ADMIRALTY LAW

Admiralty law

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Admiralty law

History

·         Ordinamenta et consuetudo maris ·         Amalfian Laws ·         Hanseatic League

Features

·           o    Freight rate o    General average ·           o    Marine insurance o    Marine salvage ·           o    Maritime lien o    Ship mortgage ·           o    Ship registration o    Ship transport ·         Shipping ·         International Regulations for Preventing Collisions at Sea

Contracts of affreightment

·           o    Bill of lading o    Charter-party

Types of charter-party

·           o    Bareboat o    Demise ·           o    Time o    Voyage

Parties

·           o    Carrier o    Charterer o    Consignee ·           o    Consignor o    Shipbroker ·           o    Ship-manager o    Ship-owner ·           o    Shipper o    Stevedore

Judiciary

·         Admiralty court ·         Vice admiralty court

International conventions

·         Hague-Visby Rules ·         Hamburg Rules ·           o    Rotterdam Rules o    UNCLOS ·         Maritime Labour Convention ·         International Convention on Salvage

International organisations

·         International Maritime Organization ·         London Maritime Arbitrators Association

·         v ·         t ·         e

Admiralty law or maritime law is a distinct body of law that governs maritime questions and offenses. It is a body of both domestic law governing maritime activities, and private international law governing the relationships between private entities that operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, marine salvaging, shipping, sailors, and the transportation of passengers and goods by sea. Admiralty law also covers many commercial activities, although land based or occurring wholly on land, that are maritime in character.

Admiralty law is distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and international law governing relationships between nations.

Although each legal jurisdiction usually has its own enacted legislation governing maritime matters, admiralty law is characterized by a significant amount of international law developed in recent decades, including numerous multilateral treaties.

Contents

·         1 History of admiralty law

·         2 Features of admiralty law

o    2.1 Maintenance and cure

o    2.2 Personal injuries to passengers

o    2.3 Maritime liens and mortgages

o    2.4 Salvage and treasure salvage

·         3 International conventions

·         4 Piracy

·         5 Individual countries

o    5.1 Canada

o    5.2 United States

§  5.2.1 Jurisdiction

§  5.2.2 Applicable law

§  5.2.3 Features of U.S. admiralty law

§  5.2.3.1 Cargo claims

§  5.2.3.2 Personal injuries to seamen

·         6 Maritime law academic programs

·         7 See also

·         8 References

·         9 External links

History of admiralty law

Seaborne transport was one of the earliest channels of commerce, and rules for resolving disputes involving maritime trade were developed early in recorded history. Early historical records of these laws include the Rhodian law (Nomos Rhodion Nautikos), of which no primary written specimen has survived, but which is alluded to in other legal texts (Roman and Byzantine legal codes), and later the customs of theHanseatic League. In southern Italy the Ordinamenta et consuetudo maris (1063) at Trani and the Amalfian Laws were in effect from an early date.

Bracton noted further that admiralty law was also used as an alternative to the common law in Norman England, which previously required voluntary submission to it by entering a plea seeking judgment from the court.^[1]

Islamic law also made major contributions to international admiralty law,^[2] departing from the previous Roman and Byzantine maritime laws in several ways. These includedMuslim sailors being paid a fixed wage "in advance" with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions in which contracts should specify "a known fee for a known duration." (In contrast, Roman and Byzantine sailors were "stakeholders in a maritime venture, inasmuch as captain and crew, with few exceptions, were paid proportional divisions of a sea venture's profit, with shares allotted by rank, only after a voyage's successful conclusion.") Muslim jurists also distinguished between "coastal navigation, or cabotage", and voyages on the "high seas", and they made shippers "liable for freight in most cases except theseizure of both a ship and its cargo". Islamic law "departed from Justinian's Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was a precursor to the European commenda limited partnership.The "Islamic influence on the development of an international law of the sea" can thus be discerned alongside that of the Roman influence.^[3]

Admiralty law was introduced into England by the French Queen Eleanor of Aquitaine while she was acting as regent for her son, King Richard the Lionheart. She had earlier established admiralty law on the island of Oleron (where it was published as the Rolls of Oleron) in her own lands (although she is often referred to in admiralty law books as "Eleanor of Guyenne"), having learned about it in the eastern Mediterranean while on a Crusade with her first husband, King Louis VII of France. In England, special admiralty courts handle all admiralty cases. These courts do not use the common law of England, but are civil law courts largely based upon the Corpus Juris Civilis of Justinian.

