consolidating all claims into one proceeding and preventing a claimant from racing
to judgment in another forum.
23
2.2 In Rem Actions and the Personification Doctrine
An in rem action is an action against the arrested res itself, and any judgment is thus
limited to the value thereof or the value of the bond or stipulation substituted for the
res to obtain its release.
24 In an admiralty proceeding in rem, a person is not made a
party defendant, but a ship or other thing is seized and treated as the defendant, and a
decision is sought against the res rather than its owner. A judgment in an in rem
admiralty action is said to be good “against all the world.”
25 An action in rem based
on an admiralty claim may be brought only in a federal court and is initiated by
“arresting” the property. The property must be subject to the jurisdiction of the
court.
26 Further, in Rainbow Line, Inc. v. M/V Tequila, the Second Circuit held that
the in rem action was only available to enforce a maritime lien or as otherwise
permitted by statute.
27 Under the Federal Maritime Lien Act (FMLA), any entity that
supplies a ship with “necessaries,” such as bunker fuel, “on the order of the owner or
a person authorized by the owner” has a maritime lien on the ship and is entitled to
bring a civil action in rem to enforce that lien.
28
The underlying principle behind the in rem action is the doctrine of personification. The personification doctrine can be traced back to the practice of the English
admiralty courts in the sixteenth century and possibly prior to that. But English
courts themselves abandoned it in the late nineteenth century in favour of what is
known as the “procedural theory.”
29 American courts supposedly adopt a true
personification theory, rooted perhaps more in terms of continental European notions
than in English ones, viewing the suit as against the ship for her wrong independent
of the owner’s fault. The U.S. Supreme Court explained the fiction of “personification” in the in rem proceeding of Madruga v. Superior Court of State of Cal. in & for
23 UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE. Ltd., 2015 AMC 2070, 2086
(S.D.N.Y. July 1, 2015).
24 Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 364, 1996 AMC
163, 166–67 (2d Cir. 1995).
25 See 2 Am. Jur. 2d Admiralty § 26; see also C.J. Hendry Co. v. Moore, 318 U.S. 133, 136, 1943
AMC 156, 158 (1943); Rounds v. Cloverport Foundry & Mach. Co., 237 U.S. 303, 306 (1915).
26 Force (2013), p. 173.
27 Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 1028, 1973 AMC 1431, 1436 (2d Cir. 1973).
28 46 U.S.C. § 31342 (2012).
29 Davies (2000), p. 341 (stating that the “procedural theory” conceives of the action in rem as
simply a device for forcing the appearance of the shipowner in personam rather than truly as an
action against the ship itself).
Shipowner Protection in the Wake of the Collapse of O.W. Bunker: The. . .
681
to judgment in another forum.
23
2.2 In Rem Actions and the Personification Doctrine
An in rem action is an action against the arrested res itself, and any judgment is thus
limited to the value thereof or the value of the bond or stipulation substituted for the
res to obtain its release.
24 In an admiralty proceeding in rem, a person is not made a
party defendant, but a ship or other thing is seized and treated as the defendant, and a
decision is sought against the res rather than its owner. A judgment in an in rem
admiralty action is said to be good “against all the world.”
25 An action in rem based
on an admiralty claim may be brought only in a federal court and is initiated by
“arresting” the property. The property must be subject to the jurisdiction of the
court.
26 Further, in Rainbow Line, Inc. v. M/V Tequila, the Second Circuit held that
the in rem action was only available to enforce a maritime lien or as otherwise
permitted by statute.
27 Under the Federal Maritime Lien Act (FMLA), any entity that
supplies a ship with “necessaries,” such as bunker fuel, “on the order of the owner or
a person authorized by the owner” has a maritime lien on the ship and is entitled to
bring a civil action in rem to enforce that lien.
28
The underlying principle behind the in rem action is the doctrine of personification. The personification doctrine can be traced back to the practice of the English
admiralty courts in the sixteenth century and possibly prior to that. But English
courts themselves abandoned it in the late nineteenth century in favour of what is
known as the “procedural theory.”
29 American courts supposedly adopt a true
personification theory, rooted perhaps more in terms of continental European notions
than in English ones, viewing the suit as against the ship for her wrong independent
of the owner’s fault. The U.S. Supreme Court explained the fiction of “personification” in the in rem proceeding of Madruga v. Superior Court of State of Cal. in & for
23 UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE. Ltd., 2015 AMC 2070, 2086
(S.D.N.Y. July 1, 2015).
24 Cent. Hudson Gas & Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359, 364, 1996 AMC
163, 166–67 (2d Cir. 1995).
25 See 2 Am. Jur. 2d Admiralty § 26; see also C.J. Hendry Co. v. Moore, 318 U.S. 133, 136, 1943
AMC 156, 158 (1943); Rounds v. Cloverport Foundry & Mach. Co., 237 U.S. 303, 306 (1915).
26 Force (2013), p. 173.
27 Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024, 1028, 1973 AMC 1431, 1436 (2d Cir. 1973).
28 46 U.S.C. § 31342 (2012).
29 Davies (2000), p. 341 (stating that the “procedural theory” conceives of the action in rem as
simply a device for forcing the appearance of the shipowner in personam rather than truly as an
action against the ship itself).
Shipowner Protection in the Wake of the Collapse of O.W. Bunker: The. . .
681