ADMIRALTY LAW: WHAT IS IT NOT GOOD FOR?
..in cautious defence of history.
UCHE I. OKORIE*
“A significant historical pedigree is no automatic guarantee of worth… This appeal to historical pedigree is, therefore, more than a little misleading. It masks the reality that the modern admiralty jurisdiction is largely an early Victorian invention… The over-emphasis of history and tradition has led, in my view, to an unduly cautious approach to the jurisdiction‘s development in the light of modern circumstances, and a resistance to change, rationalisation and modernisation…” Assoc. Prof Paul Myburgh.
Introduction The amalgam of phrases that form the subject of our query has been raised in an interesting howbeit controversial paper by no less a personality than Associate Professor Paul Myburgh.1 Delivering a paper in honour of the life and work of Richard Cooper2, Myburgh queries the continued relevance of a separate head of admiralty jurisdiction under a four pronged attack on the justifications for its continued separation canvassed by various scholars based on historical pedigree, the assertion that ships are different, international uniformity, and what he terms the „fetishization‟ of ships.3
1 2 3
Learned Associate Professor of Law, University of Auckland. (Myburgh, 2009) Ibid p.22-37
At page 22 of his published lecture under the head „History‟; Myburgh opines quite authoritatively that „A significant historical pedigree is no automatic guarantee of worth.‟4 Further down the article he adumbrates „This appeal to historical pedigree is, therefore, more than a little misleading. It masks the reality that the modern admiralty jurisdiction is largely an early Victorian invention.‟5 He also asserts that ‘The over-emphasis of history and tradition has led, in my view, to an unduly cautious approach to the jurisdiction‘s development in the light of modern circumstances, and a resistance to change, rationalisation and modernisation.’6 The foregoing identified snippets taken as a whole constitutes the quintessence of our discourse. Myburgh‟s entire proposition is basically a pitch for the extinction of a „discrete institutional admiralty jurisdiction‟7 on the basis of a canvassed stock taking occasioned by the decision in the Indian Grace8 and the reintegration or realignment of the substantive subject-matter of admiralty jurisdiction with the broader theory and practice of the general civil jurisdiction, as a panacea for admiralty growth, development and continuing relevance to the realities of twenty-first century international commerce9 He makes a case that if the four major factors earlier identified are proven to be redundant, then we ought to do away with admiralty jurisdiction in the form that we know it.
4 5 6 7 8 9
Ibid p.22 Ibid p.23. Emphasis in bold mine Ibid p.24. Emphasis in bold mine Ibid p.20 Indian Grace (No. 2)  2 Lloyds L.R. 321 (Myburgh, 2009)p.38. This view though in a slightly different context had earlier been advanced by (Young, 2004)
This paper is limited in scope in that it is confined to the first head of the quartet that constitutes the core of Myburgh‟s postulate.10 It mainly seeks to join issues with the idea that a rejection of „the appeal to the grand historical heritage of admiralty law and its traditions‟11is the sole desiderata for the survival of admiralty law in the 21st century. In taking my position, I will attempt a preface by way of preliminary remarks that copious reference will be made to Myburgh‟s proposition as espoused in his article as it brilliantly encapsulates the reasoning of the other end of the spectrum which for the sole reason of convenience we would term „redundantist‟.12 As I lean towards the view overwhelmingly that history is not entirely irrelevant, I intend to take the opposite view. Having made these clarifications let me state without further ado that I disagree with what I perceive to be the meaning of the statement. I now proceed to give my reasons by way of a detailed analysis of the components of the statement that is the subject of our inquiry with a summation at the end13
Two reasons inform the author‟s decision to attempt a rebuttal under this head. First is the fact that the author was drawn to Professor Myburgh‟s article in the course of researching an allotted LLM in Maritime Law paper with a word limit dealing with this thematic preoccupation and more fundamentally because the author understands Prof Myburgh‟s entire postulate as depending on the veracity of all four factors he identified. If this interpretation is correct, it follows then that one is at liberty to rebut any prong of the quartet. A rebuttal of one means inevitably that Prof Myburgh‟s central postulate would not be sustainable. 11 (Myburgh, 2009)p.20.
