Admiralty law: Difference between revisions

Admiralty law may be distinguished from the [[law of the sea]], which is a body of [[International law|public international law]] dealing with navigational rights, [[mineral rights]], jurisdiction over coastal waters, and the maritime relationships between nations. The [[United Nations Convention on the Law of the Sea]] has been adopted by 167 countries{{efn|The Convention on the Law of the Sea has not been ratified by 29 United Nations member and observer states, most notably the United States.<ref name=rat2>{{cite web|url=https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-6-a&chapter=21&clang=_en|title=Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea|access-date=2015-04-02|publisher=[[United Nations Treaty Series]]}}</ref> See [[United States non-ratification of the UNCLOS]].}} and the [[European Union]], and disputes are resolved at the [[ITLOS]] tribunal in Hamburg.

[[Henry de Bracton|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.<ref>{{cite web|title=De Legibus et Consuetudinibus Angliae|author=((Henry of Bratton and probably others))|publisher=Bracton Online home, Harvard Law School Library|url=httphttps://wwwamesfoundation.law.harvard.edu/programsBracton/ames_foundation/bracton.html|date=1220–1250}}</ref>

A leading sponsor of admiralty law in Europe was the French [[Eleanor of Aquitaine|Queen Eleanor of Aquitaine]]. Eleanor (sometimes known as Eleanor of Guyenne) had learned about admiralty law whilstwhile on athe [[Crusades|crusadeSecond Crusade]] in the [[eastern Mediterranean]] with her first husband, King [[Louis VII of France]]. Eleanor then established admiralty law on the island of [[Oléron]], where it was published as the [[Rolls of Oléron]]. Some time later, while she was in London acting as [[regent]] for her son, King [[Richard I of England]], Eleanor instituted admiralty law into England as well.

In [[England and Wales]], a special [[Admiralty Court]] handles all admiralty cases. Despite early reliance upon [[civil law (legal system)|civil law]] concepts derived from the {{lang|la|[[Corpus Juris Civilis]]}} of [[Justinian I|Justinian]], the English Admiralty Court is a [[common law]], albeit ''[[sui generis]]'' court that was initially somewhat distanced from other English courts. After around 1750, as the [[industrialIndustrial revolutionRevolution]] took hold and English maritime commerce burgeoned, the Admiralty Court became a proactive source of innovative legal ideas and provisions to meet the new situation. The [[Judicature Act]]s 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 the [[King's Bench Division|King's Bench]] sitting to hear nautical cases. The [[Senior Courts Act 1981]] then clarified the admiralty jurisdiction of the Queen's Bench, so England and Wales once again has<!-- sic --> a distinct Admiralty Court (albeit no longer based in the [[Royal Courts of Justice]], but in the [[Rolls Building]]).

English 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 the UK Parliament giving the Admiralty Courts jurisdiction to enforce the [[Stamp Act 1765]] in the American colonies.<ref>Duties in American Colonies Act 1765 (5 Geo. 3 c. 12), 22 March 1765. D. Pickering, ''Statutes at Large'', Vol. XXVI, p. 179ff. (Section LVII relates to jurisdiction in admiralty.)</ref> The Stamp Act was unpopular in America, so a colonial jury would be [[Jury nullification|unlikely to convict]] any colonist of its violation. The Admiralty Court, which has never had trial by jury, was thus given jurisdiction so a colonist charged with breaching the Stamp Act could be more easily convicted by the Crown.<ref>{{Cite web|url=https://www.history.com/topics/american-revolution/stamp-act|title=Stamp Act|website=HISTORY|language=en|access-date=2019-10-31}}</ref><ref>{{Cite web|url=http://www.history.org/Foundation/journal/Spring08/trials.cfm|title=Trial By Jury|website=www.history.org|language=en|access-date=2019-10-31}}</ref>

In 1787, [[Thomas Jefferson]] 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 and not by the laws of Nations". The result was the [[United States Bill of Rights]].<ref>Hofstadter, &nbsp;Richard (1958). ''Great Issues in American History: 1765–1865''. vol. 2: 1864–1957. &nbsp;United States: &nbsp;Vintage Books.</ref> 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 Jr.|Oliver Wendell Holmes]] was an admiralty lawyer before ascending to the bench.

