1.

Classification of Admiralty Actions

Admiralty Actions may be classified as follows;

(1) action in rem

(2) action in personam

Action in rem

Action in rem is an action against the thing itself. It is a distinctive and peculiar
feature of Admiralty jurisdiction. The definition of action in rem is stated in the case
of the St Merriel [ 1963 Lloyds Rep 68].

The action in rem is the word used in the admiralty for a limited number of
things such as ships, their cargos and a freight on which the arrested and sold by the
Court to meet the plaintiff’s claim or the claims of a number of plaintiff’s, provided
that the claim or claims are proved to the satisfaction of the Court.

In the case of the Cella [(1888) N.P.D. 82] ,

The action in rem is in essence a proceeding against property which one instituted
may be made effective by the arrest and detention of the property proceeded
against, and followed, if necessary, by the judicial sale of property and with the claim
satisfied out of the proceeds of sale.

Similarly, in the case of Re Aro CoLtd, Oliver J also said that

These are the essence of the procedure in rem. The fact that bail or ,by agreement of
parties, other security may be given to prevent or to secure release from arrest, and
that the plaintiff’s claim may be satisfied by the owner of the res or his insurers.

In the action in rem, the Court may arrest the ship until the dispute is
determined. The purpose of arrest is only to secure the continued presence of the
ship and to prevent her from shipping away.
2. Action in personam
Action in personam is against a particular person. Where the plaintiff has been
the victim of some legal wrong committed by a natural or illegal such as a company,
person he is entitled to sue that other person in personam.

The inherent jurisdiction possessed by the Court of Admiralty was not only
exercised by the proceedings in rem brought to enforce the Maritime liens attaching
to the rem in each case; but, where the ship was lost or for some other reasons could
not be arrested, a plaintiff having a claim cognizable by the Court, other than a claim
on a bottomry or respondentia bond or to the possession of the ship, might take
proceedings in a personam against the owners of the property which would have
been arrested if the proceedings had been in rem.

In the case of an ordinary action in personam, the judgment of the Court is a

personal one against the unsuccessful party.

The International Convention on certain rule concerning Civil Jurisdiction in

matters of Collision 1952 laid down restrictions on the exercise of jurisdiction on over
collision cases.

The Civil Jurisdiction and Judgments Act 1982 enacted the EEC Convention on
jurisdiction and enforcements on civil and commercial matters. The advantage of the
action in personam is that there is exists discretion to permit service out of
jurisdiction.
3. Admiralty Jurisdiction in Union of Myanmar Courts

Under the Colonial administration, the High Court of Judicature at Yangon

which was established under the Government of Myanmar Act 1935 exercised
admiralty jurisdiction under the Colonial Courts of Admiralty Act, 1890.

After independence, the Union Judiciary Act 1948 was promulgated. With
regard to maritime and admiralty jurisdiction, it was prescribed in Section 19 of the
Act as follows:-

Section 19(1) The Court shall have and exercise all such civil and maritime
jurisdiction as might have been exercised by the High Court of Judicature at Yangon.

Section 19(2) The High Court shall have and exercise all such criminal
jurisdiction as might have been exercised by the High Court of Judicature at Yangon.

During the time of the Revolutionary Council, the High Court and Supreme
Court were abolished and the Chief Court was established as single Court of final
appeal under notification No.25 and 26 of 30th March, 1962.

Under the provisions of the Constitution of 1974, the four central organs of
State power were established under Section 6(1) of the People’s Justice’s Law,
promulgated by Pyithu Hluttaw in 1974. The Council of People’s Justice has
jurisdiction in accordance with law, to administer admiralty suit. According to
Section17 of the Peoples Justice Law, the Central Judicial Organ constituted Council
of People’s Justice, shall exercise the jurisdiction of the Council of People’s Justice
shall constitute Central Judicial Organs which shall comprise a least three members
in each organ, with its member.

The State Law and Order Restoration Council abolished the Judicial Organs
and the Council of People’s Justice, and promulgated Judiciary Law of 1988.

Under Judiciary Law of 1988, the Supreme Court is the highest judicial organ.
Under Section 4(1) of this Law, Supreme Court has original jurisdiction of criminal
and civil cases.
 When State and Peace Development Council promulgated Judiciary Law 2000,
the Supreme Court is the highest Court of Appeal. It exercises both appellate and
revision power.