This word is coined as an acknowledgment to the fact that Professor Myburgh does not call for an abolishment of
admiralty jurisdiction but rather a reintegration or at the very least realignment with „the broader theory and practice of the general civil jurisdiction‟.
Apart from the convenience that this approach entails, it is preferred because it will help to keep the component
in sight and allow for a rigorous scrutiny.
1. A significant historical pedigree is no automatic guarantee of worth…
„A significant historical pedigree is no automatic guarantee of worth.‟15 I consider this a verity even though no factual basis is given to support this general statement. But so also is the opposite view an equally compelling verity. In the first place, it is no automatic guarantee that it is worthless either. If anything, with the greatest respect to the learned Professor and „redundantists‟ in general, the statement recognises intrinsically that a significant historic pedigree is a guarantee of worth or at the very least usually an indication of worth. And I daresay this is true. Why? Taking a leaf from the unexpected quarters of tourism, it becomes immediately clear on an analysis of the process propellants of the industry that a key driver of the tourism industry is its ability to appeal to our sense of history. 16 This is true not only with tourism but other aspects of human experience as well. `Evolutionary psychologist Paul Bloom17 in his cerebral work „How Pleasure WorksThe New Science of Why We Like What We Like‟18 makes a compelling argument that we are all essentialists19one way or the other. Thus we are fascinated with the history of an object. We are enthralled by the places an object has been. It‟s pedigree. It‟s vintage.
(Myburgh, 2009)p.22. „First, a brief discussion of the appeal to history. This is problematic on a number of levels, particularly if
the argument is simply based, as it so often is, on the lengthy historical pedigree of admiralty itself – ‘things were ever thus’’.
ibid This is why people are prepared for instance to spend money in pursuit of the pleasure that history brings to visit Professor of Psychology and Cognitive Science at Yale University (Bloom, 2010) Essentialism is „A belief that things have a set of characteristics that make them what they are, and that the task of
the Versailles in France or the Taj Mahal in India and other historic sites. See note 17 post.
17 18 19
science and philosophy is their discovery and expression...‟ see (Oxford University Press., 2011)
Why do you think a Van Gogh20 or a Picasso21 or a Vermeer22 is highly priced and valued quite apart from what we perceive to be their sheer genius? Why do we hold unto that piece of old furniture that marks a watershed in our lives? Historical pedigree cannot be wished away by the wave of a hand or the flash of a pen. This is as true for tangible objects as it is for concepts and theories which are abstractions.23 Even when two objects fulfill the same purpose, most times history trumps. According to Bloom ‘the history is invisible and intangible, and in most cases there is no test that can ever distinguish the special objects from one that looks the same’24 Secondly the statement that „a significant historical pedigree is no automatic guarantee of worth’ when viewed in the light of Myburgh‟s ultimate destination which is the realignment of admiralty with the general civil jurisdiction, is a two edged sword cutting both ways. It does not help us much when we apply the same argument to the civil jurisdiction which is supposedly the magic potion that will heal admiralty‟s alleged lethargy. Put in another way and paraphrasing Myburgh, I would say that the significant historical pedigree of the general civil jurisdiction is no automatic guarantee of worth. If this is accepted as another verity then it becomes clear that the ultimate prescription of „redudantists‟ thinking is likely not the solution either.
20 21 22 23
See (Kimmelman, 1989) See (Michaud, 2010) See the online resources „The complete Vermeer‟ (Janson, 2011) An abstract concept like law recognizes this fact in many areas, for example human rights. How old is the Magna
Carta? (The National Archives and Records Administration)Signed in June 1215, that document is a direct ancestor of other revered documents like the Bill of Rights and the Universal Declaration of Human Rights. Another example of the core lessons in history acting as fodder for societal rebirth.
(Bloom, 2010) p.2-3.
