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The Purpose of Admiralty Law BY Hon. Robert Fisher QC

The Purpose of Admiralty Law BY Hon. Robert Fisher QC

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(2004) 18 MLAANZ Journal
The Purpose of Admiralty Law
Hon. Robert Fisher QC
*
Arbitrator and Mediator, former Judge of the New ZealandHigh Court
Edited version of Address to the MLAANZ New Zealand Branch Seminar 3 April2004Introduction
Admiralty lawyers face a challenge. On the one hand admiralty law is the impressiveresult of experience gained over many centuries. On the other, the law must keep pacewith modern needs. The thesis of this article is that in this area developments should beguided by the underlying purposes of admiralty law. Before that can happen, theunderlying purposes have to be identified. Only when they have been identified will wehave proper criteria against which to measure proposals for reform. Areas in whichadmiralty law has developed in obscure or anomalous ways are notable for the absenceof any clear articulation of underlying purpose.
Why do purposes matter?
Value of the status quo
Of course the law should be left alone unless there is clear reason for changing it.Preference for the status quo is even stronger than usual in the case of admiralty law. Itslineage is awe-inspiring, both in its antiquity and in the diverse sources from which ithas been drawn.
1
Added to this is its international nature. Individual countries should be slow to depart from that general body of law to which other countries adhere.
2
 
*
Robert Fisher QC studied at Victoria University of Wellington, Southampton and London Universities andthe Federal Judicial Center, Washington DC. His qualifications and appointments include Doctor of Laws(1984; Victoria); Yachtmaster (Ocean) (1985), Queen’s Counsel (1985) and Fulbright Scholar (1994). He wasa legal practitioner for 24 years (1965–1989) and a High Court Judge for 15 years (1989–2004). While aJudge he held positions as Chairman of the NZ Rules Committee, Supervising Judge of the Commercial List,Executive and Senior Judge of the Auckland High Court, and divisional member of the NZ Court of Appeal.He has lectured widely on a variety of legal topics, including commercial law, intellectual property, maritimelaw, relationship property, evidence, procedure, jurisprudence, and advocacy. His publications include
 Fisher on Matrimonial and Relationship Property
(LexisNexis, Wellington, 3 eds, 730 pp);
 NZ HalsburyCommentary on Patents
(Butterworths, Wellington, 1988); the “New Zealand Legal Method: Influences andConsequences” section of 
 Legal Method in New Zealand 
, (Butterworths, Wellington, 2001, at 25-76), and avariety of published articles. He has been a consulting editor of 
 Laws of New Zealand 
(LexisNexis) since1992. Since leaving the bench in March 2004 he has been in full-time practice as an arbitrator, mediator, andconsultant.This article is an edited version of the keynote address delivered to the MLAANZ New Zealand BranchSeminar held at Wairakei on 3 April 2004. The author wishes to thank Jeremy Browne, Judges’ Clerk of Auckland, for his extensive help with this article.
1
For an interesting account see Wiswall, F.L.,
 Development of Admiralty Jurisdiction and Practice Since1800;An English Study with American Comparisons
, Cambridge University Press, 1970.
2
 Det Norske Veritas AS v The Ship “Clarabelle”
[2002] 3 NZLR 52, at pp 56-57 (CA).
 
The Purpose of Admiralty Law 15
(2004) 18 MLAANZ Journal
The need to adapt 
But no area of the law can remain frozen for long. Even without reform, existinglegislation and judicial decisions can never hope to provide a clear prescription for allsituations that can arise. The courts constantly face the need for fresh legal choices.Recent examples in admiralty law include the questions whether redundancy claims fallwithin the wages maritime lien,
3
and the circumstances in which shipboard personalinjury accidents fall within the scope of the damage maritime lien.
4
In addition, admiralty law must operate in a constantly changing world. The abilityto contact a vessel anywhere in the world has substantially diminished the powers of masters.
5
Owners and charterers now exercise significant control over the running of the ship. Consequently, although once regarded as bailees for the owners, masters arenow regarded as merely the servant custodians of owners for bailment purposes.
6
Another example is that growth in the number, size and speed of ships in the late 19
th
century was seen as a reason for interpreting the rules of maritime liability in a manner  best fitted to secure careful and prudent navigation, and hence to expand the scope of the damage maritime lien.
7
So admiralty law must keep pace with the changes that aregoing on around it.Changes in the court environment are another impetus for change. Early admiralty procedures, such as the judge sitting with two assessors in collision cases,
8
evidencesolely by deposition and affidavit, arrest of the person, and a special procedure knownas “monition” whereby a person was commanded to appear on pain of contempt, have passed into history. More modern procedures, particularly drawn from common law,have been brought to bear.
 Decline in formalism
These developmental pressures have been accompanied by a growing tendency to look  beyond formalism for the answer to new problems. Formalism focuses upon form and precedent as distinct from practical consequences.
9
The modern trend is to place lessemphasis upon formalism and more upon an articulation of the purposes for which alaw exists. De-personification of ships illustrates the point. In an earlier age it wasuseful to personify ships as a metaphor. The metaphor made it easier to apply to ships a bracket of liabilities and procedures drawn from the more familiar treatment of humansand other legal entities. By treating the ship as if it were the actual wrongdoer, anaction could be brought
in rem
against the ship itself. On this rationale, concurrent
in personam
liability of the owner or charterer was not a pre-condition to liability of theship.Procedural theory, on the other hand, recognises that the action
in rem
is really anindirect action against the person or persons who would be liable
in personam
. On thatapproach arrest of a ship is simply a way of inducing the owner to appear and defend hisor her property. Procedural theory is now dominant in English law, although not in the
3
Mobil Oil New Zealand Ltd v The Ship “Rangiora” (No 2)
[2000] 1 NZLR 82.
4
 Fournier v The Ship “Margaret Z”
[1999] 3 NZLR 111.
5
Grotmol, F., ‘The Master – Is He Still in Command?’ (1995) 145
 New Law Journal 
1534.
6
Wiswall, above n 1, at p 143.
7
Currie v M’Knight 
[1897] AC 97, at p 106 (PC).
8
In England, the Admiralty judge can still sit with nautical assessors (see CPR 61.13). However, in NewZealand, expert evidence on collision matters is the same as for civil proceedings generally.
9
Bigwood, R., (ed),
Legal Method in New Zealand,
Butterworths, Wellington, 2001, at p 36.
 
