Admiralty Jurisdiction and Practice

Nigel Meeson, John Kimbell

• Éditeur: Informa Law from Routledge
• Année: 2017
• ISBN:
  9781317424215
• Édition: 5
• Sujet: Derecho
• Sous-sujet: Derecho marítimo

Admiralty Jurisdiction and Practice is the definitive work on litigation in the Admiralty Court. It provides unrivalled commentary and analysis of the key principles of admiralty law, from jurisdiction and procedure to forms and precedents, and is firmly established as the leading reference guide for today's maritime practitioner. The authors also deal with several topics not covered elsewhere, including the impact of insolvency, the interplay between jurisdiction and practice, limitation periods, the role of international conventions, and collision action rules.

The fifth edition has been fully updated to include new case law and vital changes in Commercial Court practice and procedure. It also includes brand new material on the topical jurisdictions of Hong Kong and South Africa, including a comparison to English law and expert commentary on important issues such as ship arrest.

This book is a first choice for all those concerned with admiralty law.

Chapter 1

Introduction

Historical origins

1.1 Today the Admiralty Court is simply part of the Queen’s Bench Division of the High Court¹ but for many years it had a separate existence, its own court buildings near St. Paul’s cathedral and its own specially trained cadre of advocates.² The emergence of the Admiralty Court as a distinct jurisdiction has been traced to the period between the years 1340 and 1357.³ It is thought to have come into being because of difficulties experienced by domestic courts in dealing with international piracy claims.⁴ The practice and procedure of the Admiralty Court is not founded on common law principles but on civil law concepts as developed and adapted by the civilian practitioners of the College of Advocates and Doctors of Law.⁵ It was not until 1859 that common law barristers and solicitors were even permitted to appear in the Admiralty Court.⁶ Prior to 1859, the Admiralty Court had been the exclusive preserve of the civilian practitioners (called proctors and advocates to distinguish themselves from the solicitors and barristers of the common law courts). The advocates were members of the College of Advocates and Doctors of Law, more usually referred to by the name of the place of the building which housed the court, its registry and its practitioners, Doctors’ Commons.⁷ Doctors’ Commons housed the High Court of Admiralty from 1664 to 1860, when it moved to Westminster Hall. It was only after 1861⁸ that it became clear that the Admiralty Court was a court of record.⁹ The old High Court of Admiralty ceased to exist on 2 November 1875 pursuant to the Judicature Acts 1873 and 1875.¹⁰ Accounts of the history of the Court are to be found in various sources.¹¹ A good general overview of the history of the Admiralty Court is set out in the Introduction to the 5th edition of Roscoe’s Admiralty Jurisdiction and Practice.¹² A detailed account of the development of Admiralty jurisdiction and practice after 1800 (a crucial period in the development of the Court) is contained in Dr Wiswall’s book of that name.¹³ The present work is, however, concerned only with Admiralty jurisdiction and practice at the present time.

The present

The admiralty court and its judges

1.2 Section 5(5) of the Senior Courts Act (SCA) 1981¹⁴ provides that the whole jurisdiction of the High Court belongs to all divisions alike and section 4(3) provides that all the judges of the High Court have equal power authority and jurisdiction. However, section 6(1)(b) of the SCA 1981 provides that there be constituted as part of the Queen’s Bench Division an Admiralty Court (as well as a Commercial Court and a Patents Court). Section 6(2) of the SCA 1981 provides that the judges of the Admiralty Court are to be such of the puisne judges as the Lord Chief Justice may from time to time nominate after consulting the Lord Chancellor. In practice, what happens is that after a certain period sitting in the Queen’s Bench Division, in the interests of flexibility of deployment, a judge is nominated to sit in the Commercial and Admiralty Courts. Thus any of the Commercial and Admiralty Court judges may deal with Admiralty Court matters (and commonly do so). However, of these judges, it is still the practice for one to be designated as “the Admiralty Judge”.¹⁵ It is the designated Admiralty Judge who usually presides over full trials in the Admiralty Court¹⁶ and who liaises with the Admiralty Registrar in relation to the management of Admiralty Court business generally. There is an Admiralty Court Committee which acts as forum for contact and consultation between the Admiralty Court and its users.¹⁷

