In rem jurisdiction

Last updated October 09, 2023

In rem jurisdiction ("power about or against 'the thing'"^[1]) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have in personam jurisdiction. Jurisdiction in rem assumes the property or status is the primary object of the action, rather than personal liabilities not necessarily associated with the property.

United States

Within the U.S. federal court system, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court's jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law against a vessel to satisfy debts arising from the operation or use of that vessel.

Within the American state court systems, jurisdiction in rem may refer to the power the state court may exercise over real property or personal property or a person's marital status. State courts have the power to determine legal ownership of any real or personal property within the state's boundaries.

A right in rem or a judgment in rem binds the world as opposed to rights and judgments inter partes which only bind those involved in their creation.

Originally, the notion of in rem jurisdiction arose in situations in which property was identified but the owner was unknown. Courts fell into the practice of styling a case not as "John Doe, Unknown owner of (Property)", but as just "Ex Parte (property)" or perhaps the awkward "State v. (Property)", usually followed by a notice by publication seeking claimants to title to the property;^{[ citation needed ]} see examples below. This last style is awkward because in law, only a person may be a party to a judicial proceeding – hence the more common in personam style – and a non-person would at least require a guardian appointed to represent its interests, or those of the unknown owner.^{[ citation needed ]}

The use of this kind of jurisdiction in asset forfeiture cases is controversial because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.^[2]

Examples

Some examples of in rem cases:

United States v. 422 Casks of Wine (1828), an early 19th-century example
United States v. Forty-Three Gallons of Whiskey (1876), case involving sale of unlicensed alcohol on Indian lands
United States v. Forty Barrels and Twenty Kegs of Coca-Cola (1916), brought under the Pure Food and Drug Act (1906), rather than against The Coca-Cola Company itself
United States v. Ninety-Five Barrels Alleged Apple Cider Vinegar (1924) — Early Food and Drug Administration case.
United States v. One Book Called Ulysses , the landmark 1933 ruling by John M. Woolsey that Ulysses by James Joyce had sufficient literary merit to overcome its obscene portions. Upheld on appeal as United States v. One Book Entitled Ulysses by James Joyce.
United States v. One Package of Japanese Pessaries , 86 F.2d 737 (2d Cir. 1936), a case involving contraceptives Margaret Sanger attempted to import, heard by the Second Circuit.
United States v. 11 1/4 Dozen Packages of Articles Labeled in Part Mrs. Moffat's Shoo-Fly Powders for Drunkenness , 40 F.Supp. 208 (W.D.N.Y. 1941)
Marcus v. Search Warrant , 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri. An unusual in rem case heard by the Supreme Court where the named object was not the seized property but the warrant under which it was seized. Since all the government agents involved were indisputably acting within the law as it stood, the only way for the petitioner to challenge the constitutionality of the seizure was to name the search warrant itself as defendant.
United States v. One Solid Gold Object in Form of a Rooster , 1962 United States District Court case determining that statues made of gold are legal to own under the Gold Reserve Act
Quantity of Books v. Kansas , 1964 U.S. Supreme Court case holding seizure of allegedly obscene materials unconstitutional without prior hearing to determine obscenity.
One 1958 Plymouth Sedan v. Pennsylvania , 380 U.S. 693 (1965), case in which the U.S. Supreme Court held that the exclusionary rule prevents the forfeiture of material seized in cases where the Fourth Amendment was violated.
Memoirs v. Massachusetts , case involving Fanny Hill , heard by the U.S. Supreme Court in 1966 (full title: A Book Named "John Cleland's Memoirs of a Woman of Pleasure", et al. v. Attorney General of Massachusetts)
United States v. Thirty-seven Photographs , an obscenity forfeiture case heard by the U.S. Supreme Court in 1971.
United States v. 12 200-ft. Reels of Film , a case very similar to the above heard by the Supreme Court two years later.
Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin)
United States v. Article Consisting of 50,000 Cardboard Boxes More or Less, Each Containing One Pair of Clacker Balls , 413 F. Supp. 1281 (D. Wisc. 1976). Held that the seizure provisions of the Federal Hazardous Substances Act do not violate the Due Process Clause.
United States v. 50 Acres of Land , 1984 U.S. Supreme Court case involving eminent domain, holding that cost of replacement for taken property does not have to be calculated in its fair market value.
United States v. One Lucite Ball Containing Lunar Material (One Moon Rock) and One Ten Inch by Fourteen Inch Wooden Plaque (2001)
R.M.S. Titanic, Inc. v. The Wrecked and Abandoned Vessel, R.M.S. Titanic 286 F.3d 194 (2d Cir., 2002) – here distinguishing between plaintiff (company) and object, of the same name; in full the case also named persons as defendants, and identifies the object more precisely as:
The Wrecked and Abandoned Vessel, its engines, tackle apparel, appurtenances, cargo, etc., located within one (1) nautical mile of a point located at 41° 43′ 32″ North Latitude and 49° 56′ 49″ West Longitude, believed to be the R.M.S. Titanic, in rem
United States v. $124,700 in U.S. Currency (2006), an asset forfeiture case based on drug law.
United States v. Approximately 64,695 Pounds of Shark Fins (9th Cir., 2008). Asset forfeiture case under the Shark Finning Prohibition Act of 2000.
South Dakota v. Fifteen Impounded Cats 785 N.W.2d 272 (S.D. 2010)
United States v. One Tyrannosaurus Bataar Skeleton (2013). The case was brought to stop the sale of a dinosaur skeleton that had allegedly been looted from the Gobi Desert in violation of Mongolian law.^[3]
United States v. Four Hundred Fifty (450) Ancient Cuneiform Tablets (2017).^[4] The Hobby Lobby smuggling scandal started in 2009 when representatives of the Hobby Lobby chain of craft stores received a large number of clay bullae and tablets originating in the ancient Near East.
United States v. Rayburn House Office Bldg., Room 2113, Washington, D.C. 20515, 378 U.S. App. D.C. 139, 497 F.3d 654 (2007) (holding that an FBI raid of Congressman William Jennings Jefferson's office violated the Speech or Debate Clause of the Constitution of the United States).

