Chapter 1

Introduction

Historical Origins

1.1 Today the Admiralty Court is physically located in a modern courtroom alongside other courts,¹ and is simply part of the Queen’s Bench Division of the High Court. However, the Admiralty Court has a distinct and unique historical origin. The emergence of the Admiralty Court as a distinct jurisdiction has been traced to the period between the years 1340 and 1357.² It is thought to have come into being because of difficulties experienced by domestic courts in dealing with international piracy claims.³ The practice and procedure of the Admiralty Court is not founded on common law principles but on civil law concepts as developed and adapted by the civilian practitioners of the College of Advocates and Doctors of Law.⁴ It was not until 1859 that common law barristers and solicitors were even permitted to represent parties to disputes in the Admiralty Court.⁵ Prior to 1859, the Admiralty Court had been the exclusive preserve of the civilian practitioners (called proctors and advocates to distinguish themselves from the solicitors and barristers of the common law courts) who were members of the College of Advocates and Doctors of Law (usually referred to as Doctors’ Commons).⁶ It was only after 1861⁷ that it became clear that the Admiralty Court was a court of record.⁸ Accounts of the early history of the Court are to be found in various sources,⁹ and a good general overview of the history of the Admiralty Court is set out in the Introduction to the 5th edition of Roscoe’s Admiralty Jurisdiction and Practice.¹⁰ A detailed account of the development of Admiralty jurisdiction and practice after 1800 (a crucial period in the development of the Court) is contained in Dr Wiswall’s book of that name.¹¹ The present work is, however, concerned only with Admiralty jurisdiction and practice at the present time.

The Present

The Admiralty Court

1.2 Although section 5(5) of the Senior Courts Act 1981¹² provides that the whole jurisdiction of the High Court belongs to all divisions alike, and section 4(3) provides that all the judges of the High Court have equal power authority and jurisdiction, section 6(1)(b) of the Act provides that there be constituted as part of the Queen’s Bench Division an Admiralty Court, and further provides by subsection (2) that the judges of that court are to be such of the puisne judges as the Lord Chancellor shall nominate.¹³ Most Admiralty actions are tried by the Admiralty Judge, sitting in London.

1.3 Modern Admiralty actions are generally conducted in a similar manner to Commercial Court actions and, in common with such actions, Admiralty business is conducted out of the Admiralty and Commercial Registry situated in Room E.B.13, Royal Courts of Justice, Strand, London WC2A 2LL, and not out of the Central Office. From October 2011, the Registry will be located in The Rolls Building, Fetter Lane, London EC4A 1NL.

1.4 Admiralty claims are subject to CPR Part 61 (Admiralty Claims) and its associated Practice Direction. They respectively provide for CPR Part 58 (Commercial Court) and its associated Practice Direction, to apply except where inconsistent.¹⁴ The Courts also share an official guide to procedure: The Admiralty & Commercial Courts Guide.¹⁵

1.5 All claims in the Admiralty Court are ” multi-track” claims.¹⁶ Certain claims are required to be brought in the Admiralty Court¹⁷ these are:

• (i) a claim in rem;
  
• (ii) a claim for damage done by a ship;
  
• (iii) a claim concerning the ownership of a ship¹⁸;
  
• (iv) any claim under the Merchant Shipping Act 1995;
  
• (v) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment;
  
• (vi) any claim for loss of life or personal injury sustained in consequence of the wrongful act, neglect or default of
  
  
  
  • (a) the owners, charterers, or persons in possession or control of the ship; or
    
  • (b) the master or crew of a ship or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible;
  
  
• (vii) any claim by a master or member of a crew for wages;
  
• (viii) any claim in the nature of towage;
  
• (ix) any claim in the nature of pilotage;
  
• (x) any collision claim;
  
• (xi) any limitation claim;
  
• (xii) any salvage claim.

