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Maritime Law or Admiralty Law

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    Maritime Law or Admiralty Law

    Definition:

    Maritime law, also known as admiralty law, is a body of laws, conventions, and treaties that govern private maritime business and other nautical matters, such as shipping or offenses occurring on open water. International rules, governing the use of the oceans and seas, are known as the Law of the Sea.

    Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties.

    Admiralty law may be 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 the maritime relationships between nations. The United Nations Convention on the Law of the Sea has been adopted by 167 countries and the European Union, and disputes are resolved at the International Tribunal for the Law of the Sea (ITLOS) in Hamburg.

    Key features of Maritime law:

    1. Maritime law governs private maritime questions, disputes, or offenses and other nautical matters.
    2. In most developed countries, the maritime law follows a separate code and is an independent jurisdiction from national laws.
    3. The International Maritime Organization (IMO) ensures that existing international maritime conventions are kept up to date and develops new agreements when the need arises.

    History of maritime law:

    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 (Nomos Rhodion Nautikos), 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 Consulate of the Sea or the Hanseatic League. In southern Italy the Ordinamenta et consuetudo maris (1063) at Trani and the Amalfian Laws were in effect from an early date.

    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.[2]

    A leading sponsor of admiralty law in Europe was the French Queen Eleanor of Aquitaine. Eleanor (sometimes known as "Eleanor of Guyenne”) had learned about admiralty law whilst on a 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". Sometime later, while she was in London acting as regent for her son, King Richard the Lionheart, Eleanor instituted admiralty law into England as well.

    In England, a special Admiralty Court handles all admiralty cases. Despite early reliance upon civil law concepts derived from the Corpus Juris Civilis of 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 industrial revolution 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 Acts of 1873-1875 abolished the Admiralty Court as such, and it became conflated in the new "Probate, Divorce & 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 QBD sitting to hear nautical cases. The Senior Courts Act 1981 then clarified the "admiralty jurisdiction of the High Court", so England once again has 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 in the American Colonies. This power has been awarded because the Stamp Act was unpopular in America, so that a colonial jury would be unlikely to convict any colonist of its violation. However, since English admiralty courts have never had trial by jury, a colonist charged with breaching the Stamp Act could be more easily convicted by the Crown.

    Admiralty law gradually became part of American Law 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. Those included are Alexander Hamilton in New York and John Adams in Massachusetts.

    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. 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 bench.

    Understanding Maritime Law:

    In most developed nations, maritime law follows a separate code and is an independent jurisdiction from national laws. The United Nations (UN), through the International Maritime Organization (IMO), has issued numerous conventions that can be enforced by the navies and coast guards of countries that have signed the treaty outlining these rules. Maritime law governs many of the insurance claims relating to ships and cargo; civil matters between ship owners, seamen, and passengers; and piracy.

    Additionally, maritime law regulates registration, license, and inspection procedures for ships and shipping contracts; maritime insurance; and the carriage of goods and passengers.

    The IMO (established in 1948 as the Inter-Governmental Maritime Consultative Organization, and coming into force in 1958) is responsible for ensuring that existing international maritime conventions are kept up to date, as well as developing new agreements as and when the need arises. 

    Today, there are dozens of conventions regulating all aspects of maritime commerce and transport. The IMO names three conventions as its core:

    1. The International Convention for the Safety of Life at Sea
    2. The International Convention for the Prevention of Pollution from Ships
    3. The International Convention on Standards of Training, Certification, and Watch keeping for Seafarers

    On its website, the IMO has a complete list of existing conventions, historical amendments, and explanatory notes.

    The governments of the 174 IMO member states are responsible for the implementation of IMO conventions for ships registered in their nation. Local governments enforce the provisions of IMO conventions as far as their ships are concerned and set the penalties for infringements. In some cases, ships must carry certificates onboard to show that they have been inspected and have met the required standards.

    Special Considerations:

     

    The country of registration determines a ship's nationality. For most ships, the national registry is the country where the owners live and operate their business.

    Ship owners will often register their ships in countries that allow foreign registration. Called "flags of convenience," the foreign registration is useful for tax planning and to take advantage of lenient local laws. Two examples of "flags of convenience" countries are Panama and Bermuda.

    Maintenance and cure:

    The doctrine of maintenance and cure is rooted in Article VI of the Rolls of Oléron promulgated in about 1160 A.D. The obligation to "cure" requires a shipowner to provide medical care free of charge to a seaman 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 that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications.

    The obligation of "maintenance" requires the ship-owner 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 ship-owner to recover maintenance and cure may also recover his attorney’s fees. Vaughan v. Atkinson, 369 U.S. 527 (1962). If a ship owner’s breach of its obligation to provide maintenance and cure is willful and wanton, the ship-owner may be subject to punitive damages. See Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)(J. Thomas).

    Personal injuries to passengers:

    Ship-owners owe a duty of reasonable care to passengers. Consequently, passengers who are injured aboard ships may bring suit as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the ship-owner was negligent. While personal injury cases must generally be pursued within three years, suits against cruise lines may need to be brought within one year because of limitations contained in the passenger ticket. Notice requirements in the ticket may require a formal notice to be brought within six months of the injury. Most U.S. cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami or Seattle.

    In England, the 1954 case of Adler v Dickson (The Himalaya) [1954] allowed a shipping line to escape liability when a bosun's negligence resulted in a passenger being injured. Since then, the Unfair Contract Terms Act 1977 has made it unlawful to exclude liability for death or personal injury caused by one's negligence. (Since then, however, the so-called "Himalaya clause" has become a useful way for a contractor to pass on the protection of a limitation clause to his employees, agents and third-party contractors).

    Maritime liens and mortgages:

    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. In the United States, an action to enforce a lien against a U.S. ship must be brought in federal court and cannot be done in state court, except for under the reverse-Erie doctrine whereby state courts can apply federal law.

    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 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.

    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 "Lloyd's 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 court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.

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