In general tort law, the plaintiff brings an action against the tortfeasor, which is the person who the plaintiff claims caused the injury, or against the insurance company that covers the tortfeasor. This is called in pesonam, the Latin for an action against the person or corporation that is allegedly responsible for the injury. By contrast, under Admiralty law, a tort claim is brought in rem, Latin for the property. That is, the suit in an admiralty law case is against the ship that caused the damage.
The law sometimes personifies the ship to the point where the shipowner may have no responsibility despite the charge against a ship. Similarly, it is possible to arrest the ship and bring into “custody” while the owner is not in custody. In practice, however, courts will usually impose a security against the owner of a ship, who will post the security to avoid an in rem arrest against the ship.
In Rem v. In Personam
As mentioned, a feature of admiralty law is that cases are often brought that are in rem. As a general rule, a plaintiff suing for a breach of contract or due to a tort can sue in rem. A breach of contract can be for lack of supplies, repairs for a ship, salvage claims, and more. For tort claims, this applies to basic personal injury claims.
To file an in rem claim in a United States District Court (i.e. federal court), the ship in question must be physically located in the jurisdiction of that court. If the ship is away from port and out in the middle of the ocean, there is no in rem claim due to lack of jurisdiction. A state’s federal jurisdiction with respect to ships in the ocean extends 12 nautical miles from the shoreline.
If an in rem action is not possible in a jurisdiction due to lack of jurisdiction over a ship not physically present, the only option is to file an in personam suit against the other party. In that instance, the Federal Rules of Civil Procedure would govern where a party can file suit.
If an in personam suit is filed, there is no arrest of the ship in question. As a result, the plaintiff would not be able to satisfy his or her claim from the ship itself. As such, there would be no lien on the ship to guarantee payment. The 11th Circuit confirmed as such in the 1990 case of Nehring v. SS Point MV Vail.
Note that an arrest can be applicable to both the ship and its cargo. Consequently, both the ship and cargo are subject to a lien and the proceeds from the ensuing law suit can be satisfied from both. However, a ship alone can be arrested; ship cargo alone cannot be arrested. In other words, cargo can be arrested only when it is together with a ship.
Hurt in a maritime accident? You have rights. Contact the Kolodny law firm, maritime injury lawyers.
Alan Kolodny is committed to representing injured clients in Texas and throughout the United States. Alan earned his B.A. from Rice University and his J.D. from Southern Methodist University.
He focuses his practice on representing plaintiffs in personal injury cases involving the following matters: maritime and offshore accidents, including those under the Jones Act; automobile and 18-wheeler truck accidents; and industrial site accidents, work-related accidents, and claims for injured railroad workers under the Federal Employers’ Liability Act.
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