arrest of a ship at the Port of Buenos Aires and any further suggestions.
My topic today is, simply put, the action in rem.
What are its origins?
It is obviously a Roman law derivative.
2. THE ACTION IN REM AND THE MARITIME LIEN
Actio in rem – Actio in personam
In rem means in the thing itself. The action in rem is against an item of property and not against a person.
In Latin, in rem means “against or about a thing”. It derives from the word “res”, which means “the thing”.
It is the ship, or cargo, or freight, or even the proceeds of a sale, that is sued and not the owner of the ship, cargo or freight. It is the ship that suffers the consequences. The owner suffers the consequences if it is an action in personam.
It is the most pernicious and efficient of weapons used by those who have a claim against the ship, be it under Convention, or a statutory grant of jurisdiction or maritime custom.
The action in rem was inextricably intertwined with the maritime lien. The case of The Bold Buccleugh (1852) 7 MOO PC 267 is the leading authority on the essence of a maritime lien. It is the foundation for a proceeding in rem, which in turn is the legal machinery to perfect a right born at the moment the lien attaches. In other words a maritime lien is a claim or privilege upon a thing (res) to be carried into effect by legal process, namely the action in rem.
The question then arises in relation to the Civilian nature of this extremely efficient legal weapon.
To answer this question, we have to define Maritime Law.
3. CIVILIAN RECOURSE – MARITIME LAW DEFINED
Substantive Maritime Law is in itself a legal system, having its own particular law on various areas:
- sale (as regards sale of ship)
- hire (as regards charter parties)
- contract (as regards carriage of goods by sea)
- insurance (marine insurance, undoubtedly one of the first forms of insurance)
- corporate law
- its own particular procedures (the action in rem, in personam and attachment
- its own Courts, the Admiralty Courts and its own lex mercatoria (the lex mercatoria or general maritime law)
Maritime Law also consists of modern international Conventions, including Conventions on collision, salvage, carriage of goods by sea, maritime liens and mortgages, and shipowners’ limitation. These Conventions have been able to bridge the gap between the two principal Western legal families, namely the Civil and the Common law and are applied similarly by the judicial institutions of different jurisdictions, such as the UK and France. These Conventions foster international harmonization of law, by promoting a constructive synthesis of the legal traditions from which they sprang.
It may further be stated that maritime law is a mixed legal system in its own right, found in all jurisdictions, including those belonging to only one major legal tradition. Maritime Law is Civilian in its origin with an infusion in the last two centuries of English common law principles and innovation.
Let me then delve into this aspect in greater detail.
4. CONFLICT BETWEEN THE ENGLISH CIVILIANS AND COMMON LAWYERS
It should be remembered that in England there was a strong Civilian trait for quite some time. In fact, there was a historically difficult relationship between the common law courts and the Admiralty Courts since the creation of the Admiralty Courts as far back as the late 13th century.
In fact, it took a full five hundred years into the late nineteenth century before the tension between the civilians and the common lawyers was resolved through the Admiralty Court as a unique judicial institution applying the Civil law and conferring its power in the form of Admiralty jurisdiction on the common law courts.
5. ORIGINS AND DEVELOPMENT OF THE ENGLISH HIGH COURT OF ADMIRALTY
Originally, the English High Court of Admiralty was an instrument of the office of the Lord High Admiral. The English Crown delegated its Royal Prerogative in maritime matters to the Admiral. The Admiralty Court came into existence to deal with disputes within the Admiral’s jurisdiction.
More specifically, Roman law was taught at Oxford and Cambridge, but covered only probate and matrimonial law insofar as both were inherited from canon law, and maritime law, adopted from the lex mercantoria through the Bordeaux trade. The Roman law encompassed civil law developed mainly from customary law that was refined with case law and legislation. Canon law further refined court proceedings. Maritime Law adopted the Roman procedure of in rem actions, and the High Court of Admiralty in England, from the outset, used as a procedural tool the action in rem.
Another feature of the High Court of Admiralty was its application of principles of equity based on many sources such as Roman law and natural law.
It is interesting to emphasize the resentment of the Common Law Courts against the power exercised by the Civil Law Court of Admiralty. From 1296 onwards the common lawyers tried to limit the Admiralty jurisdiction to a restricted field covering only “things done upon the sea”.
However, the common law courts could not effectively deal in their subject and practice with pre-judgment attachments of ships. They could not apply the action in rem. This was exclusively part of the Court of Admiralty jurisdiction.
6. LORD STOWELL – PRIZE LAW
The Admiralty Court had a large resurgence in its civil jurisdiction in the early 1800’s due to its prize law jurisdiction. The great maritime wars of the period (the Napoleonic wars) gave rise to the introduction of prizes of war in the English jurisdiction. The prize that made it back to the capturing vessel’s country, namely England, would be sued in the Admiralty Court in rem against the vessel itself.
