Republic of India v India Steamship Co Ltd (The Indian Endurance and The Indian Grace) (No 2)

The House held that for the purposes of section 34 of the Civil Jurisdiction and Judgments Act 1982 an Admiralty action in rem is to be regarded as an action against the ship-owners from the moment the Admiralty Court is seized. Thus section 34 can bar an English in rem action where a foreign court has given judgment on the same cause of action between the same parties. Estoppel will defeat that bar only where there is clear evidence of a common assumption or acquiescence that the foreign judgment would not be relied on in later proceedings.

The House considered whether an Admiralty action in rem in England was barred by section 34 of the Civil Jurisdiction and Judgments Act 1982 when a prior Indian judgment in personam had been obtained on the same cause of action. The dispute arose from damage and jettison of munitions carried by the respondents' ship. The Admiralty action was issued in England after proceedings in India. The central questions were (a) whether an action in rem is between the same parties for the purpose of section 34; (b) whether the defendants were estopped from relying on section 34 by convention or by acquiescence; and (c) whether the abuse of process principle in Henderson v. Henderson barred the in rem action. The House was asked to resolve these issues after remittal for factual and preliminary rulings in the courts below.

(1) The appeal is dismissed. The English Admiralty in rem proceedings are, for the purposes of section 34 of the Civil Jurisdiction and Judgments Act 1982, proceedings between the owners (or those in control of the ship) and the claimant from the moment the Admiralty Court is properly seised. This reflects the modern procedural theory of actions in rem and the subsequent case law: see paras [350]; [356].

(2) Accordingly section 34 operates as a bar to an English in rem action where there is a prior foreign judgment on the same cause of action between the same parties, unless the foreign judgment is not enforceable or entitled to recognition in England or the defendant is estopped from relying on section 34. The statutory purpose supports this construction: paras [?] (discussion of purpose).

(3) Estoppel by convention requires evidence of a shared or acquiesced assumption that the foreign judgment would not be relied upon in later proceedings. The facts here did not establish such a common assumption. The trial judge’s findings on convention were unsupported by sufficient evidence and were therefore open to reversal: paras [346]; [346, col. 1].

(4) Estoppel by acquiescence similarly fails. There were no special circumstances that required the owners to warn the plaintiffs of the risk of a later plea based on the Indian judgment. Silence and ordinary conduct did not suffice: paras [346]; [346, col.1].

(5) The Court did not decide whether the old rule permitting an unsatisfied in personam judgment to be followed by an in rem action has been abolished by section 34, nor did it decide whether the inability to prove personal liability would independently defeat the in rem claim. Those points were not argued sufficiently and were left open: paras [??].

(6) The alternative plea of abuse of process (Henderson v. Henderson) was unnecessary to determine once section 34 was held applicable and not displaced by estoppel: paras [??].

Order: Appeal dismissed.

• House of Lords: Appeal dismissed. [1997] UKHL 40.
• Court of Appeal: Appeal allowed (reversing Admiralty judge) — The Indian Grace (No.2) [1996] 2 Lloyd's L.R. 12 (reported in text).
• Admiralty Court (Clarke J.): Preliminary issues tried; held estoppel and that in rem was not between same parties — see quoted findings (trial judgment at paras cited in text).