Under section 5(i) of the Judiciary Law 2000, the judicial powers of the
Supreme Court had `adjudicating on an admiralty case.
4. Service of Warrant and Summons

In Rule (14) every warrant for the arrest of a vessel or property in the port of
Yangon shall be directed to the Marshal and shall be served by him, or by one of his
subordinates.

Every warrant for the arrest of a vessel of property in a port other than
Yangon shall be directed to the collector of customs as such port and shall be served
by him or by one of his subordinates.

In Rule (15) in suits in rem service of summons or warrant against the vessel or
freight or cargo on board such vessel, shall be effected by nailing or affixing the
original summons of a short of time on the main mast or on the single mast of the
vessel, and on taking off the process leaving a true copy of it nailed or fixed in its
place.

In Rule (16) if cargo as been landed or transshipped, service of the summons

or warrant against it shall be effected by placing the original summons or warrant for
a short time o the cargo and on taking off the original process leaving a true copy of
it.

In Rule (17) if cargo is in the custody of a person who will not permit access to
it, service o the summons or warrant shall be effected by tendering to such person
the summons or warrant or by serving it on him in one of the modes prescribed by
the Code of Civil Procedure for service of a summon in a suit.

In Rule (18) the Marshal or collector of customs as the case may be shall as
soon as possible after service of a summons or warrant, return the original to the
Registrar with an endorsement there stating the time when and the matter in which
service there if was effected.

In Rule (19), in a suit in rem any person not named in a summon may appear
to defend the suit on filling an affidavit showing that he is interested in the vessel or
other property under arrest, or in the found in Court.
5. Transfer of Ownership

The ownership of a vessel may change in anyone of the following ways.

(1) By sale
(2) By Transmission
(3) By condemnation in sale under the order of the Court.
(4) As prize in time of war

Transfer of Ownership by Sale

Statement made by the seller.

Statement Prior to Sale

A statement made prior to a contract of sale may be-

1. An innocent misrepresentation
2. A Fraudulent misrepresentation

Fraudulent misrepresentation

Fraud may be defined as a false representation made either knowing or without

belief it is truth or recklessly careless of whether it is true or false. In the case of
fraudulent misrepresentation, the innocent party may bring an action both for
damages and rescission of the contract. The action which is based on deficit is not
often used due to the difficulty of proving as the defendant was guilty fraud.

Mason V Wallase Bay Yacht Station [(1939) 65 ULR, 2004],

An agent of the seller represented to a buyer that the yacht was seaworthy, the
buyer rely on this representation and entered into an agreement under which he
would purchase that yacht. The yacht was in fact unseaworthy. It was held that the
seller’s agent had made the statement recklessly since he had never been told
anything about the yacht not did he know anything about its conditions. Therefore
the buyer was entitled to rescission o the agreement and then indemnity on the
ground of fraud.
6. Remedies of Seller ( Unpaid Seller)

Stoppage in Transitu

This particular remedy exists more in theory than in practice , but where a seller has
sent a vessel to e delivered to a buyer and the seller is an unpaid seller time for
payment being already due, then he may stop the vessel in transit and have it return
to transit will cease if the carrier has agree that he now holds the vessel to the order
of the buyer.

Possessory Lien

An unpaid seller who has vessel still un his possession may exercise a right of
them over the vessel. That is he may keep the vessel in his possession until the buyer
pays the purchase price.

Power of Resale

An unpaid seller is a possession of a vessel may exercise a power of resale

over the vessel and can sell it to a third party. Such third party will by Section 48 of
the Sale of Goods Act, 1893 receive a good title against the original purchaser. By “a
good title” is meant the right to be regarded as the true legal owner of the vessel.

The Bineta, a motor yacht was sold by her registered owner to G. the owner
executed a bill of sale in favour of C and G had himself registered as the legal owner
of the vessel G, however, had not paid the owner and the owner kept the yacht in his
possession. The owner later sold the vessel to T. T now brought an action for a
declaration that he might be registered as the true legal owner on the grounds that
the original owner has poses to pass good title to him under Section 48 of the Sale of
Goods Act. T further required that the register be altered to show him as the true
legal owner. Held T was entitled to such a declaration and to have the register
altered since he had good title to the yacht the original owner having exercised his
right of lien and then power of resale as set out in the Act.
Action for the Price

Where the property in the vessel has passed to purchaser and be has refused
or neglected to pay the purchase price irrespective ( regardless ) of whether or not
the purchaser has taken possession of the vessel the seller may bring an action for
the price of the ( goods) vessel.