Admiralty courts were a prominent feature in the prelude to the American Revolution. For example, the phrase in the Declaration of Independence "For depriving us in many cases, of the benefits of Trial by Jury" refers to the practice of Parliament giving the Admiralty Courts jurisdiction to enforce The Stamp Act in the American Colonies.^[4] Because the Stamp Act was unpopular, a colonial jury was unlikely to convict a colonist of its violation. However, because admiralty courts did not (as is true today) grant trial by jury, a colonist accused of violating the Stamp Act could be more easily convicted by the Crown.^{[citation needed]}

Admiralty law became part of the law of the United States as it was gradually introduced through admiralty cases arising after the adoption of the U.S. Constitution in 1789. Many American lawyers who were prominent in the American Revolution were admiralty and maritime lawyers in their private lives. Those included are Alexander Hamilton in New Yorkand John Adams in Massachusetts.

In 1787 John Adams, who was then ambassador to France, wrote to James Madison proposing that the U.S. Constitution, then under consideration by the States, be amended to include "trial by jury in all matters of fact triable by the laws of the land [as opposed the law of admiralty] and not by the laws of Nations [i.e. not by the law of admiralty]". The result was the Seventh Amendment to the U.S. Constitution. Alexander Hamilton and John Adams were both admiralty lawyers and Adams represented John Hancock in an admiralty case in colonial Boston involving seizure of one of Hancock's ships for violations of Customs regulations. In the more modern era, Supreme Court Justice Oliver Wendell Holmes was an admiralty lawyer before ascending to the bench.

Features of admiralty law

Maintenance and cure

The doctrine of maintenance and cure is rooted in the Article VI of the Rolls of Oleron promulgated in about 1160 A.D. The obligation to "cure" requires a shipowner to provide medical care, free of charge, to a seaman injured in the service of the ship, until the seaman has reached "maximum medical cure". The concept of "maximum medical cure" is more extensive than the concept "maximum medical improvement". The obligation to "cure" a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they don't "improve" his actual condition. They may include long term treatments that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications.

The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing. Once a seaman is able to work, he is expected to maintain himself. Consequently, a seaman can lose his right to maintenance, while the obligation to provide cure is ongoing.

A seaman who is required to sue a shipowner to recover maintenance and cure may also recover his attorneys fees. Vaughan v. Atkinson, 369 U.S. 527 (1962). If a shipowner's breach of its obligation to provide maintenance and cure is willful and wanton, the shipowner may be subject to punitive damages. See Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)(J. Thomas).

Personal injuries to passengers

Shipowners owe a duty of reasonable care to passengers (for a broad overview of this theory in law, see negligence). Consequently, passengers who are injured aboard ships may bring suit as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent. While the statute of limitations is generally three years, suits against cruise lines must usually be brought within one year because of limitations contained in the passenger ticket. Notice requirements in the ticket may require a formal notice to be brought within six months of the injury. Most U.S. cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami or Seattle.

Maritime liens and mortgages

See also: Maritime lien

Banks which loan money to purchase ships, vendors who supply ships with necessaries like fuel and stores, seamen who are due wages, and many others have a lien against the ship to guarantee payment. To enforce the lien, the ship must be arrested or seized. An action to enforce a lien against a U.S. ship must be brought in federal court and cannot be done in state court, except for under the reverse-Erie doctrine whereby state courts can apply federal law.

Salvage and treasure salvage

See also: Marine salvage

When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salved property. There is no "life salvage". All mariners have a duty to save the lives of others in peril without expectation of reward. Consequently salvage law applies only to the saving of property.

There are two types of salvage: contract salvage and pure salvage, which is sometimes referred to as "merit salvage". In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. The most common salvage contract is called a "Lloyd's Open Form Salvage Contract".

In pure salvage, there is no contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.

Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment to salvage the damaged ship. Examples of high-order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship or boat which has already sunk, or towing a ship which is in the surf away from the shore. Low-order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage.

In both high-order and low-order salvage the amount of the salvage award is based first upon the value of the property saved. If nothing is saved, or if additional damage is done, there will be no award. The other factors to be considered are the skills of the salvor, the peril to which the salvaged property was exposed, the value of the property which was risked in effecting the salvage, the amount of time and money expended in the salvage operation etc.

