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Report No. 151

Chapter 2

General Background

2.1. The term 'admiralty' and 'maritime' law have been regarded as almost synonymous in the English speaking world of merchant shipping, particularly, in the context of what prevails in the United Kingdom and the United States. However, maritime law stands for wider and more descriptive reference whereas "admiralty" refers to the law administered in Courts. In its origin, maritime law developed out of the conduct of sea transport which is as old as human civilization itself. The ship has been described as the last relic of barbarism and the first relic of civilization.

Long distance transport and commerce in general have come a long way from the earliest times till today, and admiralty jurisdiction depends for its existence on whether or not the cause involved is an admiralty or maritime matter. Basically, the special jurisdiction has a maritime purpose and is different from the common law. It has a strong internal aspect, but it may undergo independent changes in several countries. Certain features exist in all countries that have admiralty law, and such inter-national features are given serious consideration by ordinary courts.

2.2. Throughout the world, the 'admiralty jurisprudence' system was brought by British settlers along with common law and equity, and courts for the administration of the maritime law were commissioned in almost all the colonies. These admiralty courts continued to exercise the power conferred on them until replaced by the suitable legislation of the country concerned. There is, however, no statutory definition of admiralty jurisdiction, and difficulties arise, if any attempt is made to define its exact limits. The scope of admiralty jurisdiction is limited under classical English Law.

2.3. In India, Admiralty Jurisdiction is an unfamiliar branch of jurisprudence. Even lawyers and judges are not familiar with the technicalities of this branch of law. Though India has been carrying on maritime trade since long, but unfortunately law relating to admiralty jurisdiction has not developed. As already stated, India has been following the British Admiralty Laws and the Indian Courts' jurisdiction was also regulated by the laws made by the British Parliament. Since the Admiralty Jurisdiction is founded on the British Admiralty laws, it would he necessary and proper to have a resume of the origin and history of Admiralty Jurisdiction in England.

2.4. The origin of the Admiralty Jurisdiction is traced succinctly in Halsbury's Law of England1. According to which, Admiralty jurisprudence, even in England, is as unfamiliar branch of jurisprudence although jurisdiction of the Admiralty there is of ancient origin. As a result of possessing criminal jurisdiction, the Court of the Lord High Admiral began to hear all disputes in civil as well as criminal matters connected with the sea and gradually began to encroach upon the jurisdiction of the common law courts in matters arising in inland tidal waters, in consequence of which two statutes were passed in the reign of Richard II confining the jurisdiction of the admirals and their deputies to things done upon the sea and in the mainstream of great rivers.

The Criminal jurisdiction of the Admiralty, as adjusted by these statutes continued until 1537, when it was, to a great extent, transferred to the Commissioners of over and terminer under the Great Seal, of whom one was the judge of the Admiralty Court2. The Civil jurisdiction of the Admiralty Court continued within the limits laid down by the statutes of Richard II3, but its exercise involved the Admiralty Court in a long struggle with the superior courts of common law.

The Admiralty Court asserted the highest and fullest jurisdiction over every thing which might happen upon the high seas, but it was obliged to give way to the common law courts and slowly ceased to exercise jurisdiction to the full extent which it had formerly claimed. Nevertheless, in the reign of William IV, it still retained a curtailed jurisdiction which included a number of important subjects like collisions and tortious acts committed on the high seas, bottomry, wages, etc. This position continued till the Admiralty Court Act, 1840 which was passed "to extend the jurisdiction and improve the practice of the High Court of Admiralty" in England.

This was the first of a series of Acts which enlarged or defined the jurisdiction, the latest of which is the Supreme Court Act, 1981 In the last hundred years, the English Maritime Law, though developed in separate courts and has continued to be greatly influenced by changes in concepts of the common law, and in regard to today as constituting a system of law entirely separate from the general law may lead to error. In modern international law, it has been recognised that the jurisdiction of the Admiralty Court extends both to foreign ships on high seas as well as over injurious acts done on the high seas.4

In other words, the admiralty jurisdiction of the High Court now extends to all ships or aircrafts whether registered or not and wherever the residence or domicile, of their owners may be, and in relation to all claims, wheresoever arising. However, the extent of jurisdiction is subject to rules governing the mode of exercise of jurisdiction 5. Generally, the jurisdiction of the court is also restricted in collision and other similar cases where the action is in personam.... The international nature of maritime affairs and the right to proceed in rem readily produced conflicts of jurisdiction and disputes as to the forum in which claims should be heard.6

1. Halsbury's Laws of England, Vol. I, 14th Edn., (Re-issue), Paras. 301-304.

2. Offence at Sea Act, 1536 (repealed).

3. Admiralty Jurisdiction Act, 1391 (since repealed).

4. Exception is the ships of foreign sovereigns: Halsbury's Law of England, 4 Edn., (Re-issue), para. 304.

5. This may be by statute such as the Supreme Court Act, 1981 (U.K.) or by International Conventions such as those relating to the "Arrest of sea-going Ships" or "Rules concerning Civil Jurisdiction in Matters of Collision".

6. Sea Civil Court Manual, 6th Edn., pp. 874-881.

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