Understanding Admiralty Developments since 1190 Prof John Levingston MIG/ MLAANZ Lecture series 23 May 2007 Paper at Paper at.

Understanding Admiralty

Developments since 1190

Prof John LevingstonMIG/ MLAANZ Lecture series 23 May 2007

Paper at <www.admiralty.net.au/ajit>

Introduction

• Problems for common law– Bailment– Admiralty– Finance law– Insurance & marine insurance

• Admiralty alone resists common law– Torts, contracts, arrangements &

understandings– conflict continues to date

Introduction

• Australian Admiralty– 1787 letters patent for Vice-Admiralty in

NSW– English Admiralty for 200 years– A clean slate

• 1986, abolition of appeals to the Privy Council

• Admiralty Act (Cth) 1988

Origin of Admiralty in England

• Preface – 1780 BC Eastern Mediterranean– 1066 and all that

• Norman invasion of England• Carriage of goods by sea commences

Admiralty arrives by sea

• 1190– Eleanor of Acquitance– Rules of Oleron– Richard 1

Admiralty appears

• 5 events (170 years)– 1190: Law of Oleron adopted– 1224: Office of Admiral created– 1336: Black Book of the Admiralty– 1340: Creation of the Admiralty Court– 1361: Authority of Admiralty confirmed

Common law fights back

• Common law agitates to limit Admiralty– Limit jurisdiction to the sea– All contracts in common law alone– Penalise persons using Admiralty

Common law fights back

• 1389: Jurisdiction of Admiral and Deputies Act– Admiralty jurisdiction limited to the sea

• …the Admirals and their Deputies shall not meddle henceforth with anything done within the Realm, but only such things done upon our sea according as was used in the time of the noble King Edward, Grandfather of out Lord the King what now is.

– Admiralty disputes this prevents it exercising any jurisdiction except matters done wholly on the seas and says the statute does not exclude jurisdiction for contracts• The Admirals and their Deputies shall not henceforth meddle with

any Contracts, Covenants, etc. of, or concerning any thing done within the Realm, but only of Contracts, Covenants, etc. of, or concerning things done upon the Sea

Common law fights back

• 1391: Admiralty Jurisdiction Act– Admiralty excluded from contracts

• …all manner of contracts, pleas and quarrels, and all other things arising within the bodies of the counties, as well by land as by water, and also of wreck of the sea, the Admiral’s Court shall have no manner of cognizance, power, nor jurisdiction, but the same shall be tried by the laws of the land. Nevertheless, of the death of a man, and of a mayhem done in great ships being and hovering in the sea, and in none other places of the same rivers, the Admiral shall have cognizance; and also to arrest ships in the great flotes for the great voyages of the King and of the realm; and he shall have jurisdiction upon the said flotes during the said voyages only. Saving always to the lords, cities, and boroughs their liberties and franchises.

Common law fights back

Admiralty recovers

• 1485 to 1603: Tudor revival– Crown patents confer wider jurisdiction– Henry VIII (1509 -1547)

• Admiralty jurisdiction for– Shipping contracts– Contracts performed beyond the seas– Contracts made beyond the seas– Contracts made on the rivers of the realm from

the first bridges to the sea

Admiralty recovers

• 1516: Trinity House incorporated– Proceedings conducted by Admiralty

Judge with assistance of two Elder Bretheren• Ancient usage

– Collision– Salvage

Admiralty recovers

• 1524: High Court of Admiralty has records– Expands jurisdiction

• International commerce– Negotiable instruments– Insurance– Charter-parties– Bills of lading

Admiralty recovers

• 1536: Offences at Sea Act– Admiralty jurisdiction expands further

• crimes committed on the seas

– …the reason given is that the civil law of proof by confession or witnesses is practically impossible under the circumstances without torture, for witnesses are unobtainable.

• Gives trial by Jury

Common law fights back

• 1537: Offences at Sea Act– Common law jurisdiction

• Pirate trials• Contracts for necessaries

Admiralty recovers

• 1540: Navigation Act– Navigation matters transferred to

Admiralty

Crisis for Admiralty

• 1547: Henry VIII dies• By 1575• All contracts made on land in common

law• Except for mariner’s wages claims

– ‘Ordinary contracts’ only Voyage, wages, signed by seaman

• Common law also takes– Mariner’s wage claims ‘special contracts’– Deeds for payment of wages– Charter-parties

• Admiralty fees declining

Admiralty seeks solution

• 1575: 1st Conference of Judges– Articles of agreement

• Common law makes concessions • Jurisdiction defined

Common law denies agreement

• 1606: Edward Coke became Chief Justice of the Court of Common Pleas

• Denies 1st Conference agreement on the ground it had not been ratified– …and when Coke came to the bench he deliberately set

himself to cripple the court of Admiralty and to capture mercantile law for the common lawyers. Prohibitions were constantly issued to the Admiralty and other mercantile courts…

– Coke says common law is supreme, even when the Crown disagrees

Admiralty seeks solution

• 18/2/1632: Whitehall Agreement– 2nd Conference of Judges– The King, Lord Keeper & 23 Lords of the

Council• Subsigned by:

– All the Judges– The Attorney-General

• Entered in the Register of Council Causes• Original kept in the Council Chest

Whitehall Agreement

• 1. If Suit shall be Commenced in the Court of Admiralty upon Contracts made, or other things personally done beyond or upon the Seas, no Prohibition is to be awarded.

