Maritime Lien in UK Law

"(4) In the case of any such claim as is mentioned in paragraphs (d) to (r) of subsection (1) of section one of this Act, being a claim arising in connection with a ship, whore the person who would be liable on the claim in an action in, personam was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, the Admiralty jurisdiction of the High Court and (where there is such jurisdiction) the Admiralty jurisdiction of the Liverpool Court of Passage or any county court may (whether the claim gives rise to a maritime lien on the ship or not) be invoked by an action in rem against -

The Master signed the Bills of Lading on 9th April 2001. The same day, the charterers intimated a small claim for short shipment. The owners' response on the 12th April was a demand for payment of the freight in full, pending particularisation of any claim. The charterers made a proposal on the 13th April for payment of freight, less a shortage of 100 metric tonnes and other expenses. This freight claim was in due course settled on about the 20th April.

On 31st May 2001, the vessel was sold by Rosa to Alexia Navigation Ltd ("Alexia"). The Maltese register was duly amended to that effect in June 2001. On 16th July 2001, the claimant instituted arrest proceedings in the maritime court in Lisbon. These proceedings were instituted against both Rosa and Alexia. Despite the sale, Epsilon Rosa was arrested on the 19th July following a short oral hearing.

Secondly, in considering whether a stay should be granted the Court must take into account (i) Any advantage to the Plaintiff; (ii) Any disadvantage to the defendant: this is the critical equation, and in some cases it will be a difficult one to establish. Generally this is done by an instinctive process�that is what discretion, in its essence, is. A bona fide advantage to a plaintiff is a solid weight in the scale, often a decisive weight, but not always so.

In the nineteenth century it was believed that an admiralty action could only be brought in respect of a maritime lien: The Bold Buccleugh7 Moore 267 (P.C., 1851). By statute actions in rem were subsequently permitted in new categories. While the action in rem was still confined to maritime liens, courts sometimes ascribed personality to a ship. The ship was regarded as both the source and limit of liability. After the Judicature Acts the personification theory fell into decline.

The Claim Form issued in this case was in Form ADM1 and it was headed "Admiralty claim in rem". In my judgment it should have been clear to Ms Hunter-Davies that the Claim Form she was issuing was an in rem Claim Form and that including the name of the Defendant owner did not change that. There is no such thing as a hybrid or combined in rem/in personam Claim Form. Separate Claim Forms are required for both in rem and in personam proceedings as PD61 makes clear.

Even if points (b) and (c) were made out (and they were disputed), they were not the reason why the in personam Claim Form was not issued in time. This is not one of those cases where a party was lulled into a false sense of security because of discussions with the other party. MFB appreciated, notwithstanding those discussions, that a Claim Form needed to be issued, and did so.