A pure or merit salvage award will seldom exceed 50 percent of the value of the property salved. The exception to that rule is in the case of treasure salvage. Because sunken treasure has generally been lost for hundreds of years, while the original owner (or insurer, if the vessel was insured) continues to have an interest in it, the salvor or finder will generally get the majority of the value of the property. While sunken ships from the Spanish Main (such as Nuestra Señora de Atocha in the Florida Keys) are the most commonly thought of type of treasure salvage, other types of ships including German submarines from World War II which can hold valuable historical artifacts, American Civil War ships (the USS Maple Leaf in the St. Johns River, and the CSS Virginia in Chesapeake Bay), and sunken merchant ships (the SS Central America off Cape Hatteras) have all been the subject of treasure salvage awards.^{[citation needed]} Due to refinements in side-scanning sonars, many ships which were previously missing are now being located and treasure salvage is now a less risky endeavor than it was in the past, although it is still highly speculative.

International conventions

Prior to the mid-1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as the Comité Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI was responsible for the drafting of numerous international conventions including the Hague Rules (International Convention on Bills of Lading), the Visby Amendments (amending the Hague Rules), the Salvage Convention and many others. While the CMI continues to function in an advisory capacity, many of its functions have been taken over by the International Maritime Organization, which was established by the United Nationsin 1958 but did not become truly effective until about 1974.

The IMO has prepared numerous international conventions concerning maritime safety including the International Convention for the Safety of Life at Sea (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), the International Regulations for Preventing Collisions at Sea (Collision Regulations or COLREGS), Maritime Pollution Regulations (MARPOL), International Aeronautical and Maritime Search and Rescue Convention (IAMSAR) and others. The United Nations Convention on the Law of the Sea (UNCLOS) defined a treaty regarding protection of the marine environment and various maritime boundaries.

Once adopted, the international conventions are enforced by the individual nations which are signatories, either through their local Coast Guards, or through their courts.

Piracy

Main article: Piracy

Merchant vessels transiting areas of increased pirate activity (i.e. the Gulf of Aden, Somali Basin, Southern Red Sea and Bab-el-Mandeb straits) are advised to implement Self-Protective measures in accordance with most recent Best Management Practices agreed upon by the members of the merchant industry, and endorsed by the NATO Shipping Centre, and the Maritime Security Centre Horn-of-Africa (MSCHOA)^[5]

Individual countries

Common law legal systems of the United States and Britain are in contrast to civil law legal systems which prevail in continental Europe and trace back to old Roman codified law.

Most of the common law countries (including Pakistan, Singapore, India, and many other Commonwealth of Nations countries) follow English statute and case law. India still follows many Victorian-era British statutes such as the Admiralty Court Act 1861 [24 Vict c 10]. Whilst Pakistan now has its own statute, the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance XLII of 1980), it also follows English case law. One reason for this is that the 1980 Ordinance is partly modelled on old English admiralty law, namely the Administration of Justice Act 1956. The current statute dealing with the Admiralty jurisdiction of the England and Wales High Court is the Supreme Court Act 1981, ss. 20-24, 37. The provisions in those sections are, in turn, based on the International Arrest Convention 1952. Other countries which do not follow the English statute and case laws, such as Panama, also have established well-known maritime courts which decide international cases on a regular basis.

Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not, and wherever the residence or domicile or their owners may be. A vessel is usually arrested by the court to retain jurisdiction. State-owned vessels are usually immune from arrest.

Canada

Main article: Canadian maritime law

Canadian jurisdiction in the area of "Navigation and Shipping" is vested in the Parliament of Canada by virtue of s. 91(10) of the Constitution Act, 1867.

Canada has adopted an expansive definition of its maritime law, which goes beyond traditional admiralty law. The original English admiralty jurisdiction was called "wet", as it concerned itself with things done at sea, including collisions, salvage and the work of mariners, and contracts and torts performed at sea. Canadian law has added "dry" jurisdiction to this field, which includes such matters as:

·         stevedoring,

·         marine insurance,

·         warehousing and security services,

·         contracts of agency, and

·         contracts of carriage.