Matters dealt by admiralty law include marine commerce, [[marine navigation]], [[marine salvage|salvage]], [[maritime pollution]], [[sailor|seafarers' rights]], and the [[Contract of carriage|carriage]] by sea of both passengers and [[Freight transport|goods]]. 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 the [[Maritime Labour Convention]]).{{efn|The title of Aleka Mandaraka-Sheppard's book changed from {{cite book |title=Modern Admiralty Law |date=2007 |isbn=9781843141969 |edition=2nd|last1=Mandaraka-Sheppard |first1=Aleka |publisher=Cavendish }} to {{cite book |title=Modern Maritime Law |date=2014 |isbn=9780415843201 |edition=3rd|last1=Mandaraka-Sheppard |first1=Aleka |publisher=Routledge }}}}{{Citation needed|reason=The change in title of a book is not a source for the "wet law" / "dry law" distinction, especially as arrest a "wet law", is dealt with in the 3rd ed.edition |date=January 2019}}

When property is lost at sea and rescued by another, the rescuer is entitled to claim a [[Salvage diving|salvage]] award on the salvaged 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.

===<span class="anchor" id="Allision"></span>Allision===

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 "[[wikt:allision|allision]]" is then used to mean the striking of a stationary object, while "[[Ship collision|collision]]" is used to mean the striking of a moving object.<ref>merriam-webster.com, "[http://www.merriam-webster.com/dictionary/allision Allision]". Accessed November 7, 2014.</ref><ref>{{cite journal |title=Admiralty Court Rejects Equal Division Rule and Apportions Damages Unequally in Multiple Fault Collision Case |journal=Columbia Law Review |volume=63 |issue=3 |date=March 1963 |page=554 footnote 1 |doi=10.2307/1120603 |jstor=1120603 |quote=The striking by a vessel of a fixed object such as a bridge, technically termed 'allision' rather than 'collision'}}.</ref><ref>{{cite journal |first=Wayne K. |last=Talley |title=Safety Investments and Operating Conditions: Determinants of Accident Passenger-Vessel Damage Cost |journal=Southern Economic Journal |volume=61 |issue=3 |date=January 1995 |jstor=1061000 |page=823, note 11 |doi=10.2307/1061000 |quote=collision&mdash;vessel struck or was struck by another vessel on the water surface, or struck a stationary object, not another ship (an allision)}}.</ref> Thus, when two vessels run against each other, courts typically use the term ''collision'' whereas when one vessel runs against anothera stationary object, they typically use the term ''allision''.<ref>{{cite journal |last1=Healy |first1=Nicholas J. |last2=Sweeney |first2=Joseph C. |title=Basic Principles of the Law of Collision |journal=Journal of Maritime Law and Commerce |date=July–October 1991 |volume=22 |issue=3 |page=359}}</ref> The fixed object could also be a [[bridge]] or [[Dock (maritime)|dock]]. 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.<ref>{{Cite web|url=https://response.restoration.noaa.gov/about/media/you-say-collision-i-say-allision-lets-sort-whole-thing-out.html|title=You Say Collision, I Say Allision; Let's Sort the Whole Thing Out |website=response.restoration.noaa.gov|language=en|access-date=2018-08-28}}</ref> In the case of ''Vane Line Bunkering, Inc. v. Natalie D M/V,'' it was established that there was the presumption that the moving vessel is at fault, stating that "presumption derives from the common-sense observation that moving vessels do not usually collide with stationary objects unless the [moving] vessel is mishandled in some way".<ref>{{Cite news|url=https://www.leagle.com/decision/infdco20180222d82|title=Vane Line Bunkering, Inc. {{!}} Civil Action No. 17-1882. {{!}} 20180222d82 |last=Fallon |first=Eldon E. |date=February 20, 2018 |work=Leagle|access-date=2018-08-28|language=en}}</ref> This is also referred to{{by whom|date=December 2019}} as ''The Oregon Rule.''<ref>See [https://openjurist.org/158/us/186 158 U.S. 186 - The Oregon], especially paragraph 10.</ref>