The use of District Registries

1.6 Although not provided for anywhere in the Practice Direction, an Admiralty claim may still be issued out of a High Court District Registry as a convenient “post box”, but it will immediately be sent to the Admiralty and Commercial Registry in London for processing. After the claim form has been issued the Admiralty Registrar will issue a direction in writing stating whether the claim should remain in the Admiralty Court or be transferred to another court and, if it remains, whether it should be dealt with by the Registrar or the Judge and whether it should be tried in London or elsewhere.¹⁹ In so deciding these questions the Registrar will have regard to the nature of the issues, the sums in dispute and the matters relevant to track allocation under CPR Part 26.8 in so far as they are applicable.²⁰

Pre-action applications

1.7 Pre-action applications (e.g. for disclosure) prior to the issue of proceedings as an Admiralty claim may also be issued out of a High Court District Registry. However, if this is done the application ought to be considered first on paper by the Admiralty Registrar. The Registrar will decide whether the application should be heard in the District Registry by a local (non-Admiralty) judge, by an Admiralty Judge or by the Admiralty Registrar (whether in London or elsewhere). If this procedure is not followed, there is a danger that a district judge faced with a pre-action application in respect of an Admiralty claim will decline to adjudicate on the matter and refer the file to the Admiralty Registrar for directions causing delay and wasted costs.²¹

Subject matter jurisdiction

1.8 The subject-matter over which the Admiralty Court has jurisdiction is as follows:

Under section 20(1)(a) of the SCA 1981²²

1.9

• (a) Any claim to the possession or ownership of a ship or to the ownership of any share therein.
  
• (b) Any question arising between the co-owners of a ship as to possession employment or earnings of that ship.
  
• (c) Any claim in respect of a mortgage of or a charge on a ship or any share therein.²³
  
• (d) Any claim for damage received by a ship.
  
• (e) Any claim for damage done by a ship.²⁴
  
• (f) Any claim for loss of life or personal injury sustained in consequence of any defect in a ship, her apparel or equipment, or in consequence of the wrongful act, neglect or default of
  
  
  
  • (i) the owners, charterers or persons in possession or control of a ship; or
    
  • 
    

    (ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible,

    
    

    being an act, neglect or default in the navigation or management of a ship, in the loading, carriage or discharge of goods on, in or from a ship, or in the embarkation of persons on, in or from the ship.

  
  
• (g) Any claim for loss of or damage to goods carried in a ship.
  
• (h) Any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.
  
• (j) Any claim—
  
  
  
  • (i) under the Salvage Convention 1989²⁵;
    
  • (ii) under any contract²⁶ for or in relation to salvage services²⁷; or
    
  • (iii) in the nature of salvage not falling within (i) or (ii) above; or any corresponding claim in connection with an aircraft.²⁸
  
  
• (k) Any claim in the nature of towage in respect of a ship or an aircraft.
  
• (l) Any claim in the nature of pilotage in respect of a ship or an aircraft.
  
• (m) Any claim in respect of goods or materials supplied to a ship for her operation or maintenance.
  
• (n) Any claim in respect of the construction, repair or equipment of a ship or dock charges or dues.
  
• (o) Any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages).
  
• (p) Any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship.
  
• (q) Any claim arising out of an act which is or is claimed to be a general average act.
  
• (r) Any claim arising out of bottomry.
  
• (s) Any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried or have attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty.

Under section 20(1)(b) of the SCA 1981²⁹

1.10

• (a) Any application to the High Court under the Merchant Shipping Act 1995.
  
• (b) Any action to enforce a claim for damage, loss of life or personal injury arising out of
  
  
  
  • (i) a collision between ships; or
    
  • (ii) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
    
  • (iii) non-compliance on the part of one or more of two or more ships, with the collision regulations.
  
  
• (c) Any action by shipowners or other persons under the Merchant Shipping Act 1995 for the limitation of the amount of their liability in connection with a ship or other property.

Under section 20(1)(c) of the SCA 1981

1.11 Any other Admiralty jurisdiction which it had immediately before the commencement of this Act.

Under section 20(1)(d) of the SCA 1981

1.12 Any jurisdiction connected with ships or aircraft which is vested in the High Court apart from that section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court.

1.13 These heads of jurisdiction, together with the practice of the Court are considered in more detail in the following chapters.