This list is not exhaustive of the subject matter.^[6]

Canadian jurisdiction was originally consolidated in 1891, with subsequent expansions in 1934 following the passage of the Statute of Westminster 1931, and in 1971 with the extension to "dry" matters.^[7]

Recent jurisprudence at the Supreme Court of Canada has tended to expand the maritime law power, thus overriding prior provincial laws based on the provinces' power overproperty and civil rights.^[8]

United States

Main article: United States admiralty law

Jurisdiction

Article III, Section 2 of the United States Constitution grants original jurisdiction to U.S. federal courts over admiralty and maritime matters; however, that jurisdiction is not exclusive, and most maritime cases can be heard in either state or federal courts under the "saving to suitors" clause.^[9]

There are five types of cases which can only be brought in federal court:

·         Limitation of Shipowner's Liability,

·         Vessel Arrests in Rem,

·         Property arrests Quasi in Rem,

·         Salvage cases, and

·         Petitory and Possession Actions.

The common element of those cases are that they require the court to exercise jurisdiction over maritime property. For example, in a Petitory and Possession Action, a vessel whose title is in dispute, usually between co-owners, will be put in the possession of the court until the title dispute can be resolved. In a Limitation Action the shipowner will post a bond reflecting the value of the vessel and her pending freight. A sixth category, that of prize (law), relating to claims over vessels captured during wartime, has been rendered obsolete due to changes in the laws and practices of warfare.

Aside from those five types of cases, all other maritime cases, such as claims for personal injuries, cargo damage, collisions, maritime products liability, and recreational boating accidents may be brought in either federal or state court.

From a tactical standpoint it is important to consider that in federal courts in the United States, there is generally no right to trial by jury in admiralty cases, although the Jones Actgrants a jury trial to seamen suing their employers.

Maritime law is governed by a uniform three-year statute of limitations for personal injury and wrongful death cases. Cargo cases must be brought within two years (extended from the one-year allowance under the Hague-Visby Rules), pursuant to the adoption of the Rotterdam Rules.^[10] Most major cruise ship passenger tickets have a one year statute of limitations.

Applicable law

A state court hearing an admiralty or maritime case is required to apply the admiralty and maritime law, even if it conflicts with the law of the state, under a doctrine known as the "reverse-Erie doctrine". While the "Erie doctrine" requires that federal courts hearing state actions must apply substantive state law, the "reverse-Erie doctrine" requires state courts hearing admiralty cases to apply substantive federal admiralty law. However, state courts are allowed to apply state procedural law.^[11] This change can be significant.

Features of U.S. admiralty law

Cargo claims

Claims for damage to cargo shipped in international commerce are governed by the Carriage of Goods by Sea Act (COGSA), which is the U.S. enactment of the Hague Rules. One of its key features is that a shipowner is liable for cargo damaged from "hook to hook", meaning from loading to discharge, unless it is exonerated under one of 17 exceptions to liability, such as an "act of God", the inherent nature of the goods, errors in navigation, and management of the ship.

Personal injuries to seamen

Seamen injured aboard ship have three possible sources of compensation: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to both pay for an injured seaman's medical treatment until maximum medical recovery (MMR) is obtained and provide basic living expenses until completion of the voyage, even if the seaman is no longer aboard ship.

Maritime law academic programs

There are several universities that offer maritime law programs. What follows is a partial list of universities offering postgraduate maritime courses:

·         Canada

·         Dalhousie Law School - LL.M in marine and environmental law

·         France

·         Panthéon-Assas University – LL.M in international, business or private law with marine law courses^[12]

·         University of Western Brittany in Brest - LL.M in marine law ^[13]

·         Germany

·         University of Hamburg with Max Planck Institute for Comparative and International Private Law - PhD in maritime law

·         Malaysia

·         Universiti Teknologi Mara - LL.M in Legal Aspects of Marine Affairs

·         Malta

·         International Maritime Law Institute - LL.M in International Maritime Law

·         Netherlands

·         Erasmus University Rotterdam - LL.M. in Business, Corporate, and Maritime Law; Master of Science (M.Sc.) In Maritime Economics and Logistics (MEL)

·         Norway

·         University of Oslo (Scandinavian Institute of Maritime Law) - LL.M in maritime law

·         University of Oslo - Master of Laws in Maritime Law ^[14]

·         Singapore

·         National University of Singapore - LL.M in maritime law (Graduate Diploma in Maritime Law and Arbitration International Maritime Organization)