Before 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 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 the [[International 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 (https://www.imo.org/en/About/HistoryOfIMO/Pages/Default.aspx). 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 Convention on Maritime Search and Rescue]] (SAR Convention) 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 boundary|maritime boundaries]]. Restrictions on international fishing such as [[International 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.<ref>[http://www3.austlii.edu.au/au/other/dfat/treaties/1981/2.html "International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships, and Protocol of Signature. ATS 2 of 1981"] {{Webarchive|url=https://web.archive.org/web/20170415112546/http://www3.austlii.edu.au/au/other/dfat/treaties/1981/2.html |date=2017-04-15 }}. Australasian Legal Information Institute, Australian Treaties Library. Retrieved on 15 April 2017.</ref> and [[International Convention for Safe Containers]].<ref>[http://www3.austlii.edu.au/au/other/dfat/treaties/1981/3.html "International Convention for Safe Containers. ATS 3 of 1981"] {{Webarchive|url=https://web.archive.org/web/20170415202241/http://www3.austlii.edu.au/au/other/dfat/treaties/1981/3.html |date=2017-04-15 }}. Australasian Legal Information Institute, Australian Treaties Library.</ref>

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]. WhilstWhile 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 [[Senior 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 as [[Panama]], also have established well-known maritime courts which decide international cases on a regular basis.

**[[University of Oslo]] – Master of Laws in Maritime Law<ref>{{cite web|url=https://www.edumaritime.net/norway/scandinavian-institute-of-maritime-law-oslo|title=University of Oslo (UiO) - Maritime & North Sea Energy Law Education|work=EduMaritime.net|date=25 November 2017 |access-date=11 August 2022}}</ref>

**[[Tulane University Law School]] – LL.M in admiralty and JD with a Certificate of Specialization in Admiralty & Maritime Law<ref>{{cite
web|url=http://www.law.tulane.edu/tlsAcademicPrograms/index.aspx?id=1726|title=Tulane Law School Academics|access-date=17 August 2015|archive-url=https://web.archive.org/web/20150721223230/http://www.law.tulane.edu/tlsAcademicPrograms/index.aspx?id=1726|archive-date=21 July 2015|url-status=dead}}</ref>

A pseudolegal [[conspiracy theory]] of American origin, notably present among the anti-government [[sovereign citizen movement|sovereign citizen]] and [[freeman on the land movement|freeman on the land]] movements, asserts that at some point maritime law, which they consider to be the law of [[International trade|international commerce]],<ref name="GWedu">{{citation|title= Without Prejudice: What Sovereign Citizens Believe|work= |publisher= George Washington University|first1= JM|last1= Berger|date= June 2016|url= https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/downloads/JMB%20Sovereign%20Citizens.pdf|access-date= 2022-02-07|archive-date= 2022-02-04|archive-url= https://web.archive.org/web/20220204124146/https://extremism.gwu.edu/sites/g/files/zaxdzs2191/f/downloads/JMB%20Sovereign%20Citizens.pdf|url-status= dead}}</ref><ref name="Benchmark">[https://web.archive.org/web/20131216185721/http://judiciary.sut1.co.uk/docs/benchmark/benchmark_feb2012.pdf "Nonsense or loophole?"], ''Benchmark'', Issue 57, February 2012, pp 18–19</ref> substituted for the original, legitimate "[[common law]]" system as part of a broader conspiracy which secretly replaced [[government]]s with [[corporation]]s. The [[judiciary]] hence became [[admiralty courts]] with no actual [[jurisdiction]] over people.<ref name="Benchmark"/><ref name="SPLC2022">{{Citation |title=Sovereign Citizens Movement|url=https://www.splcenter.org/fighting-hate/extremist-files/ideology/sovereign-citizens-movement |publisher=[[Southern Poverty Law Center]] |access-date=January 6, 2022}}</ref><ref name="spl4">{{citation |title= The Sovereigns: A Dictionary of the Peculiar |work= |publisher = Southern Poverty Law Center |date= August 1, 2010 |url= https://www.splcenter.org/fighting-hate/intelligence-report/2010/sovereigns-dictionary-peculiar|access-date= 2022-01-20}}</ref> Sovereign citizens notably claim that the presence of [[Flag of the United States#Decoration|gold fringes]] on the American flags displayed in courtrooms is evidence of maritime law being in effect.<ref name="spl4"/>

One variation of this theory is based on a misinterpretation of the English [[Cestui 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 be [[Legal death|legally dead]] from the age of seven and thereafter considering their person and/or property as its possessions.<ref>{{citation |title= Freeloaders on the Land |date=3 June 2014 |publisher = [[Conway Hall Ethical Society]] |url=https://www.conwayhall.org.uk/blogs/2014/06/freeloaders-on-the-land/ |access-date= 2022-07-12}}</ref>