Canada

Canadian examples of in rem tend to involve admiralty law. The Canadian Parliament has exclusive authority to legislate for navigation and shipping under section 91(10) of the Constitution Act, 1867.^[5] The Federal Courts Act gives the Federal Court jurisdiction over these matters, and it may be exercised in rem against the ship, aircraft or other property that is the subject of the action, or against any proceeds from its sale that have been paid into court.^[6]

The jurisdiction of the Federal Court in admiralty matters applies to all ships and aircraft, regardless if the owners are Canadian, and to claims arising on any naturally or artificially navigable waters, and in the case of salvage, cargo and wrecks found on the shores.^[6] Under the Act, the jurisdiction of the Federal Court under section 22 may be exercised in personam as well, except in cases of collisions between ships. In that case, section 43(4) of the Federal Courts Act applies. It states actions may only be commenced in Federal Court if the defendant has a residence or place of business in Canada, the cause of action arose in Canadian waters, or the parties have agreed the Federal Court is to have jurisdiction.^[6] This does not apply in counterclaims or actions in which some other action has already been commenced in the Federal Court.

In some of the bases of jurisdiction listed under section 22 of the Act,^[7] the right to exercise jurisdiction in rem is limited to situations in which the beneficial owner of the subject of the action when the matter is commenced was the beneficial owner when the cause of action arose.^[8]

Section 43(7) of the Federal Courts Act creates an exception where actions in rem cannot be commenced. The section states no action can be commenced in Canada against any warship, coast-guard ship or police vessel; any ship owned or operated by Canada or a province, or any cargo laden thereon, where the ship is engaged on government service; or any ship owned or operated by a sovereign power other than Canada, or any cargo laden thereon, with respect to any claim where, at the time the claim arises or the action is commenced, the ship is being used exclusively for non-commercial governmental purposes.^[6]

A warrant may be issued for the arrest of a foreign ship, provided the ship is within the territorial jurisdiction of the court.^[9]

An action in rem does not necessarily result in a judgment in rem as the owner of the ship may enter a personal appearance and thus submit to the jurisdiction of the court. This is usually the case when the plaintiff threatens to arrest the res and the owner arranges for bail or other security to be given. When the owner enters an appearance the action in rem becomes one in personam and the defendant’s liability is not limited to the value of the res or the amount of the bail or security he or she has given. However, a plaintiff, having arrested a vessel, is entitled to security in an amount sufficient to cover the reasonably arguable best case, together with interest and costs, capped at the value of the wrongdoing vessel.^[8] The important remedies available from the Federal Court to secure assets pending the resolution of a dispute and to operate in rem may be significant in weighing the suitability of alternative fora in a motion for a stay based on forum non conveniens.^[8]

Canadian courts will not entertain actions against foreign ships in Canadian ports that seek to relitigate matters already decided by competent courts, but the authority of Canadian courts to issue maritime liens over ships arrested in Canadian waters will not be affected by orders of Canadian bankruptcy courts directing the proceeds of the sale to be paid to foreign trustees. Canadian courts can exercise discretion to decline jurisdiction over claims for wages where the accredited representative of the state to which the ship belongs objects to the exercise of jurisdiction. The court cannot acquire jurisdiction by consent of the parties if there is an absolute absence of jurisdiction in respect of the subject-matter.^[10]

Examples

Some examples of Canadian in rem cases:

China

According to Professor Jianfu Chen of La Trobe University, "officially, the drafting of the 2007 Law of Rights in rem started in 1993, ... [but] rights in rem have always been part of the effort to draft a civil code in the PRC."^[11] "Rights in rem are defined to mean the rights by the right-holder to directly and exclusively control specific things (property); it includes ownership rights, usufruct and security interests in property."^[12]

Related Research Articles

<span class="mw-page-title-main">Defendant</span> Accused person

In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.

