| Admiralty and maritime law |
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| International Codes |
Maritime law oradmiralty law is a body oflaw that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, andprivate international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerousmultilateral treaties.[a]
Admiralty law, which mainly governs the relations of private parties, is distinguished from thelaw of the sea, a body ofpublic international law regulating maritime relationships between nations, such as navigational rights,mineral rights, and jurisdiction over coastal waters. While admiralty law is adjudicated in national courts, theUnited Nations Convention on the Law of the Sea has been adopted by 167 countries[b] and theEuropean Union, and disputes are resolved at theITLOS tribunal in Hamburg.
Shipping was one of the earliest channels of commerce, and rules for resolving maritime trade disputes were developed early. An ancient example was theRhodian law (Nomos Rhodion Nautikos), of which no extensive written specimen has survived, but which is alluded to in other legal texts (Roman and Byzantine legal codes). In southern Italy theOrdinamenta et consuetudo maris (1063) atTrani and theAmalfian Laws were in effect from an early date, and later the customs of theConsulate of the Sea and theHanseatic League.
Bracton notes 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.[2]
A leading sponsor of admiralty law in Europe was the FrenchQueen Eleanor of Aquitaine. Eleanor had learned about admiralty law while on theSecond Crusade in theeastern Mediterranean with her first husband, KingLouis VII of France. Eleanor then established admiralty law on the island ofOléron, where it was published as theRolls of Oléron. Some time later, while she was in London asregent for her son, KingRichard I of England, Eleanor instituted admiralty law in England as well.
InEngland and Wales, a specialAdmiralty Court handles all admiralty cases. Despite early reliance uponcivil law concepts derived from theCorpus Juris Civilis ofJustinian, the English Admiralty Court is acommon law court, albeitsui generis, that was initially somewhat distinct from other English courts. After around 1750, as theIndustrial Revolution took hold and English maritime commerce burgeoned, the Admiralty Court became a fertile source of legal innovation to meet the new situations of the modern economy. TheJudicature Acts of 1873–1875 abolished the Admiralty Court as such, and it became conflated in the new Probate, Divorce and Admiralty division of the High Court. However, when the PDA was abolished and replaced by a new Family Division, admiralty jurisdiction passed to a so-called Admiralty Court which was effectively theKing's Bench sitting to hear nautical cases. TheSenior Courts Act 1981 then clarified the admiralty jurisdiction of the Queen's Bench, so England and Wales once again has a distinct Admiralty Court (albeit no longer based in theRoyal Courts of Justice, but in theRolls Building).
English Admiralty courts were prominent in the disputes leading to theAmerican 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 the UK Parliament giving the Admiralty Courts jurisdiction to enforce theStamp Act 1765 in the American colonies.[3] The Stamp Act was unpopular in America, so a colonial jury would beunlikely to convict a colonist of its violation. The Admiralty Court, which has never allowed trial by jury, was thus empowered to enforce the statute more effectively.[4][5]
Admiralty law gradually became part ofUnited States law through admiralty cases arising after the adoption of theU.S. Constitution in 1789. Many American lawyers prominent in the American Revolution were admiralty and maritime lawyers, includingAlexander Hamilton inNew York andJohn Adams inMassachusetts.
In 1787,Thomas Jefferson wrote toJames Madison proposing that the US 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 and not by the laws of Nations". The result was theUnited States Bill of Rights.[6] Alexander Hamilton and John Adams were both admiralty lawyers and Adams representedJohn 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 JusticeOliver Wendell Holmes was an admiralty lawyer before ascending to the bench.
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Matters dealt by admiralty law include marine commerce,marine navigation,salvage,maritime pollution,seafarers' rights, and thecarriage by sea of both passengers andgoods. Admiralty law also covers land-based commercial activities that are maritime in character, such as marine insurance. Some lawyers prefer to reserve the term "admiralty law" for "wet law" (e.g. salvage, collisions, ship arrest, towage, liens and limitation), and use "maritime law" only for "dry law" (e.g. carriage of goods and people,marine insurance, and theMaritime Labour Convention).[c][citation needed]
The doctrine of maintenance and cure is rooted in Article VI of theRolls of Oléron promulgated in about 1160 AD. The obligation to "cure" requires a shipowner to provide medical care free of charge to aseaman 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 do not "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 the obligation to provide maintenance and cure is willful and wanton, the shipowner may be subject to punitive damages. SeeAtlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009) (J. Thomas).