Whitehall Agreement

• 2. If Suit be before the Admiral for Freight or Mariners wages, or for the breach of Charter-parties for Voyages to be made beyond the Seas, tho' the Charter-parties happen to be made within the Realm; and though the Money be payable within the Realm, so as the Penalty be not demanded, a Prohibition is not to be granted ; but if Suits be for the Penalty, or if the question be made whether the Charter-party were made or not, or whether the Plaintiff did release, or otherwise discharge the same within the Realm, that is to be tried in the King's Court at Westminster, and not in the King's Court of Admiralty, so that first it be denied upon Oath, that Charter-party was made, or a denial upon Oath tendered.

Whitehall Agreement

• 3. If Suit shall be in the Court of Admiralty for building, amending, saving, or necessary vitualling of a Ship, against the Ship itself, and not against any party by Name, but such as for his interest makes himself a party, no Prohibition shall be granted, though this be done within the Realm.

Whitehall Agreement

• 4. Likewise the Admiral may enquire of and re dress all annoyances and obstructions in all navigable Rivers beneath the firs Bridges that are impediments to navigation, or passage to or from the Sea, and also try personal Contracts and Injuries there which concern Navigation upon the Sea, and no Prohibition is to be granted in such Causes.

Whitehall Agreement

• 5. If any be imprisoned and upon Habeas Corpus, if any of these be the cause of imprisonment, and that be so certified, the party shall be Remanded.

Whitehall Agreement

• Ignored by common law• Conflict unresolved until the Admiralty Court Act

1840• Common law used 4 legal devices to limit

Admiralty– in personam jurisdiction– Pleading fiction– Writs of Prohibition– Penalise claimants in Admiralty

Common law devices

• 1. Common law in personam jurisdiction– ordered transfer of all matters to common law– at the request of the defendant

• Admiralty response– develops jurisdiction in rem– Arrest of ship or cargo

Common law devices

• 2. Pleading fiction– exercise jurisdiction over matters which were otherwise

beyond the realm– a plea that the contract was made in the Parish of St

Mary le Bow in the Ward of Cheap, or St Michael Cornhill– Plea was not traversable

• A problem emerges for common law– administering a strange and foreign law– adopts theory of custom– applies mercantile custom if proved

• Each case had to allege the existence of a mercantile custom and then establish it by a jury of merchants

Common law devices

• 3. Writs of Prohibition against Admiralty– Allegation that Admiralty exceeding jurisdiction– But not for seamen ordinary contracts– Not after judgment

Common law devices

• 4. Penalise Admiralty claimants– a monetary penalty of double damages and a

fine of ten pounds was imposed on those who wrongfully commenced their claim in Admiralty: • Admiralty Jurisdiction Act 1400

– …shall recover his Double Damages against such Pursuant; and such Pursuant shall incur the pain of ten pounds to the King for the pursuit so made, if he be attained.

• This disincentive remained in force for 461 years until repealed by the Admiralty Court Act 1861 (UK).

Admiralty jurisdiction

Historical jurisdiction• Prize absolutely to the Crown • Private litigation

– Collision– Salvage– Bottomry bonds– Seamens wages

Admiralty jurisdiction

• Prize

(originally belonged absolutely to the Crown)– Inherent jurisdiction of Admiralty– Exclusive of common law– Not subject to Writs of Prohibition

Admiralty jurisdiction

• Collision

– Master obliged to exercise reasonable skill and care in management of the ship

– Owner liable to persons affected by the Master’s negligence or misconduct

Admiralty jurisdiction

• Salvage– Peculiar to Admiralty

• Based on Admiralty law, contract, arrangement or understanding

• Not dependent on contract

– Compensation by portion of the goods saved (originally) or money (later)• Compensation: no fixed rule, reasonable compensation• Policy to repress plundering of the helpless and distressed

– For assistance to ship or cargo saved from impending peril or recovered after actual loss

– ‘Life salvage’ only after 1894

Admiralty jurisdiction

• Salvage – Common law claims jurisdiction over contracts– Dependent on contract for salvage

• Written terms• Contracts for work and labour in and about the saving of a ship

Common law construction of contracts constrained

– Common law unable to remedy contracts unlike Admiralty• Unfair ?• Unconscionable ?

Admiralty better suited to maritime and trade activities

• Common law jurisdiction dependent on– Bailment– Contract, consideration and privity– Tort

• Admiralty not so constrained– Bailment– Contract, arrangements and understandings– International convention, comity of nations– Negligence and willful default

Admiralty & Common law

• Bailment in Admiralty – Well known in Admiralty – Carriage of goods by sea

• Bailment in common law– Origin in Roman law– Claimed by common law but not understood

• Confusion– Contract: written terms

Requires consideration Privity problem

– Tort: breach of duty to safely keep & redeliver

Admiralty & Common law

• Admiralty and Bills of lading– Contract of carriage pre-dates the bill of lading– Bill of lading is evidence of the contract

• Admits evidence of pre-carriage and pre-contractual negotiations, custom and usage

– Carrier’s receipt for the goods– Document of title– Privity (common law confusion)

• Is it necessary to have a contract for carriage?• Could it be a Bailment on terms?

• A Bailment for reward?

Admiralty – the future?

• Common law has been in conflict with Admiralty for over 800 years– Continues to cause confusion with application of contract

doctrines • Admiralty does not suffer the constraints of common law• Admiralty is well suited to maritime and international trade • Admiralty will continue to service the growth of maritime

and international trade activities• Admiralty should not allow common law doctrines to limit

its utility in maritime and international trade activities

Thank you

• Questions

Paper at <www.admiralty.net.au/ajit>