Modern Maritime Law (Volume 1)

Jurisdiction and Risks

Aleka Mandaraka-Sheppard

• Publisher: Informa Law from Routledge
• Year: 2013
• ISBN:
  9781134588169
• Edition: 3
• Topic: Law
• Subtopic: Maritime Law
• Index: Law

This unique title examines in depth issues of jurisdiction, maritime law and practice from a modern perspective and highlights the importance of risk management with a view to avoiding pitfalls in litigation or arbitration and minimising exposure to liabilities.

The third edition has been fully revised and restructured into two self-contained volumes, the first covering jurisdictional issues and risks and the second exploring the diverse aspects of maritime law, risks and liabilities. The book continues to provide succinct analysis of the key principles and precedents of maritime law, a detailed account of important decisions, and incorporates developments in regulation, Codes of good practice and international Conventions.

The first volume tackles a wealth of complex jurisdictional aspects, ranging from the enforcement of maritime claims to a detailed analysis of the conditions of arrest of ships, including reconsideration of wrongful arrest, beneficial ownership, forum non-convenience and limitations upon the jurisdiction of the English courts.

Key features of Volume One:

• Expert analysis of the very latest case law, including noteworthy cases in international jurisdictions

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• Highlights important recent changes and developments in:

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  • piercing the corporate veil – State immunity

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  • conflict of laws and jurisdictions

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  • stay of proceedings for breach of jurisdiction or arbitration agreements

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  • issues arising from tiered dispute resolution clauses

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  • anti-suit injunctions

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• Timely examination of the EU jurisdiction scheme and the Review of the Brussels I Regulation
• New Chapter on Freezing Injunctions as compared with the US Rule B Attachment

This book serves as an invaluable reference for lawyers, academics, and a host of shipping and risk management professionals worldwide.

Purchase Volumes 1 and 2 of the Modern Maritime Law together for a reduced price at http://www.routledge.com/books/details/9780415843201/

Chapter 1
The Jurisdiction of the Admiralty Court

1 Historical overview

2 Admiralty jurisdiction at the present time

3 Foreign aspects and extent of the Admiralty jurisdiction

4 The civil law and common law approaches

5 Unique aspects of the Admiralty jurisdiction

6 Limits to invoking Admiralty jurisdiction

7 The subject matter of in rem proceedings – the ship

1 Historical Overview

1.1 Origins¹

The High Court of Admiralty, presently located at the Rolls Building, was an instrument of the Lord High Admiral and had jurisdiction to administer justice in respect of piracy or spoil and other offences committed upon the sea.² The judge of the court was a deputy of the Lord High Admiral, and civilian Admiralty practitioners practising civil law, as derived from Roman law, ran the court. Therefore, the practice and procedure of the court were founded upon civil law concepts, and its jurisdiction was separate from that of the common law courts. However, apart from possessing criminal jurisdiction, the Admiral began, gradually, to hear disputes also in all civil matters connected with the sea. The court asserted the highest and fullest jurisdiction over everything that might happen upon the high seas. This resulted in its usurping the jurisdiction of the common law courts in matters arising in inland tidal waters and gave rise to a conflict between the Admiralty and the common law courts.³

1.2 Conflict between the Admiralty and the Common Law Courts

The encroachment of the Admiral’s jurisdiction upon the common law courts’ jurisdiction caused indignation and became intolerable to common law lawyers in the thirteenth and fourteenth centuries. The authority of the Admiral to determine disputes involving seizure at sea was denied by the Common Pleas in 1296.⁴ Later, a statutory restriction of the Admiral’s jurisdiction was obtained by the Admiralty Jurisdiction Act 1389,⁵ in the reign of Richard II. In addition, by the subsequent statute, the Admiralty Jurisdiction Act 1391,⁶ matters of contracts, pleas and quarrels, which arose within the body of a county, whether on land or water, were removed from the jurisdiction of the Lord Admiral and were only triable in common law courts.⁷

In the years that followed, common law lawyers still employed devices to enable them to adjudicate maritime matters, which were actually within the jurisdiction of the Admiralty Court. Attempts by the Lord High Admiral to proceed in the Admiralty Court, either by arresting the person of the defendant, or seizing his goods, within the jurisdiction (known as the ‘maritime attachment’) in order to compel the defendant to appear, were thwarted by common law writs of prohibition.⁸ The last known instance of Admiralty jurisdiction by the arrest of the person was in 1780.⁹

The long conflict between the Admirals and the superior common law courts led to the decline of the Admiralty Court. Eventually, at the end of the reign of William IV in the 1830s, the jurisdiction of the Admiralty Court was retained in matters such as droits of Admiralty (wrecks at sea, which were the Admiral’s property rights), collisions, salvage, possession of ships, bottomry and seamen’s wages.¹⁰

1.3 The Admiralty Court Acts Since 1840¹¹

During this time, Dr Lushington, who was also a Member of Parliament, succeeded Sir John Nicholas as judge of the High Court of Admiralty in 1838. He promulgated the passing of the Admiralty Court Act (ACA) 1840. This Act effectively abolished the restrictions imposed upon the Admiralty Court by the Acts of Richard II and extended the court’s general jurisdiction, but it did not restore it to jurisdiction enjoyed in the ancient times in questions of contract, freight and charter parties.

The new jurisdiction conferred by the ACA 1840 included cognisance of mortgages on ships, questions of legal title and the division of proceeds of sale on suits of possession, and any claims in the nature of salvage services, provision of necessaries to a ship, as well as claims for towage. It was made clear, however, that none of this jurisdiction was exclusive, but concurrent with that of the courts of law and equity.¹²

The jurisdiction was extended, in certain cases as specified in s 6 of the ACA 1840 (3 & 4 Vict c 65), so as to enable the court to adjudicate upon claims where the ship was within a body of a county. There was, however, no remedy in personam until 1854, by s 13 of the ACA 1854 (17 & 18 Vict c 78). The 1854 Act revived the obsolete proceedings in personam, and the Admiralty Court had power to proceed by way of monition. However, the effect of these two Acts was only to enable the jurisdiction to be exercised in the body of a county and did not give any greater jurisdiction than the court had before.