Jurisdiction is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple levels.

Personal jurisdiction is a court's jurisdiction over the parties, as determined by the facts in evidence, which bind the parties to a lawsuit, as opposed to subject-matter jurisdiction, which is jurisdiction over the law involved in the suit. Without personal jurisdiction over a party, a court's rulings or decrees cannot be enforced upon that party, except by comity; i.e., to the extent that the sovereign which has jurisdiction over the party allows the court to enforce them upon that party. A court that has personal jurisdiction has both the authority to rule on the law and facts of a suit and the power to enforce its decision upon a party to the suit. In some cases, territorial jurisdiction may also constrain a court's reach, such as preventing hearing of a case concerning events occurring on foreign territory between two citizens of the home jurisdiction. A similar principle is that of standing or locus standi, which is the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.

Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties.

Extraterritorial jurisdiction (ETJ) is the legal ability of a government to exercise authority beyond its normal boundaries.

A waiver is the voluntary relinquishment or surrender of some known right or privilege.

Shaffer v. Heitner, 433 U.S. 186 (1977), is a United States corporate law case in which the Supreme Court of the United States established that a defendant's ownership of stock in a corporation incorporated within a state, without more, is insufficient to allow that state's courts to exercise jurisdiction over the defendant. The case set forth a framework for evaluating when a defendant will be deemed to have minimum contacts with the forum state sufficient for the exercise of jurisdiction to be consistent with due process under the Fourteenth Amendment.

A quasi in rem legal action is a legal action based on property rights of a person absent from the jurisdiction. In the American legal system the state can assert power over an individual simply based on the fact that this individual has property in the state. Quasi in rem jurisdiction does not have much function in the United States any longer. However, in very specific cases, quasi in rem jurisdiction can still be effective.

<span class="mw-page-title-main">Asset forfeiture</span> Confiscation of assets by the state

Asset forfeiture or asset seizure is a form of confiscation of assets by the authorities. In the United States, it is a type of criminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This applies, but is not limited, to terrorist activities, drug-related crimes, and other criminal and even civil offenses. Some jurisdictions specifically use the term "confiscation" instead of forfeiture. The alleged purpose of asset forfeiture is to disrupt criminal activity by confiscating assets that potentially could have been beneficial to the individual or organization.

A maritime lien, in English and US law and elsewhere, is a specific aspect of admiralty law concerning a claim against a ship for services rendered to it or injury caused by it.

Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), was a case in which the Supreme Court of the United States set forth the constitutional requirements for notice of judicial proceedings to a potential party under the Fourteenth Amendment to the United States Constitution.

The Fifth Amendment to the United States Constitution creates several constitutional rights, limiting governmental powers focusing on criminal procedures. It was ratified, along with nine other articles, in 1791 as part of the Bill of Rights.

One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693 (1965), was a Supreme Court of the United States case handed down in 1965. The Court ruled that civil forfeiture could not apply where the evidence used to invoke the forfeiture was obtained illegally.

Rule B attachments are issued under Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure. Under that provision, the court is allowed to attach a defendant's property up to the value of the suit. Although these claims are filed during in personam actions, they are in rem in nature, as the Court is attaching property to the suit. This has been described as a "remedy quasi in rem."

In modern U.S. usage, forfeiture is deprivation or destruction of a right in consequence of the non-performance of some obligation or condition. It can be accidental, and therefore is distinguished from waiver: see waiver and forfeiture. In the law of England and Wales, the forfeiture rule is the rule of law which prevents a killer from inheriting the estate of a person they have unlawfully killed. The term also refers to the rule in English law under which an insured person who makes a fraudulent insurance claim loses their claim: this rule was derived from common law until the passage of the Insurance Act 2015, which "puts the common law rule of forfeiture on a statutory footing".

The Marshall Court (1801–1835) heard forty-one criminal law cases, slightly more than one per year. Among such cases are United States v. Simms (1803), United States v. More (1805), Ex parte Bollman (1807), United States v. Hudson (1812), Cohens v. Virginia (1821), United States v. Perez (1824), Worcester v. Georgia (1832), and United States v. Wilson (1833).

In the United States, civil forfeiture is a process in which law enforcement officers take assets from people who are suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing. While civil procedure, as opposed to criminal procedure, generally involves a dispute between two private citizens, civil forfeiture involves a dispute between law enforcement and property such as a pile of cash or a house or a boat, such that the thing is suspected of being involved in a crime. To get back the seized property, owners must prove it was not involved in criminal activity. Sometimes it can mean a threat to seize property as well as the act of seizure itself. Civil forfeiture is not considered to be an example of a criminal justice financial obligation.