Lord Stowell, the then judge of Admiralty, raised the Admiralty Court at that time to an important position. There was a constant appeal to the Prize Court. The prize that was brought to England would be sued in the Admiralty Court in rem against the captured vessel itself. To convey clear title to its new owners the Prize Court had to condemn the vessel.
7. EXTENSION OF THE JURISDICTION OF THE ADMIRALTY COURT
In 1840, an Act of the British Parliament was passed to improve the practice and extend the jurisdiction of the Court. In that year, there was a movement for the revival of the English Admiralty jurisdiction. Admiralty Court Acts were passed in 1840, 1854, 1861 which provided broader and fuller jurisdiction to the High Court of Admiralty. Its general jurisdiction was extended to title and mortgages of ships, salvage, towage, necessaries, building, equipping and repairing ships, claims for damage to goods and bills of lading, seaman’s wages, etc. This certainly went considerably further than “a thing done upon the sea”.
During this time, great Civilian judges such as Dr. Stephen Lushington and Sir Robert Phillimore rendered important decisions. This was an epoch where the background showed the development of steam shipping, giving rise to increased commerce and increased incidents of salvage, collision and damages. All of this increased the importance of the Admiralty Court in its Civilian development. But lurking in the shadows were the common law lawyers and their resentment towards the Civilians.
Before dealing with the disastrous collapse of the Civilians, I need to describe to you who they were and how they developed.
As stated earlier, the Civilians were the descendants of the canon lawyers, and retained their heritage by continuing their monopoly over Ecclesiastical as well as Admiralty practice.
However, Henry VIII abolished the Faculties of Canon Law at Cambridge and Oxford. This suppression of the Canonists led them to become Civilians principally in the practice of Civil Law.
8. DOCTORS’ COMMONS
For many centuries, the advocates and judges of the Admiralty Court formed part of the “College of Civilians” or more particularly “Doctors’ Commons”.
Doctor’s Commons was an offspring of Trinity Hall, Cambridge, itself founded in 1350 as a college for study of the civil and canon laws modified by statute law.
Doctors’ Commons was the equivalent of a rather private club. The number of advocates at its incorporation comprised of 17 members, and in 1858 it reached 26 members. These members at the time had an absolute monopoly of Admiralty matters in England.
To become a Fellow of the College of Advocates, one had to have earned a doctorate in civil law, at either Oxford or Cambridge. This was a strict requirement. No person in holy orders was admissible despite the ecclesiastical functions of the College and its concern with canon law. It was done to avoid an obvious conflict of interest.
The candidate had to be admitted as an advocate of the Arches and elected by a majority of the Fellows of the College, approved by the Archbishop of Canterbury directed to the dean of the Arches, and this admission had to be preceded by one year’s Court attendance, known as the “Year of Silence” during which the candidate was not allowed to plead.
The qualification process, as you may well imagine was quite stringent. These were the pure CIVILIANS, both judges in the Admiralty Court and proctors (coming from the Latin word and tradition “procurator”).
These Doctors had a vast and unique knowledge and the Admiralty Court was thus governed by the civil law, the laws of Oleron, and the customs of the Admiralty. They fashioned, created innovated in the field of Admiralty Law and Procedure. Amongst them, until the end, you have Lord Stowell, Dr. Stephen Lushington and Sir Robert Phillimore (the last Civilian judge), all of whom perpetuated and approved the use of the arrest in rem.
Allow me to provide you with further details.
Doctors’ Commons occupied a magnificent building behind St. Paul’s Cathedral where the Admiralty and Ecclesiastical law disputes were argued.
The premises where the doctors sat were sumptuous as was their attire. As judges in general, they wore scarlet robes, grey wigs, academic hoods and black velvet doctors’ bonnets. As proctors they wore dark blue gowns with the hoods of their degree.
Charles Dickens in David Copperfield described Doctors’ Commons as “a lazy old nook…that has an ancient monopoly in disputes among ships and boats”.
This tranquil atmosphere of Doctors’ Commons was shattered in 1853 by the revelation of the Swabey affair.
Mr. Swabey was the Registrar of the Admiralty Court, who embezzled in excess of £75,000.00. This was discovered in November, 1853.
This affair prompted the British Parliament to examine closely the function of the Doctors’ Commons. In addition, the expenses of the Court became exorbitant due to the replacement of money by stamps and very difficult printing problems arose. These procedural expenses angered the proctors practicing in the Admiralty Court.