By s 7 of the subsequent ACA 1861 (24 Vict c 10), jurisdiction was given over any claim for damage done by any ship. The effect of s 35 of this Act, which gave the Admiralty Court jurisdiction either by proceedings in rem or in personam, was to enable proceedings in personam to be taken where the case was an Admiralty suit, so that proceedings in rem would have lain against the ship, or against the owners or persons identified to have an interest in the ship.

Dr Lushington was inclined to give the full literal meaning to the Acts of Parliament and thought that anything done at sea, or anything done anywhere by a ship, was to be considered as within the Admiralty jurisdiction. Sir Robert Phillimore was more imbued with the idea that the Admiralty Court had the entire jurisdiction that it ever had, which was extended over every tort committed on the high seas.¹³

By 1868, the Admiralty jurisdiction was considered to be of a double character. There was the original jurisdiction, which existed in the ancient court of Admiralty (the jurisdiction of the Lord High Admiral), and the enlarged jurisdiction given by the aforesaid statutes. These statutes professed to enlarge and did enlarge the jurisdiction of the Admiralty Court. For the first time, the statutes gave Admiralty jurisdiction within the body of a county as, for example, when a collision occurred between an object on the high seas and a ship. There was an undoubted jurisdiction of the Lord High Admiral over everything that happened upon the high seas, and there was no prohibition about it to be found in the books.¹⁴

Thus, the Admiralty jurisdiction, as expanded by the Acts of 1840 and 1861, enjoyed exclusively the advantage of the proceeding in rem. Maritime law developed in a separate court, but it derived from law expounded in other courts.

1.4 The Need for Consolidation of All Courts

At the time of Sir Robert Phillimore’s judgeship, the Royal Commission, which inquired into the structure of the court, reported in 1869 that the root cause of the need to extend the Admiralty jurisdiction was the imperfection of the procedures of the common law system. The recommendations of the Royal Commission were enacted by Parliament by the first Supreme Court of Judicature Act 1873, which consolidated all courts, including the High Court of Admiralty, into the Supreme Court of Judicature.

This court was divided into Her Majesty’s High Court of Justice and Her Majesty’s Court of Appeal to exercise appellate jurisdiction. The High Court was subdivided into five divisions: Queen’s Bench, Common Pleas, Exchequer, Chancery, and Probate, Divorce and Admiralty (PDA or Admiralty Division).¹⁵ By 1875, any imperfections of the Act were corrected, and the long struggle between the Lord Admiral’s jurisdiction and the common law courts ended. The main reason for the consolidation was to foster the development of common concepts between these divisions of courts.

The development of Admiralty law has continued to be influenced by changes in concepts of common law and vice versa. The reform of the judicature system transformed the attitude of common law lawyers. The Admiralty jurisdiction was as readily extended, as it was in the early days when it was in the hands of the civilian Admiralty judges. There were frequently transfers of actions, which were not triable at common law, from the Queen’s Bench Division to the Admiralty Court.¹⁶

Subsequent enactments modified the Judicature Acts, and this led to the consolidation of all statutes by the Supreme Court of Judicature (Consolidation) Act 1925. In addition to the basic jurisdiction of the Admiralty Court, claims for necessaries supplied to any foreign ship anywhere and questions of title arising in suits of necessaries, claims for damage done by any ship (inclusive of personal injury and death), claims for salvage services (including life salvage) rendered anywhere and claims in the nature of towage were added.¹⁷

Two subsequent Acts affected the Admiralty jurisdiction: the Crown Proceedings Act 1947 (concerned with limitation of liability and immunity from suit in rem of Crown vessels and aircraft) and the Civil Aviation Act 1949 (concerned with claims for salvage of or by an aircraft).

The Administration of Justice Act 1956 gave an opportunity for further judicial expansion of the Admiralty jurisdiction. This Act confirmed the jurisdiction the court already possessed and incorporated some provisions of...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Foreword to the first edition by The Rt Hon. The Lord Mustill of Pateley Bridge
• Foreword to the second edition by The Rt Hon. The Lord Clarke of Stone-cum-Ebony
• Foreword to the third edition by The Rt Hon. Sir Bernard Rix
• Preface to the third edition
• Biography
• Acknowledgements
• CONTENTS
• DETAILED TABLE OF CONTENTS
• Table of Cases
• Table of Statutes
• Table of Foreign Statutes
• Table of Statutory Instruments
• Table of European Council Directives and Regulations
• Table of International Conventions
• List of Abbreviations
• CHAPTER 1—THE JURISDICTION OF THE ADMIRALTY COURT
• CHAPTER 2—ENFORCEMENT OF MARITIME CLAIMS
• CHAPTER 3—FREEZING INJUNCTIONS AND THE US RULE B ATTACHMENT
• CHAPTER 4—CONDITIONS OF ARREST – BENEFICIAL OWNERSHIP – THE CORPORATE VEIL
• CHAPTER 5—ARREST OF SHIPS – PRIORITIES OF CLAIMS – CONFLICT OF LAWS
• CHAPTER 6—DISMISSAL OR STAY OF PROCEEDINGS, FORUM SHOPPING
• CHAPTER 7—THE EU JURISDICTION REGIME AND ITS REVIEW
• CHAPTER 8—ANTI-SUIT INJUNCTIONS
• Index