United States v. 422 Casks of Wine, 26 U.S. 547 (1828), is an 1828 United States Supreme Court civil forfeiture case between the United States and 422 casks of Malaga wine. The case was brought after the United States moved to seize the wine on the grounds that it had been deliberately mislabeled as sherry to get a tax drawback, and the buyers objected. The original trial was ruled in favor of the United States but was ordered to be retried after errors were discovered concerning jurisdiction. In the subsequent retrial, the Supreme Court ruled against the United States; however, they did grant them a certificate of seizure on probable cause.

Nebraska v. One 1970 2-Door Sedan Rambler (Gremlin) 191 Neb. 462, 215 N.W.2d 849 (1974) is a Nebraska Supreme Court civil forfeiture case. It was brought by the American state of Nebraska to seize a Rambler Gremlin on the sole grounds it was transporting illegal marijuana. The owner appealed against the forfeiture decision on the grounds of a claimed lack of due process. The court ruled 4–2 and sustained the confiscation as lawful.

References

↑ Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362.
↑ LII Backgrounder on Forfeiture
↑ Serna, Joseph. "Saving this dinosaur took a skeleton crew". Los Angeles Times. January 14, 2013.
↑ United States District Court for the Eastern District of New York - https://www.justice.gov/usao-edny/pr/united-states-files-civil-action-forfeit-thousands-ancient-iraqi-artifacts-imported
↑ Branch, Legislative Services (2020-08-07). "Consolidated federal laws of canada, THE CONSTITUTION ACTS, 1867 to 1982". laws-lois.justice.gc.ca. Retrieved 2021-04-15.
1 2 3 4 Branch, Legislative Services (2019-08-28). "Consolidated federal laws of canada, Federal Courts Act". laws-lois.justice.gc.ca. Retrieved 2021-04-15.
↑ Specifically ss. 22(2)(e), (f), (g), (h), (i), (k), (m), (n), (p), (r).
1 2 3 Walker, Janet; Castel, Jean Gabriel (2005). "Chapter 12 - Admiralty Actions In Rem and In Personam". Canadian Conflict of Laws, 6th Ed. LexisNexis/Butterworths.
↑ "The "D.C. Whitney" v St. Clair Navigation Co". Supreme Court of Canada.
↑ Walker, Janet (2020). Halsbury's Laws of Canada - Conflict of Laws (2020 Reissue). LexisNexis Canada Inc. ISBN 9780433454946.
↑ Chen, Jianfu (2008). Chinese Law: Context and Transformation. Boston: Martinus Nijhoff Publishers. p. 374.
↑ Chen 2008, p. 379. See Article 2 of the Law on Rights in rem

This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.

[1] Garner, Bryan (2006). Black's Law Dictionary. St. Paul, MN: Thompson/West. p. 362.

[2] LII Backgrounder on Forfeiture

[3] Serna, Joseph. "Saving this dinosaur took a skeleton crew". Los Angeles Times. January 14, 2013.

[4] United States District Court for the Eastern District of New York - https://www.justice.gov/usao-edny/pr/united-states-files-civil-action-forfeit-thousands-ancient-iraqi-artifacts-imported

[5] Branch, Legislative Services (2020-08-07). "Consolidated federal laws of canada, THE CONSTITUTION ACTS, 1867 to 1982". laws-lois.justice.gc.ca. Retrieved 2021-04-15.

[:0-6] 1 2 3 4 Branch, Legislative Services (2019-08-28). "Consolidated federal laws of canada, Federal Courts Act". laws-lois.justice.gc.ca. Retrieved 2021-04-15.

[7] Specifically ss. 22(2)(e), (f), (g), (h), (i), (k), (m), (n), (p), (r).

[:1-8] 1 2 3 Walker, Janet; Castel, Jean Gabriel (2005). "Chapter 12 - Admiralty Actions In Rem and In Personam". Canadian Conflict of Laws, 6th Ed. LexisNexis/Butterworths.

[9] "The "D.C. Whitney" v St. Clair Navigation Co". Supreme Court of Canada.

[10] Walker, Janet (2020). Halsbury's Laws of Canada - Conflict of Laws (2020 Reissue). LexisNexis Canada Inc. ISBN 9780433454946.

[11] Chen, Jianfu (2008). Chinese Law: Context and Transformation. Boston: Martinus Nijhoff Publishers. p. 374.

[FOOTNOTEChen2008379-12] Chen 2008, p. 379. See Article 2 of the Law on Rights in rem

[1]

[2]

[3]

[4]

[5]

[6]

[7]

[8]

[9]

[10]

[11]

[12]

In rem jurisdiction

Contents

United States

Examples

Canada

Examples

China

See also

Related Research Articles

References