The Court of Probate Act of 1857 abolished the special privilege of the Civilians alone to practice Admiralty and thus, in turn, caused the end of their corporate existence.
In March, 1858, the College of Civilians or Doctors’ Commons was liquidated. In 1859, an Act was passed which enabled common law lawyers to practice before the Admiralty Court.
The common Hall of Doctors’ Commons was demolished in 1861, its splendid library dispersed, and many of its volumes remain today in the Admiralty registry or in storage in the basement of the Royal Courts of Justice.
9. TRANSITION FROM THE CIVIL TO THE COMMON LAW
Despite the destruction of the Doctors’ Commons as an English institution, a few doctors continued to live on and blossom. Under their care, the Admiralty Court underwent a great transition from the Civil to the Common law, but under their care, the Court retained its civilian character despite this transition. In fact, the action in rem survived and flourishes to this date, but in a much more streamlined fashion.
As an example, what is today called the Affidavit to Lead Warrant was called in the early 1800’s the Affidavit of the cause of action.
The service of the warrant of arrest has been simplified today. In the early 1800’s, the warrant was served upon the vessel by the Marshall by exhibiting the original and holding it to the main mast, then nailing a copy in its place. This was accompanied by the overt practice of chalking a fowled anchor, symbolic of the jurisdiction of the Admiralty Court on some prominent space topsides in addition to the service of the warrant. The Marshall then executed a certificate of service filed in the Registry together with the original warrant.
Today, this Warrant with the Statement of Claim and Affidavit to Lead Warrant are all served on board the vessel. The warrant is scotch-taped on the bridge in front of the wheelhouse. Upon service of the warrant of arrest, the same is served in my country, Canada, at the Pilotage Authority, the Port Authority and Customs Authority. The vessel is therefore paralyzed for all intents and purposes.
10. MAINTENANCE OF THE ACTION IN REM
The action in rem is very popular amongst maritime claimants that can make use of it. It is of immense convenience. Ships, as we all know, and as stated by the Canadian Supreme Court, are “elusive”. The action in rem can bring advantages which are lacking in an action in personam which may be difficult if not impossible to institute. The action in rem forces jurisdiction and opens the way to obtaining adequate security in lieu of the ship and peace of mind that there will be an ultimate satisfaction. If security is not provided, the Court may sell the “res” in order to satisfy the judgment for the claim, subject to the question of priorities.
Security is, of course, of the utmost importance.
11. LETTER OF UNDERTAKING
This is where the Letter of Undertaking comes into the picture. Yes, one can free a vessel with a bail bond or bank guarantee, but it is the P & I Letter of Undertaking which is most often used to free the ship from an action in rem.
Therefore, it becomes imperative that the Letter of Undertaking be properly worded (set up LOU as an example).
The LOU must be very clear as to its beneficiary. If it covers a cargo loss, the party having title to the cargo has to be mentioned and the Cargo Underwriters involved.
It could be issued to avoid the action in rem/arrest all together or subsequent to the institution of the action in rem and consequent arrest. The sum sought should be that determined plus one third to cover interest and costs. It should state the local court, which should have the jurisdiction to hear the case, and it should remain valid after a final judgment (including Appeals up to the highest court of the land) or after settlement. In Canada, the local court is the Federal Court of Canada, and the highest court in the land is the Supreme Court.
The specter of the action in rem has prompted settlements well before even an arrest takes place. The clause “refraining from arrest” is very important example – the Zealand Beatrix.
One year ago, the Zealand Beatrix loaded bags of cocoa beans in Abidjan, Cote d’Ivoire and Lagos, Nigeria. When she berthed at Trois-Rivières in the St. Lawrence River, Province of Quebec, Hold No. 3 was flooded with sea water. Immediately surveyors were appointed. We, representing cargo interests, contacted the P & I Club correspondent and obtained an adequate LOU. The surveyors agreed on the cause of the loss and quantum of damages. We then sat with the P & I correspondent and the claim was settled immediately without the necessity to arrest the vessel or even institute legal proceedings.
The Release is provided if the LOU is satisfactory. The Release must be filed in the Registry of the Court.
To conclude, the action in rem is indeed a powerful weapon, and I submit to you that it should form part of the juridical arsenal of all the jurisdictions that deal with maritime claims, including maritime liens. It is civilian in origin. Therefore, why wait to introduce it in all the civilian jurisdictions? Why should it be exercised principally by common law jurisdictions? The great paradox is that it is a civilian procedure originally but used by the Common law jurisdictions. In fact, the majority of the Civilian jurisdictions ignore it. For those who do not have this procedural recourse, I humbly submit that a simple amendment to Civilian Codes of Procedure or a legislative enactment is all it may take to introduce the action in rem.