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Admiralty law (also referred to as maritime law) is a distinct body of law which 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 which operate vessels on the oceans. It deals with matters including marine commerce, marine navigation, 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

Background

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 (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 the Hanseatic League.

Islamic law also made major contributions to international admiralty law, departing from the previous Roman and Byzantine maritime laws in several ways. These included Muslim 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 to Roman and Byzantine sailors who were "stakeholders in a maritime venture, in as much 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 also made shippers "liable for freight in most cases except the seizure of both a ship and its cargo." Islamic law also "departed from Justinian’s Digest and the Nomos Rhodion Nautikos in condemning slave jettison", and the Islamic Qirad was also 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.[1]

Admiralty law was introduced into England by 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.[2] 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.

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 York and John Adams in Massachusetts.

In 1787 Thomas Jefferson, 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 federal bench.

Features of admiralty law

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Maintenance and cure

The doctrine of maintenance and cure is rooted in the Article VI of the Rules 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 (see: Seaman (Admiralty Law)) 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 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. ___ (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 the same 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. 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.

Salvage and treasure 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 "Lloyds 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 federal 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 in order 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. 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 Nations in 1958 but did not become truly effective until about 1974.

The IMO has prepared numerous international conventions concerning maritime safety including the Safety of Life at Sea Convention (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), the Collision Regulations (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

While the non-wartime 20th century tradition has been for merchant vessels not to be armed, the U.S. Government has recently changed the rules so that it is now "best practice" for vessels to embark a team of armed private security guards.[3][4]

In individual countries

Maritime law of common law countries

Most of the common law countries (including Pakistan, Singapore, India, Canada, and many other Commonwealth of Nations countries) follow English statutes 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 statutes such as the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance XLII of 1980), it still follows English case law. One reason for this is that Pakistani law is partly modelled on old English admiralty law as defined in the Administration of Justice Act, 1956. The current statute dealing with the Admiralty jurisdiction of the England and Wales High Court in Pakistan is the Supreme Court Act, 1981 (sec.20-24,37). This statute is, in turn, based on the International Arrest Convention 1952. Other countries which do not follow the English statutes 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.

In the United States

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.[5]

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 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 one year. 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.[6] 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 around the world that offer different types of alternatives to professionals interested in pursuing this field.

What follows is a partial list of universities offering postgraduate maritime courses:

India

University of Petroleum and Energy Studies, Dehradun - MBA in Shipping and Port Management

See also

References

  1. ^ 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  
  2. ^ See the Stamp Act, March 22, 1765, D. Pickering, Statutes at Large, Vol. XXVI, p. 179 ff (clause LVII relates to jurisdiction in admiralty).
  3. ^ "Loaded: Freighters Ready to Shoot Across Pirate Bow", by John W. Miller, Wall Street Journal, January 5, 2009
  4. ^ "Maersk Alabama “Followed Best Practice”", by Bob Couttie, November 20, 2009, Maritime Accident Casebook
  5. ^ 28 U.S.C. § 1333
  6. ^ http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/Oliveri-76-5.pdf

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