Why move at all when one is bound to encounter the same thing elsewhere that precipitated the move in the first place? An Admiralty law that becomes ensconced in the general civil law must as of necessity assume the strengths and weaknesses of its host. One of the weaknesses that would have to be dealt with amongst others is the fact that Admiralty cases would not and cannot be decided in a vacuum, the peculiar history of the now victorious legal concepts under the general civil law must interact with the nature of admiralty claims and what is to guarantee that Admiralty will be better off? What is the guarantee that (again paraphrasing Myburgh25) Admiralty the unpopular schoolboy with the foreign accent (now even more pronounced as a result of centuries of refinement) who got beaten up behind the bike sheds by Coke and his Common Law henchman would not suffer a similar or even worse fate as he interacts with the entrenched and domiciled legal concepts offspring of the general civil jurisdiction nurtured by Coke et al? In fact if we acknowledge the ingrained role of the doctrine of stare decisis in English law, what is to guarantee that while ensconced in the embrace of the general civil jurisdiction that judges would see the need to deviate from established Admiralty premerger precedents in favour of cases decided on seemingly like concepts under the general civil jurisdiction? What in a nutshell guarantees anything? The only thing guaranteed is change. However the ultimate nature of the change, its ultimate burdens and incidence is as shrouded in mystery as a directionless and purposeless sea voyage.
As Prof Myburgh colourfully puts it at pages 23-24 (Myburgh, 2009) „Admiralty was always the unpopular
schoolboy with the foreign accent who got beaten up behind the bike sheds by Coke and his Common Law henchman.‟
Consequently in a nutshell while a significant historical pedigree may not be an automatic guarantee of worth, it is nevertheless significant and signposts the trajectory of the law. My hunch is that we need not look for automatic guarantees when we accept as the learned professor does26 with the greatest respect to Oliver Wendall Holmes that logic must at some point play a role. It was logic that made equity evolve to complement the common law.27 In the same vein, there exists a parallelism between Admiralty and general civil jurisdiction exemplified by the common law. This parallelism also guarantees that logic does also have a say in the development of Admiralty. With logic present, we are guaranteed that admiralty will get those intermittent doses28 of reformist injections that have preserved the anthropomorphic corpus of the law. If we concede the foregoing then a redundant historical pedigree is of no practical use both for the broader policy goals advocated by Myburgh and the mantra of historical redundancy. This is because logic can intervene as it has done in the evolution of Admiralty law in the past to shape the path of the future with Admiralty‟s historical pedigree as a guide lamp. As is easily discernible by even the most casual observer the attendant uncertainty, financial, psychological and jurisprudential costs of reintegration is such that it is really not worth the hassle.
This is evinced by his statement that „With all due respect to Oliver Wendell Holmes, the life of the law and its value cannot be See (Yntema, 1966 - 1967) The fact that it did and does get those doses are acknowledged by the learned Prof himself when he opines that
measured in experience alone; logic must enter into it at some point’ ibid at page 22.
„And, while mediaeval sea codes such as the Consolato del Mare and the Rôles d’Oleron may contain the germs of a couple of concepts that still endure in modern admiralty law, such as reward for salvage, the notion of general average and the concept of global limitation of liability, a reader is, hardly surprisingly, hard pressed to find much detail which mirrors or illuminates modern admiralty law.‟ P. 22-23 (Myburgh, 2009). The reason a reader is not surprisingly hard pressed to find much detail which mirrors or illuminates modern admiralty law is because in the supervening time that has ensued since then, admiralty law did evolve and grow as logic intervened to propel its growth.
2. ‘...and an appeal to the historical pedigree of admiralty can be more than a little misleading because it masks the reality that modern admiralty jurisdiction is largely an early Victorian invention...’ In a second breathe we stumble across a statement that seems inherently contradictory. This second statement cast unabashed aspersions on the historical pedigree of admiralty jurisdiction by asserting that it is misleading due to its early Victorian roots.29 The second statement though being an admission that historical pedigree often indicates worth, goes further to take a decidedly different approach by contesting the point of reckoning of the accrual of the historic pedigree of Admiralty law.
The object of this is an attempted demystification of the historical underpinnings of Admiralty law by a pushing up of the time chain to the Victorian era in order to dilute the „...appeal to grand historical tradition.‟30 The learned Professor in articulating this scheme proselytised that „more importantly, the appeal to admiralty‘s ancient historical pedigree is often to an ersatz, sanitised and distorted historical narrative that does not stand up to closer scrutiny.‟
„The Victorian era of the British history was the period of Queen Victoria's reign from 20 June 1837 until her
death on 22 January 1901. It was a long period of peace, prosperity, refined sensibilities and national self-confidence. Some scholars date the beginning of the period in terms of sensibilities and political concerns to the passage of the Reform Act 1832.‟ See Wikipedia the Free Encyclopaedia, http://en.wikipedia.org/wiki/Victorian_era#cite_ref-0 and Swisher, Clarice, ed. Victorian England (2000).
