My Ship My Castle: The Forfeiture of Property Rights in the Admiralty Law Context
University of Queensland Law Journal, 26 2: 341-351
Posted: 18 Jun 2015
Date Written: 2007
Abstract
The arrest of a ship or other property in the Admiralty jurisdiction pursuant to the action in rem has a tripartite function. First, it has the dual effect of creating or giving effect to a positive security interest. Secondly, the action in rem often also has the effect of securing the appearance of the owner of (or others interested in) the ship or other property. Thirdly, it may provide a basis for jurisdiction. If the claimant is ultimately successful, the security interest which has been created by the action in rem is enforceable by judicial sale of the arrested property or against the security which has been given in its place. Such judicial sale grants to the purchaser clear title, free from all encumbrances. Where the fund generated by the sale of the arrested property, or the security given in its place, is insufficient to meet all the judgments obtained against the ship, the Admiralty Court will rank the claims in order of priority in accordance with well established equitable doctrines and principles. It is the first feature of the arrest of property pursuant to the action in rem which is the concern of this paper. The proposition posited is that a failure to appreciate the true nature of the action in rem may result in the unwitting deprivation of private law rights and interests in the context of an adjudication which involves, fundamentally, issues of public law. The role of balancing such competing private and public law interests has been removed from the courts of Admiralty, not necessarily with desirable outcomes. It is argued that this role ought to be returned to the Admiralty jurisdiction.
JEL Classification: k00
Suggested Citation: Suggested Citation