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,
and the circumstances in which shipboard personalinjury accidents fall within the scope of the damage maritime lien.
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.
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.
Another example is that growth in the number, size and speed of ships in the late 19
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.
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,
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.
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
against the ship itself. On this rationale, concurrent
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
is really anindirect action against the person or persons who would be liable
. 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
Mobil Oil New Zealand Ltd v The Ship “Rangiora” (No 2)
 1 NZLR 82.
Fournier v The Ship “Margaret Z”
 3 NZLR 111.
Grotmol, F., ‘The Master – Is He Still in Command?’ (1995) 145
New Law Journal
Wiswall, above n 1, at p 143.
Currie v M’Knight
 AC 97, at p 106 (PC).
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.
Bigwood, R., (ed),
Legal Method in New Zealand,
Butterworths, Wellington, 2001, at p 36.