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Report No. 151

Section II

Chapter 3

Historical Development of Admiralty Jurisdiction in England

3.1. Admiralty Law is a branch of jurisprudence regulating maritime matters of civil and criminal nature and it contemplates a court or tribunal administering maritime law by a procedure peculiar to it. This jurisdiction finds an ultimate source in the initial law of sea which was the law of commercial nations generally. England, being an island, has all along been engaged in commercial business through the sea and in that process the admiralty law developed. Since Indian admiralty jurisdiction is founded on the English law, it would be proper to briefly refer to the development of admiralty jurisdiction in that country.

3.2. During Medieval period in England, Lord High Admiral and other Admirals appointed for different portions of the sea around the British Isles possessed disciplinary powers to cover vessels under their command; in addition, they were in a sense functioning as Sea Magistrates. They were only maritime officials having both authority and power.

They determined disputes according to the custom, usage and equity. Generally, they determined disputes in regard to capture of enemy property on sea regarded as "Prize". Finally, there emerged from among these disputes a personage who, from being deputy of the Lord High Admiral, became the appointed judge of the English Court of Admiralty, exercising criminal jurisdiction, who in times of war fulfilled duties as a judge of the Prize Court and exercised jurisdiction in certain Maritime causes.

These two jurisdictions eventually became quite separate of the Lord High Admiral and his fellows. This, in briefs, is an epitome of the genesis of the High Court of Admiralty Jurisdiction which struggled on for centuries side by side with the Common Law and Chancery Courts of England, the one seeking to enlarge and the other to limit its jurisdiction.

3.3. This rivalry between the jurisdiction of the High Court of Admiralty and the Common Law Courts of England was eventually taken note of by the British Parliament. In 1389, it passed an Act [13 Ric. 1 (1389)] pertaining to the jurisdiction of the Admiral and the Deputy and also prescribing the limits of the jurisdiction of the High Court of Admiralty. The Act laid down that the Admirals and their deputies shall not meddle of anything done within the realm, but only of a thing done upon the sea. In spite of legislation forbidding the High Court of Admiralty from meddling in things not wholly and exclusively done upon the sea, the Admiralty Court continued to encroach upon the forbidden area of jurisdiction.

The British Parliament passed another Statute (Jurisdiction of the Admiral Act, 1391), which clarified that of all manner of contracts, pleas, and quarrels and all other things arising within the bodies of the counties as well by water, and also wreck of the sea, the Admiral's Court shall have no manner of cognizance, power, nor jurisdiction, instead all such manner of contracts, pleas and quarrels and all other things arising within the bodies of Counties, as well by land as by water, as afore, and also wreck of the sea, shall be tried, determined, discussed and remedied by the laws of the land, and not before nor by the Admiral nor his lieutenant.

This Act made it clear that the jurisdiction of the High Court of Admiralty was confined to things done upon the high seas and it had absolutely no jurisdiction to deal with things arising within the body of a county. However, this enactment failed to bring avoidance of the conflict of jurisdiction.

1. This has been traced by Kochu-Thommen, J. in his scholarly judgment in M.V. Elizabeth. For further treatment, reference can be made to Holdsworth A History of English Law, Vols. 1, 5 and 8; Admiralty Practice, 5th Edn., Marsden Select Pleas of the Court of Admiralty, Vols. I & II, and Law and Custom of the Sea, Vol. I & II; Benedict on Admiralty, 6th Edn., Vol. I; and Gilmore & Black Law of Admiralty, 1957.

3.4. In 1648 an Ordinance was issued prescribing the jurisdiction of the Court of Admiralty, but it was set aside and thereafter the High Court of Admiralty lost is importance for nearly two centuries until, in the eighteenth century, the learning and ability of Lord Stowell raised the Court to a position of the highest importance'.

In 1840 the British Parliament passed the Admiralty Court Act, 1840 (3 & 4 Vict., C. 65 hereafter referred to as the 1840 Act) to improve the practice and extend the jurisdiction of the High Court of Admiralty. A significant feature of this Act was that the High Court of Admiralty could also take cognizance of the things arising within the body of the county in the same manner as the Common Law Courts. The 1840 Act inter alia provided for claims in respect of damage received by a ship.

3.5. In 1861 the British Parliament enacted the Indian Admiralty Court Act of 1861. This Act made an effort to remove the conflict of jurisdiction and to enlarge the jurisdiction of the High Court of Admiralty. One of the Significant changes introduced by the 1861 Act was that the High Court of Admiralty, instead of confining its jurisdiction only to cases of 'damage received by a ship', could now entertain claims in regard to "damages done by a ship".

It is important to note that the jurisdiction of the High Court of Admiralty and the Common Law and Chancery Courts in respect of "damage received by a ship" were concurrent under the 1840 Act, but the jurisdiction of the High Court of Admiralty in regard to "damage done by a ship" under the 1861 Act was exclusive.

The 1861 Act further provided that in cases of damage done by a ship on the high seas, the aggrieved party had the choice to move the High Court of Admiralty either for an action in rem or for an action in personam. Another feature of this Act was that, by section 6, it empowered the Admiralty Court to assume jurisdiction over foreign ships in respect of claims to cargo carried into any part in England or Wales but it did not apply to outward cargo.

3.6. The Judicature Act of 1873, which came into force in 1875, merged the High Court of Admiralty with the High Court of Justice, causing a fusion of Admiralty Law, Common law and Equity. The provisions of the 1861 Act limiting jurisdiction of the Admiralty Court to the claims in respect of inward cargo was discarded by the Administration of justice Act, 1920. This Act extended the jurisdiction of the High Court to:

(a) any claim arising out of an agreement relating to the use or hire of a ship;

(b) any claim relating to the carriage of goods in any ship; and

(c) any claim in tort in respect of goods carried in any ship.

3.7. The 1861 Act and the subsequent enactments were consolidated by the Supreme Court of judicature (Consolidation) Act, 1925. This Act vested the Admiralty jurisdiction in all divisions of the High Court empowering the Court to entertain, apart from actions in rem, any claim in personam which could be brought in any other divisions of the High Court. By the Administration of justice Act, 1956, the Admiralty Jurisdiction was further widened and redefined.

3.7. The 1925 Act was superseded by the Supreme Court Act of 1981. The Parliament enacted the 1981 Act to consolidate with amendments the Supreme Court Act of Judicature and other enactments and to repeal certain obsolete and unnecessary enactments. Section 20 of the Act defines admiralty jurisdiction of the High Court and sections 21 and 22 deal with the procedure and mode and side of admiralty jurisdiction. Section 24 defines various expressions and phrases commonly used in maritime and admiralty jurisdiction.

The provisions contained in that Act have made significant changes enlarging the High Court's jurisdiction in admiralty matters. It is not necessary to discuss in detail the provisions in sections 20, 21 and 22 but it is important to note that the position that has now finally emerged in England is that the jurisdiction of the High Court is vested in all Divisions, although in practice, admiralty actions are assigned to the Queen's Bench Division and taken up by the Admiralty Court.

It also ensures that the usual requirements of an action, in personam, viz. the habitual residence or a place of business of the defendant or the cause of action having a nexus with England and Wales or a connected matter in the English High Court or the submission of the defendant to the jurisdiction of that Court are not applicable to a proceeding commenced as admiralty action in rem.

The law as it stands at present extends the right to proceed in rem in many claims which do not give rise to a maritime lien. Similarly, the admiralty jurisdiction of the High Court will now in all causes be invoked by an action in personam, although the exercise of jurisdiction is inhibited by the operation of rules of court relating to service of proceedings within jurisdiction.

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