County courts

1.14 In the first edition of this book it was suggested that ‘‘ the county court ought really to carry a government health warning, particularly as regards Admiralty jurisdiction in rem“³⁰ and it was suggested that “the moral is litigate in the county court at your peril” .³¹ In fact the government has gone one better and abolished the Admiralty jurisdiction of the county court altogether with effect from 26 April 1999.³² The abolition of the former Admiralty Jurisdiction of the county courts has, however, not solved all the problems associated with litigating maritime claims in the county court. Unwary litigants commonly issue small value maritime claims, often involving personal injury claims or property damage to small private craft such as yachts, in their local county court without considering the proper nature of the underlying claim and the question of whether the county court has jurisdiction to hear the claim.

1.15 Before 26 April 1999, the Admiralty jurisdiction of the county courts derived from sections 26 and 27 of the County Courts Act 1984 (“the CCA 1984”). Pursuant to section 26 of the CCA 1984, the Lord Chancellor had the power to appoint a county court to have Admiralty jurisdiction within the meaning of section 27 of the Act. Section 27 defined the Admiralty jurisdiction of county courts so appointed as jurisdiction to hear and determine the same claims as those set out in sections 20(2)(d) to 20(2)(p) of the SCA 1981, provided that the amount of the claim did not exceed £5,000 or, in salvage cases, the value of the property saved did not exceed £15,000.³³ Section 27(7) expressly provided that ” nothing in this section shall be taken to affect the jurisdiction of any county court to hear and determine any proceedings in which it has jurisdiction by virtue of section 15″. Section 15 is the provision in the CCA 1984 which gives the county courts jurisdiction over claims in contract and tort.

1.16 The 1999 Order did not repeal sections 26 and 27 of the CCA 1984. It merely removed the Admiralty jurisdiction of those county courts which had been appointed by the Lord Chancellor under section 26.³⁴ Thus, the 1999 Order took away the additional section 27 Admiralty jurisdiction which was conferred on the county courts appointed under section 26 of the CCA 1984. It did not oust the county courts’ general jurisdiction to try claims which are founded on contract or tort, but which might also constitute Admiralty claims. This is consistent with the position under previous legislation circumscribing the Admiralty jurisdiction of the county courts.³⁵ In Scovell v Bevan³⁶ it was held that the previous legislation did not deprive county courts not having Admiralty jurisdiction of their original jurisdiction to try actions to recover damages for injuries caused by collision between vessels where the amount claimed did not exceed £50.³⁷ Thus, the county court still has jurisdiction to hear and determine a claim in tort, for example, for damage to a yacht caused by the negligence of the employees of the marina at which it is moored, even though this is a claim which would fall also within section 20(2)(d) of the SCA 1981 as a claim for “damage received by a ship”. The position is arguably the same in respect of a personal injury claim under the Athens Convention on the Carriage of Passengers and their Luggage by Sea as incorporated into English law by section 183 of the Merchant Shipping Act 1995. Such a claim would fall within section 20(2)(f) of the SCA 1981. However, the county courts would arguably have jurisdiction over the claim pursuant to section 16 of the CCA 1984 which gives the county courts jurisdiction to hear and determine claims to recover money under statute.³⁸

1.17 As set out in paragraph 1.4 above, certain claims are required to be started in the Admiralty Court by virtue of CPR Part 61.2(1). Issuing the claim form for any of these claims in the county court would not, however, render the claim itself a nullity. The procedural error could be corrected by transferring the claim to the Admiralty Court. The relevant statutory provision is section 42(1) of the 1984 Act which provides as follows:

1.18 The Court of Appeal in Restick v Crickmore [1994] 1 WLR 420 dealt with a provision requiring a certain class of claim to be commenced in a county court.⁴⁰ The High Court had struck out the Appellant’s personal injury claim on the grounds that it ought to have been commenced in the county court because the value was less than £50,000. Stuart-Smith LJ gave the following general guidance in relation to such errors⁴¹:

1.19 In In re NP Engineering and Security Products Ltd [1998] 1 BCLC 208 the Court of Appeal approved that guidance and applied it to a section 42(1)(b) case concerning proceedings wrongly commenced in the county court.

1.20 In summary, the position appears to be as follows:

• (a) The claims identified in CPR Part 61.2(1) must be commenced in the Admiralty Court.
  