Shipowners owe aduty of reasonable care to passengers. 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 personal injury cases must generally be pursued within three years, suits against cruise lines may need to 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 US cruise line passenger tickets also have provisions requiring that suit to be brought in eitherMiami orSeattle.
InEngland, the 1954 case ofAdler v Dickson (The Himalaya) [1954][7] allowed a shipping line to escape liability when a bosun's negligence resulted in a passenger being injured. Since then, theUnfair Contract Terms Act 1977 has made it unlawful to exclude liability for death or personal injury caused by one's negligence. (Since then, however, the so-called "Himalaya clause" has become a useful way for a contractor to pass on the protection of a limitation clause to his employees, agents and third-party contractors.)
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 alien against the ship to guarantee payment. To enforce the lien, the ship must be arrested or seized. In the United States, an action to enforce a lien against a US ship must be brought in federal court and cannot be done in state court, except for under the reverseErie Doctrine whereby state courts can apply federal law.
When property is lost at sea and rescued by another, the rescuer (salvor) is entitled to claim asalvage award on the salvaged property. This applies only to the saving of property: there is no "life salvage", as all mariners have a duty to save the lives of others in peril without expectation of reward.
There are two types of salvage: contract salvage and pure salvage (merit salvage). In contract salvage, the owner of the property and the salvor enter into a salvage contract prior to salvage operations, for an agreed payment. The most common form is a "Lloyd's Open Form Salvage Contract".
In pure salvage, there is no contract between the owner of the goods and the salvor, and the relationship is imputed by law. The salvor must bring his claim for salvage in court, which awards 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 and his crew risk of injury and damage to equipment during salvage operations: for example boarding a sinking ship in heavy weather, boarding a ship on fire, raising a ship which has already sunk, or towing a ship away from the surf near shore. In low-order salvage, the salvor takes little or no personal risk, for example towing a vessel in calm seas, supplying fuel, or pulling a vessel off a sand bar. High-order salvage earns a substantially greater salvage award.
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, etc.
A pure or merit salvage award will seldom exceed 50 percent of the value of the property saved. The exception 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 theSpanish Main (such asNuestra Señora de Atocha in theFlorida Keys) are the most famous type of treasure salvage, other types – including German submarines from World War II which can hold valuable historical artifacts,American Civil War ships (the USSMaple Leaf in theSt. Johns River, and theCSSVirginia inChesapeake Bay), and sunken merchant ships (theSSCentral America offCape Hatteras) – have all been the subject of treasure salvage awards.[citation needed] Due to refinements in side-scanning sonars, many more ships are now being located and treasure salvage is less risky, although it is still highly speculative and expensive.
In maritime law, it is occasionally desirable to distinguish between the situation of a vessel striking a moving object and that of it striking a stationary object. The word "allision" is then used to mean the striking of a stationary object, while "collision" is used to mean the striking of a moving object.[8][9][10] Thus, when two vessels run against each other, courts typically use the termcollision whereas when one vessel runs against a stationary object, they typically use the termallision.[11] The fixed or stationary object could be abridge ordock.
While there is no great difference between the two terms and often they are even used interchangeably, determining the difference helps clarify the circumstances of emergencies and adapt accordingly.[12]
Before the mid-1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as theComité Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI drafted 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 theInternational Maritime Organization (IMO). In 1948 an international conference in Geneva adopted a convention formally establishing IMO (the original name was the Inter-Governmental Maritime Consultative Organization, or IMCO, but the name was changed in 1982 to IMO with UN Convention on the Law of the Sea). The IMO Convention entered into force in 1958 and the new Organization met for the first time the following year.[13] The IMO has prepared numerous international conventions concerning maritime safety, including theInternational Convention for the Safety of Life at Sea (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), theInternational Regulations for Preventing Collisions at Sea (Collision Regulations or COLREGS), Maritime Pollution Regulations (MARPOL),International Convention on Maritime Search and Rescue (SAR Convention) and others. TheUnited Nations Convention on the Law of the Sea (UNCLOS) defined a treaty regarding protection of the marine environment and variousmaritime boundaries. Restrictions on international fishing such asInternational Convention for the Regulation of Whaling also form part of the body of conventions in international waters. Other commercial conventions include the "International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships",Brussels, 10 October 1957.[14] andInternational Convention for Safe Containers.[15]
Once adopted, most international conventions are enforced by the individual signatory nations, either through theirPort State Control, or through their national courts. Cases within the ambit of theEuropean Union'sEMSA may be heard by theCJEU inLuxembourg. By contrast, disputes involving the Law of the Sea may be resolved atITLOS inHamburg, provided that the parties are signatories toUNCLOS.