(Myburgh, 2009) at p.23. At p.22 Myburgh relies on footnote 21 that cites (Black, 1975), and asserts that „in their
introductory section delightfully entitled ‘The Past — Or, The Rhodian Law and All That’, they conclude that a recognition of the names of the medieval sea-codes ‘is all that is really needed even for ornamental purposes by the compleat admiralty proctor. … They could hardly state much living law for the concerns of modern shipping.‟
He goes on to offer an explanation by adumbrating that „the dominant view amongst classical philological scholars has long been that the much vaunted Rhodian Sea Law was either a figment of Justinian‘s propagandists‘imagination, or, at best, a very free neo-Classical interpolation‟31 However Neill Hutton32 asserts that „the oldest surviving body of law that contains references to maritime law is the Code of Hammurabi, which is estimated to have originated between 2000 and 1600 B.C.‟33 In the unlikely event that one were to become giddy with disbelief of the share antiquity of this date, surely Hutton relying on Fredric Sanborn, a scholar who wrote in 193034 opining that „In 533 A.D., Emperor Justinian published a Digest of law, which contained comprehensive provisions dealing with maritime commerce,‟35points to the irresistible conclusion that Admiralty had a Roman pedigree.
Assuming however but not conceding that these scholars and their ilk who take the position that Admiralty law predates the Victorian era hold their views per incuriam, Prof Myburgh with the utmost respect leaves us no choice but to disbelieve Admiralty‟s Victorian origins when he asserts in his article that:
(Myburgh, 2009)at p.22. The philological scholars cited (Gamboa); (Bogojevic-Gluscevic, 2005); (Black, 1975); and (Hutton)p.3. Hutton credits as his source (Cumming, 1992); (Schoenbaum, 2001) The emphasis in bold are mine. (Sanborn, 1930) (Hutton)p.2. Again emphasis in bold mine.
32 33 34 35
„Although the foundations of admiralty enforcement were laid down much earlier than that, the fourteenth century Admiral, a petty criminal enforcement official with a lucrative list of perquisites or ‘perks‘, has about as much to do with modern admiralty law as the Spanish Inquisition has to do with modern jury trials.‟36
The words in bold is an admission that the historical pedigree of Admiralty dates back prior to the early 19th Century Victorian era. The use of the word modern admiralty law presupposes that there exists an ancient admiralty jurisdiction, although for the life of me and in relation to our discourse on historical pedigree I do not understand the basis or rationale of the dichotomy.
The concluding part of the sentence that seeks to summarily dismiss the fourteenth century Admiral as having any relevance to Admiralty law is a stark attempt to disregard the role of evolutionary change in the scheme of things.
But if we are to imbibe the habit of questioning the historical pedigree of a concept simply on account of a change of form as a result of evolution then it follows that this same argument mutatis mutandi can be employed to belittle the general civil jurisdiction of the common law since the Ecclesiastic judges of yore has as much to do with the modern common law as an ancient juju priest has to do with modern affidavits.
Pray how many common law concepts in this modern era still adorn the pristine garb of its ancient conception without a metamorphosis of sorts?
Thus I would venture to say to the „redundantists‟ that it really does not matter where the starting point of a historical sojourn lies, or the transmutation that comes with age what is more relevant is that the history of a concept as an integral part of its evolutionary path be kept in sight as it sheds considerable light on the nature of that concept and is thus a suitable handle for reform.
3. Moreover, an over-emphasis of history and tradition can lead to ‘an unduly cautious approach to the development of the admiralty jurisdiction in current circumstances and, in particular, a resistance to change, rationalisation and modernization.’37 The common law is rooted in tradition.38 This tradition manifested in such concepts as stare decisis,39 which is really in retrospection a tribute to history. The reality that a court in determining a matter is constrained to follow past decisions on similar facts of a superior court of record reveals that historical pedigree was and is a huge consideration in the dispensation of justice. This was in a nutshell considering the pervasiveness of the doctrine and the limited situations when common law judges could deviate from it40 more or less an ode to history and tradition!
