Analysing beneficial ownership in the context of the action 'in rem'

Abstract

This dissertation has aimed to address the relevance of beneficial ownership from an admiralty law perspective. Particularly, it has delved into the importance of this phrase in both subsections (a) and (b) of section 742D of the Code of Organisation and Civil Procedure. The analysis has been conducted both with respect to the particular vessel against which a maritime claim arose and any other vessel which shares beneficial ownership with that ship at the time the action is brought. The author has also attempted to acknowledge certain different financial institutions, fiduciary obligations and corporate structuring methods adopted in the shipping industry, in particular the concept of the “one-ship company” which has seen rapid growth worldwide. Being a matter of procedure, the law of the state in which the action is sought is generally the applicable law for interpretation. However, due to the lack of local case-law on the matter, coupled with the inherent international nature of the shipping industry and admiralty account must also be given to foreign adaptations. Therefore, an in depth analysis comparative analysis has been carried out. The concept has been examined according to British legislation and jurisprudence and other relevant jurisdictions bearing in mind the International Arrest Conventions of 1952 and 1999. The author is hopeful that the concept of beneficial ownership has been addressed both from a practical and theoretical approach. Although there are a number of debatable issues and no fixed definition has been established, this dissertation has provided a number of elements or criteria which are of utmost importance when considering what beneficial ownership for the purposes of an action in rem is. These elements merit further examination by the Courts and legislators alike in order to provide legal certainty to both ship owning companies and their creditors.