Arrest in Rem in United States

Arrest in rem

The arrest in rem, now codified in the United States in Supplemental Rule C of the Federal Rules of Civil Procedure, is another basic component of American maritime law which traces its lineage back to English maritime law, as influenced by English common law.

The in rem process, as well as the old Admiralty attachment, were both offshoots of a single Continental form of process, the processus contra contumacem, which grew up in medieval Europe and became entrenched in the English High Court of Admiralty by the sixteenth century. The original Continental procedure and its English variant are more fully described in a publication of the Selden Society (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII of the Selden Society, London, 1992, Introduction at pp. xxxviii to xlvii).

The primary purpose of the processus contra contumacem was to counteract the defendant’s contumacious refusal to appear before the court and contest the suit brought against him. The person and/or the property of the defendant could be arrested, at the same time as he was cited to appear. If the defendant defaulted to appear after receiving a series of citations, the plaintiff, after the fourth such default, could formulate his claim in the form of a “draft sentence upon first decree”. The Admiralty Court, in a first decree (primum decretum) would then award possession of the property arrested to the plaintiff. Any property of the defendant, including, but not limited to, ships and cargoes (and indeed even goods of the defendant in the possession of third parties) could be seized by this process, nor was it necessary for the plaintiff to assert any hypothecation or maritime lien.

The English variant of the procedure, however, did require the plaintiff, in the draft sentence upon first decree, to identify the property of the defendant which had been arrested. Moreover, if the plaintiff’s suit was allowed, execution was limited to the property so arrested. These features of the process in England gradually led, in the seventeenth and eighteenth centuries, to the view that the ship itself, as opposed to its owner, was liable for certain debts (e.g. seamen’s wages and salvage remuneration). Arrest of the “wrongdoing” res came to be seen as the exclusivemode in which Admiralty jurisdiction could be exercised. As a result, a sharp distinction began to be drawn in England between what came to be called the “action in rem” and the “action in personam” (a distinction, incidentally, which was never made on the Continent).

The Admiralty Court’s in personam practice slowly atrophied, beginning after the Restoration in 1660, to the benefit of the courts of common law. The distinction between suing in rem and in personam was supported and promoted largely by common lawyers and judges, who for centuries had been at odds with the civilian advocates and judges sitting at Doctors’ Commons. The distinction served as a useful argument favouring further restrictions on Admiralty jurisdiction, restrictions enforceable by the issue of writs of prohibition (see, for example, Johnson v. Shippen (1703) 2 Ld. Raym. 982 (K.B.); Clay v. Snelgrave (1700) 1 Ld Raym. 576 (K.B.); Hale and Fleetwood, supra, at pp. xlvii, note 3 and lxiii-lxiv.)

The action in rem was an integral and distinct part of English Admiralty law by the time of the American Revolution and therefore became an integral part of American maritime law following the Treaty of Paris of 1783 and the adoption of the U.S. Constitution in 1789. Fortunately for America, however, as pointed out above, the attachment, which also sprang from the old processus in contumacem, also became part of the maritime law of the United States, having not yet completely disappeared from the practice of the English Admiralty Court when the new Republic was born.

Thus, as a result of its particular history, American maritime law today can offer maritime creditors two effective procedural remedies for the enforcement of their rights against vessels, while other countries of English legal heritage now (supposedly) have only one: the action in rem.

By William Tetley, Q.C.