·         South Africa

·         University of Cape Town - Masters in Maritime Law

·         Spain

·         Comillas Pontifical University - Master in Maritime Business and Maritime Law (ICADE - Spanish Maritime Institute)

·         University of Deusto - Master in Maritime Enterprise Management and Maritime Law

·         Sweden

·         Lund University - LL.M in maritime law

·         World Maritime University Master of Science in Maritime Affairs (Maritime Law and Policy)

·         Thailand

·         Thammasat University - LL.M. in international trade law

·         United Kingdom

·         Bangor University - LL.M. in Maritime Law and LL.M. in Law of the Sea

·         City University London - LL.M in Maritime Law

·         Lloyd's Maritime Academy - Foundation Diploma in Admiralty Law and Practice

·         London Metropolitan University - LL.M. in International Trade, Transport & Maritime Law

·         Plymouth University - LLM Maritime and Marine Law, LLM Maritime and Marine Law and Practice

·         Queen Mary, University of London - LLM in International Shipping Law

·         Swansea University (Institute of International Shipping and Trade Law) - LL.M. in commercial and maritime law

·         University of Bristol - LL.M. in maritime law

·         University College London - LL.M. in maritime law

·         University of Hertfordshire - LL.M. in maritime law

·         University of Nottingham - LL.M. in maritime law

·         University of Southampton School of Law (Institute of Maritime Law) - LLB (Maritime Law) and LL.M Maritime Law

·         United States

·         Florida Coastal School of Law - LL.M. in Logistics and Transportation Law

·         St. Thomas University School of Law

·         Tulane University Law School - LL.M in admiralty & JD with a Certificate of Specialization in Admiralty & Maritime Law^[15]

·         University of Miami Law School - LL.M in Ocean and Coastal Law

·         University of Miami Law School - LL.M in Ocean and Coastal Law

·         William S. Richardson School of Law University of Hawaii - LL.M. in Ocean Law and Policy ^[16]

References

1.    Jump up^ "De Legibus et Consuetudinibus Angliae".

2.    Jump up^ Khalilieh, Hassan Salih (1998). Islamic Maritime Law – An Introduction. Leiden, Netherlands: Brill Publishers. ISBN 978-90-04-10955-1.

3.    Jump up^ Tai, Emily Sohmer (2007), "Book Review: Hassan S. Khalilieh, Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050): The "Kitāb Akriyat al-Sufun" vis-à-vis the "Nomos Rhodion Nautikos"", Medieval Encounters 13: 602–12

4.    Jump up^ See the Stamp Act, March 22, 1765, D. Pickering, Statutes at Large, Vol. XXVI, p. 179 ff (clause LVII relates to jurisdiction in admiralty).

5.    Jump up^ NATO Shipping Centre (www.shipping.nato.int)

6.    Jump up^ John G. O'Connor (2004-11-05). "Why the Full Extent of the Admiralty Jurisdiction of the Federal Courts has yet to be explored". Retrieved 2011-09-27.

7.    Jump up^ John G. O'Connor (2011-10-28). "Admiralty Jurisdiction and Canadian Maritime Law in the Federal Courts: The next forty years". Retrieved 2012-05-25.

8.    Jump up^ Christopher J. Giaschi (2000-10-03). "The Constitutional implications of Ordon v. Grail and the expanding definition of Canadian maritime law". Retrieved 2012-01-10.

9.    Jump up^ 28 U.S.C. § 1333

10. Jump up^ [1]^{[dead link]}

11. Jump up^ [2]^{[dead link]}

12. Jump up^ Université Panthéon-Assas—droit maritime (programme de cours)

13. Jump up^ Master Droit des Espaces et des Activités Maritimes. Formations.univ-brest.fr. Retrieved on 2013-08-02.

14. Jump up^ Maritime Law in Norway

15. Jump up^ http://www.law.tulane.edu/tlsAcademicPrograms/index.aspx?id=1726

16. Jump up^ Maritime Law in Hawaii

External links

Wikiquote has quotations related to: Admiralty law

·         Admiralty and Maritime Law Guide

·         Westminster International Maritime Security and the ISPS Code

·         LII: Law about... Admiralty

·         Law of the Sea at the UN web

·         Marine Affairs Institute at Roger Williams University School of Law

·         Tetley's maritime & admiralty law

Penulis : Drs.Simon Arnold Julian Jacob