16 Hon. Robert Fisher QC
(2004) 18 MLAANZ Journal
United States. In
The Indian Grace (No 2)
10
it was held that, at least in the context of English procedural legislation unconcerned with liens,
11
issue estoppel precludes anaction
in rem
following an action
in personam
on the same cause of action. Lord Steyn,with whom the other Law Lords concurred, said at p 913:
The role of fictions in the development of the law has been likened to the use of scaffolding in the construction of a building. The scaffolding is necessary but after the building has been erected scaffolding serves only to obscure the building. Fortunately, thescaffolding can usually be removed with ease: Fuller,
 Legal Fictions
(1967) p70. Theidea that a ship can be a defendant in legal proceedings was always a fiction. But beforethe Judicature Acts this fiction helped to defend and enlarge Admiralty jurisdiction in theform of an action
in rem
. With the passing of the Judicature Acts that purpose waseffectively spent. That made possible the procedural changes which I have described. Thefiction was discarded.
Looking beyond fictions of that kind has practical implications for the way in whichthe law is developed. An example is the question whether shipboard personal injuryclaims fall within the damage maritime lien.
12
Traditionally, the requirement that thedamage be “done by” the ship was thought to lie at the heart of the damage maritimelien. To modern eyes this makes as much sense as the medieval practice of puttinganimals on trial for criminal behaviour. Much obscurity followed.Belatedly it was recognised that the damage maritime lien was aimed at the behaviour of humans, not ships. The purpose of the lien was to encourage humans to becareful about the way in which they navigated. Ships came into it only to the extent thatthey were the physical instruments through which the targeted human behaviour wasmanifested. They also happened to be available as an expeditious means of enforcingany judgment obtained. Ships were and are no more responsible for the human behindthe wheel than motor cars. But by then much damage had been done to the clarity andconsistency of the law relating to damage liens.
13
Contrary to the anthropomorphismmuch beloved by earlier admiralty lawyers, to qualify for a damage maritime lien thedamage in question must have been done by a human, not by a ship.
14
The danger of legal fictions is that they divert lawyers away from the balancing of rights betweenhuman beings in a just and rational manner.The decline in formalism has coincided with the rise of a purposive approach tounderstanding and applying the law. It is true that in admiralty law a purposiveapproach must be balanced against other considerations. One cannot overlook theinternational nature of admiralty law, the reciprocity upon which it depends, the case for international uniformity in the absence of pressing reasons to the contrary, and thecenturies of experience upon which admiralty law has been built. Above all, a purposive approach is possible only if the purposes which admiralty law is designed toserve have been identified, a topic to which I now turn.
General approach to purposes
Understanding the purposes of admiralty law is made no easier by the lack of any clear statements on the subject from Parliament.
The Admiralty Act1973
(NZ) contains no
10
[1998] AC 878 (HL) but not followed in
 Raukura Moana Fisheries Ltd v The Ship “Irina Zharkikh”
[2001]2 NZLR 801 (HC).
11
Section 34 of the
Civil Jurisdiction and Judgments Act 1982
(UK).
12
The “Margaret Z”
above n 4, at pp 124-125.
13
See discussion in part 4(c) of this paper infra
.
14
See further 
The “Margaret Z”
, above n 4, at pp 124-125.

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