(Myburgh, 2009)p.24. See (Woodbine, 1968); (Güterbock, 1866). Bracton‟s original book titled De Legibus et Consuetudinibus Angliae (On
the Laws and Customs of England) was heavily influenced by the Roman concepts of action in rem and in personam and provides a rich narrative of English legal tradition.
“Stare Decisis et Non Queita Movere”, stand by what has been decided and do not unsettle the established. See Historical models have been recently reiterated by Fernandez and Ponzetto when they assert
“We have proposed instead a legal realist model in which distinguishing can be used to overrule, but is kept in check by an increasing effort cost of legal innovation. Thus, case law develops gradually, and reflects the preferences of all past judges as well as the instant one. Its evolution converges toward greater efficiency and predictability, according to the intuitions of Burke, Cardozo, Leoni, and Posner”. See generally (Ponzetto, 2010)p.16.
Many concepts and doctrines41 emanating a couple of centuries ago have also become concretized in English law and form part of the historical antecedence of the common law. The pertinent question is whether these concepts have remained resistant to change, rationalization and modernisation? The answer is an obvious No. The reason why the common law has trudged along despite its noticeable love for history and tradition is that there exists in the common law inherent mechanisms that have proven efficient in shaping the direction of the law. The interplay of judicial ability to distinguish a precedent and law reform to meet the yearnings and aspirations of society serve to keep the legal system free of legal anachronistic debris. No one would suggest for instance that because of the relative antiquity of the general civil jurisdiction of the common law, that it should be jettisoned or perhaps aligned with an earlier system of law which is what the attack on the basis of history ultimately suggests. If the common law despite its tendentious links to history and tradition could always find ways of renewing itself through societal dialectics and judicial and parliamentary activism, then so also can Admiralty. The same elements present in the general civil jurisdiction that has made it an alluring bride in the eyes of certain commentators are equally present with the same force and intensity in the admiralty jurisdiction as presently constituted. This is the simple reason why Lord Steyn could depart from established thinking in the Indian Grace (No. 2)42 to decide an Admiralty matter that has provoked a series of debate including Myburgh‟s postulate.
Some of these concepts include the principles of contracts, torts and even the maxims of equity Cited earlier.
Myburgh warns of the dire consequences of an over emphasis on the history and tradition of Admiralty law by remarking that: „An exaggeration of the importance of historical tradition has perhaps also informed an overly cautious modern judicial approach to the development of new maritime liens, and a sparing use of inherent jurisdiction in the admiralty context. This has resulted in a statutory jurisdiction that, although originally expressed in open-ended terms, became effectively codified — some might even say calcified — a century ago, and that is increasingly losing its flexibility and commercial relevance.‟43 Rather than an emphasis on historical tradition everyone familiar with the nature of a maritime lien would perhaps understand why judges are reluctant to develop new maritime liens. In any event the pertinent factor here is judicial attitudes. Judicial attitudes lie at the core of legal interpretation under whatever system of law. A majority of judges are by their nature conservative and in the common law system, stare decisis conspires to curb any excessive judicial activism. In the light of these facts, what is the guarantee that the same judges sitting over the same cases with the same facts in the event of a realignment of admiralty law with the general civil claim would not exhibit the same judicial attitude and restraint towards expanding the list of maritime liens for example? What is the guarantee that admiralty cases would not suffer „calcification‟ as judicial attitudes concretizes the law over time?
At page 24
Conclusion In conclusion and with the most revered apologies to Professor Myburgh I do not believe that Admiralty law needs to escape the claustrophobic confines of its history.44 Myburgh‟s attempt to locate the historical reach of admiralty law in the Victorian era if it is to be taken seriously significantly un-clutters it for it cuts away the notorious „beating‟ Admiralty received from „Coke and his common law henchmen’. Therefore a charge of claustrophobia can hardly be sustained. Thus the issue of an escape is accordingly non sequitur. However from the historical decks of Admiralty law, one area where I happily find common ground with the distinguished Professor and his equally enlightened group of „redundantists‟ is the fact that: ‘admiralty scholars and judges should adopt a more critical and contextual approach towards historical admiralty precedents, given the dramatic social, commercial and economic changes that have occurred over the last two centuries’45
At page 25 Ibid.
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