Action for Non- acceptance

This action may be brought wherever the buyer wrongfully neglects or refuses
to pay for the vessel. It must be contracted with the right to being an action for the
price in that the later action can only e brought where the property in the vessel has
passed to the buyer.
7. Remedies of Buyer

Action for Non-delivery

This action will lie where the seller wrongfully neglects or refuses to deliver
the vessel to the buyer. The measures for damages is estimated loss directly and
naturally resulting in the ordinary course of events from the sellers breach of
contract, if there is an available market then the measure of damages is prima facie
the difference between the contract price and the market or current price at the
time when the vessel ought to have been delivered or if no time for delivery was
fixed then at the time of the refuses to deliver.

Specific Performance

Where the seller refused to deliver the vessel to the buyer, the buyer may ask
the court to exercise its discretion in his favour and grant a decree that the contract
be specifically performed. This remedy will only be exercised where damage will not
be a sufficient remedy for the buyer.

In Behnke V. Bede S.S

An order specific performance of a contract for a steamship were the vessel

was of peculiar and practically unique value to the plaintiff. The vessel was being sold
cheaply and she was very old, build in 1892, but her engines and boiler were
practically new, and such as to satisfy the German regulation, and hence the plaintiff
could, as a German ship owner, have her at once put on the German register.

The seller refused to deliver him, so the buyer applied to the court for a
decree at specific performance of the contract.

Held by the King’s Bench Division, that damages were an inadequate remedy
and a decree of specific performance would be ordered.
8.The Purpose of Registration

Registration of ship was first made compulsory by the Navigation Act 1660
though the purpose of those Acts was to restrict commerce by sea to English ships.
The purpose of the shipping register is to provide a record of ship enjoying the
privileges of British ships to enable administrative regulations to be enforced.

To achieve a purpose the Register of British Ships has been created. This is
used as evidence of the right fly the flag of State as well as of the right of ownership
and mortgages.

The Evidence of the Right to Fly the Flag of the State

Ships are liable to be removed from the control of any particular state, for
international law recognizes the doctrine of the freedom of the High Seas, which
means that no maritime state must extend its jurisdiction beyond its territorial
waters, or Exclusive Economic Zone. But no national jurisdiction extends to the High
Seas.

In UN Convention on the Law of the Sea 1982, Article 90 says that ( Nationality
of Ship) every State shall fix the conditions for the grant of its nationality of ship, for
the registration of ships in its territory, and of the right to fly the flag. Ships have the
nationality of the State whose flag they are entitled to fly. There must exist a genuine
link between the State and the ship.

According to Article 92, double nationality and this double registration must
be avoided. In order ensure a ship does not fall under the jurisdiction of more than
one State.
The Evidence of the Right of Ownership
In “ The Bineta”,

By Section 48 (2) of the Sale of Goods Act 1893, “ where an unpaid seller who
has exercised his right of lien….resells the goods , the buyer acquires a good title
there to as against the original buyer.”

A yacht was sold by Miss Simonds to a Mr. Grathwaite in June, 1963 and the
vessel was registered in his name. he defaulted in the payment of the price, and she
retained possession of the yacht in exercise of her unpaid seller’s lien. In March
1965, she sold her to Mr. Dalby. Mr. Dalby sought a declaration that he was the ownr
of the yacht and was entitled to be registered as such in place of Mr. Grathwaite
under the Merchant shipping Act 1894, because Miss Simonds could vest a good title
in him under Section 48(2) of the Sale of Goods Act 1893. Held, by the probate
Divorce and Admiralty Division, that the declaration would be made accordingly.

The Evidence of the Right of Mortgage

By Section 1(1) of the Administration of Justice Act 1956, it is stated that the
Admiralty Jurisdiction of the High Court includes the right to hear and determine:-

(a) any claim in respect of a mortgage or charge on a ship or any share

therein. This jurisdiction covers mortgages in relation to both registered
and unregistered ships.