The admiralty and commercial registry

1.3 The administrative office for the Admiralty Court is the Admiralty and Commercial Registry located at 7 Rolls Building, Fetter Lane, London EC4A 1NL. Some matters concerning business which has been allocated to the Admiralty Registrar (e.g. listing of applications before the Registrar) are dealt with by the Registrar¹⁸ in Room E.121 in the Royal Courts of Justice, Strand WC2A 2LL rather than in the Rolls Building.

The admiralty registrar

1.4 Since at least 1539, the Admiralty Court has had an Admiralty Registrar.¹⁹ Historically the Registrar had a variety of important administrative functions.²⁰ However, the Registrar also sat in a quasi-judicial capacity (with merchant assessors) to determine the level of damages to be awarded in a variety of Admiralty claims, most commonly collision actions. The amount determined by the Registrar was then reported to the Admiralty Judge who might consider objections before deciding whether to confirm it or not.²¹ The Registrar still presides over such references today. The relevant procedure is described in Chapter 9. The Admiralty Registrar is a full Queen’s Bench Master with all the judicial powers which that entails.²² Furthermore, under CPR Part 61, the Admiralty Registrar additionally has all the powers of “the Admiralty Judge”²³ “except where a rule or practice direction provides otherwise”. The Registrar also has an important case management function. Under paragraph 2.1 of the Practice Direction to CPR Part 61, it is the Registrar who considers every claim form issued in the Admiralty Court and makes a decision as to whether the claim should remain in the Admiralty Court and if so whether the claim will be dealt with by the Admiralty Judge or by the Registrar. In so deciding these questions the Registrar will have regard to the nature of the issues, the sums in dispute and the matters relevant to track allocation under CPR rule 26.8 in so far as they are applicable.²⁴ Although the sum in dispute is not determinative, claims where the sum in dispute is less than £1 million will usually be dealt with by the Registrar. The Registrar therefore acts as a “gate-keeper” for Admiralty Court claims. Hearings before the Admiralty Registrar usually take place in E.121 in the Royal Courts of Justice although if necessary a full court room may be booked by the Registrar. Finally, it is the Admiralty Registrar who liaises with the Admiralty Marshall in respect of the arrest of vessels and release from arrest.

CPR Part 61

1.5 Admiralty claims (as defined in section 20 of the SCA 1981) are subject to CPR Part 61 (Admiralty Claims) and its associated Practice Direction. They respectively provide for CPR Part 58 (Commercial Court) and its associated Practice Direction, to apply except where inconsistent.²⁵ The Admiralty Court and the Commercial Court share an official guide to procedure: The Commercial Court Guide.²⁶

1.6 All claims in the Admiralty Court are “multi-track” claims.²⁷ Certain claims are required to be brought in the Admiralty Court.²⁸ These are:

1. (i) a claim in rem;
2. (ii) a claim for damage done by a ship;
3. (iii) a claim concerning the ownership of a ship;²⁹
4. (iv) any claim under the Merchant Shipping Act 1995;
5. (v) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment;
6. (vi) any claim for loss of life or personal injury sustained in consequence of the wrongful act, neglect or default of
   1. (a) the owners, charterers, or persons in possession or control of the ship; or
   2. (b) the master or crew of a ship or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible;
7. (vii) any claim by a master or member of a crew for wages;
8. (viii) any claim in the nature of towage;
9. (ix) any claim in the nature of pilotage;
10. (x) any collision claim;
11. (xi) any limitation claim;
12. (xii) any salvage claim.

Electronic filing (e-filing)

1.7 With effect from 25 April 2017, all proceedings and applications in the Admiralty Court must be issued online using the court’s own electronic filing system.³⁰ What started life as an ...