Conditions to Institution of Action in rem
S J Tubrazy
Action in rem can be instituted against the ship or the property on which maritime lien is claimed. Court had to see if the plaintiff has maritime lien which is a privilege claim which a claimant exercises over the res (ship) in respect of which it arises and can be enforced by legal process. Where it had been claimed that ship in question was purchased by the amount advanced as loan by a second party which claim was not borne out from the documents produced rather it was shown that the ship in question was purchased much before the alleged advance of loan, such second party, therefore, could not claim maritime lien over the vessel nor action in rem could be brought against the ship.
An action in rem can be instituted against the ship or the property on which Maritime Lien is claimed. It is to be seen whether the plaintiff had Maritime Lien which is a privilege claim which a claimant exercises over the res (ship) in respect of which it arises and can be enforced by legal process. A Maritime Lien or his privileged claim or charge upon Maritime property in respect of the services rendered to it (repairs) or purchase or damage done to the ship, it occurs the moment, cause of action arises and attaches to the property to which the cause has accrued.
It travels with the property secretly and unconditionally and can be enforced by an action in rem. The Maritime Property means, a ship, cargo and freight irrespective of the Nationality. The claim which is recognized as giving rise to the Maritime Lien seamen, Master’s charged and disbursement, damage done by ship to the salvage and respondentia, a legal term applied to Maritime contract mortgaging the ship and their cargo for money advanced. In the case of the claimant that the amount was paid in installment for purchase of the ship and for repayment, the claimant had created charge over the second party. From the documents produced, the ship was purchased much before the alleged payment. It has not been established that ship was purchased from the alleged loan, even the second party was not in existence as legal identity, therefore, the ship cannot claim maritime lien over the claimant vessel, nor the action in rem can be brought against the ship based on action in personam against the second party in terms of subsection (4) of section 4 of the Ordinance for the reason that the second party was not incorporated when the loan agreement was allegedly executed.