Throughout history, piracy has been defined ashostis humani generis, or the enemy of all mankind. While theflag state normally has jurisdiction over a ship on the high seas, there isuniversal jurisdiction in the case of piracy, which means that any nation may pursue pirates on the high seas, including pursuing them into a country's territorial waters. Most nations have signed onto the 1982United Nations Convention on the Law of the Sea which dictates the legal requirements for pursuing pirates.
Merchant vessels transiting areas of increased pirate activity (i.e. theGulf of Aden,Somali Basin, SouthernRed Sea andBab-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).[16]
Thecommon law ofEngland and Wales, ofNorthern Ireland law, and ofUS law, contrast to thecontinental law (civil law) that prevails inScottish law and incontinental Europe, which trace back toRoman law. Although theEnglish Admiralty court was a development of continental civil law, the Admiralty Court of England and Wales was a common law court, albeit somewhat distanced from the mainstreamKing's Bench.
Most of the common law countries (includingPakistan,Singapore,India, and many otherCommonwealth of Nations countries) follow English statute and case law. India still follows many Victorian-era British statutes such as theAdmiralty Court Act 1861 [24 Vict c 10]. While 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 theSenior Courts 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 asPanama, 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.
Canadian jurisdiction in the area of navigation and shipping is vested in theParliament of Canada by virtue of s. 91(10) of theConstitution 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:
This list is not exhaustive of the subject matter.[17]
Canadian jurisdiction was originally consolidated in 1891, with subsequent expansions in 1934 following the passage of theStatute of Westminster 1931, and in 1971 with the extension to "dry" matters.[18]
Recent jurisprudence at theSupreme 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.[19]
Article III, Section 2 of theUnited States Constitution grants original jurisdiction toU.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.[20]
There are five types of cases which can only be brought in federal court:
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 ofprize, 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 1920Jones Act grants 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 theHague-Visby Rules), pursuant to the adoption of theRotterdam Rules.[21] Most major cruise ship passenger tickets have a one-year statute of limitations.
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.[22][unreliable source?] This change can be significant.
Claims for damage to cargo shipped in international commerce are governed by theCarriage 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 innavigation, and management of the ship. The basis of liability for the shipowner is abailment and if the carrier is to be liable as acommon carrier, it must be established that the goods were placed in the carrier's possession and control for immediate carriage.[23]
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Seamen injured aboard ship have three possible sources of compensation: the principle of maintenance and cure, the doctrine of unseaworthiness, and theJones 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.[24]
Admiralty law inPakistan is also classified asshipping law. The PakistanMerchant Shipping Ordinance 2001[25] has replaced theMerchant Shipping Act 1923.[26] This replacement was done in 2001 to handle the constantly upgrading modern shipping industry. The purpose of the Pakistan Merchant Shipping Ordinance 2001 is to provide a strategy and rules under which the government authorities will function in dealing with stuff related to the shipping industry. This law also handles duties internationally required under the ILO (International Labour Organization) conventions as Pakistan is an active member of the ILO.[27]
There are several universities that offer maritime law programs. What follows is a partial list of universities offering postgraduate maritime courses:
A pseudolegalconspiracy theory of American origin, notably present among the anti-governmentsovereign citizen andfreeman on the land movements, asserts that at some point maritime law, which they consider to be the law ofinternational commerce,[34][35] substituted for the original, legitimate "common law" system as part of a broader conspiracy which secretly replacedgovernments withcorporations. Thejudiciary hence becameadmiralty courts with nojurisdiction over people.[35][36][37] Sovereign citizens notably claim that the presence ofgold fringes on the American flags displayed in courtrooms is evidence of maritime law being in effect.[37]
One variation of this theory is based on a misinterpretation of the EnglishCestui Que Vie Act 1666 which stated that a person missing at sea shall be assumed to be dead after seven years; conspiracy theorists claim that the government uses this Act to secretly enslave people, by assuming any person to belegally dead from the age of seven and thereafter considering their person and/or property as its possessions.[38]
The origin of the maritime law conspiracy theory is unknown, though it may stem from a misunderstanding of some nautical-sounding words in common usage in the English-language judiciary such asownership,citizenship,dock orbirth (berth) certificate.[35] This theory is entirely devoid of merit: when invoked by litigants, it has been consistently dismissed asfrivolous.[35][39][40]
The striking by a vessel of a fixed object such as a bridge, technically termed 'allision' rather than 'collision'.
collision—vessel struck or was struck by another vessel on the water surface, or struck a stationary object, not another ship (an allision).
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