• (b) If such a claim is wrongly commenced in the county court, the claimant should apply for the proceedings to be transferred to the Admiralty Court. The question then arises of where the transfer application should be made. While section 42(1)(b) of the CCA 1984 confers a power (indeed imposes a duty) on the county court to transfer the claim to the High Court in such circumstances, it is doubtful whether it entitles a county court to transfer proceedings before it directly to the Admiralty Court. This is because CPR Part 30.5(3) provides that “an application for the transfer of proceedings to or from a specialist list must be made to a judge dealing with claims in that list”. Accordingly, the transfer application should probably be made to the Admiralty Court itself and the County Court proceedings stayed pending the decision of the Admiralty Court.⁴³
  
• (c) Claims which are “Admiralty claims” within the meaning of CPR Part 61.1(2)(a),⁴⁴ but which are not required to be started in the Admiralty Court pursuant to CPR Part 61.2(1) and which fall within the county court’s jurisdiction over claims in contract, tort or for money recoverable by statute may be commenced and heard in either the Admiralty Court or in a county court. An example would be a claim by a boat yard for £5,000 due under a contract to carry out repair works to a small private craft. Such a claim would fall within section 20(2)(n) of the SCA 1981 as a claim in respect of the repair of a ship and could therefore be commenced in the Admiralty Court but the claim would also fall within the county court’s jurisdiction to hear claims in contract.

There is much to be said for starting claims in category (c) in the county court rather than the Admiralty Court.⁴⁵ However, the warning in the first edition of this work referred to in paragraph 1.14 above still applies. The safest course is to commence proceedings in respect of all Admiralty claims in the Admiralty Court whether they are required to be started there or not. The broad range of transfer options available under CPR 61.2(3) should ensure that the claim is dealt with in the most appropriate and convenient court.

The Cinque Ports⁴⁶

Court of Admiralty of the Cinque Ports

1.21 This is the last remaining local court exercising Admiralty jurisdiction,⁴⁷ although it is believed that it has not actually heard a trial since 1908⁴⁸ and is thus to all intents and purposes moribund and of only ceremonial or historical interest. The Court is presided over by the Judge Official and Commissary of the Court of Admiralty of the Cinque Ports. New rules were made in 1983 making the Rules the same as the Rules of the Supreme Court (as they were then known),⁴⁹ although the Civil Procedure reforms by its terms do not apply.⁵⁰ The Court has original jurisdiction in Admiralty matters limited both as to subject matter and as to geographical area, and appellate jurisdiction from awards of Cinque Ports Commissioners.

Subject-matter jurisdiction

1.22 Although it has been suggested⁵¹ that the Court has original jurisdiction co-extensive with that of the High Court it is suggested that this is incorrect. Historically the Admiral of the Cinque Ports Court may well have jurisdiction as extensive as that of the Lord High Admiral himself within the area of the Cinque Ports, and retained the same jurisdiction as that retained by the Admiralty Court prior to 1840.⁵² However, it is not mentioned in the 1840 and 1861 Acts extending the Admiralty jurisdiction of the High Court and therefore its subject-matter jurisdiction would appear to be limited to inherent jurisdiction of the Admiralty Court prior to 1840 and to the jurisdiction which is specifically conferred upon it by the Cinque Ports Act 1821.

1.23 The Cinque Ports Act 1855 provided for the High Court jurisdiction to extend to the Cinque Ports and the saving provision in that Act⁵³ merely preserved the power of the Lord Warden “under any Act relating to the adjustment of salvage” and the jurisdiction of the Court of Admiralty of the Cinque Ports in respect of flotsam, jetsam and lagan. On one view this Act took away the previous jurisdiction of the Court except in so far as it was expressly preserved by that Act.

Geographical boundaries

1.24 The geographical boundaries of the jurisdiction of the Admiralty Court of the Cinque Ports is a matter of ancient usage. At an Inquisition at Hastings in 1526 the jurisdiction of the Admiral of the Cinque Ports was found to extend from the Horseshoe (Shoebury) in Essex to Beauchief (Fairlight) in Sussex.⁵⁴ Section 18 of the Cinque Ports Act 1821 provided a definition for the purposes of that Act only, although it is believed that for practical purposes it can be taken as being the boundaries of jurisdiction according to ancient custom. The Court therefore has jurisdiction over claims arising within the following area: from a point to the westward of Seaford in the county of Sussex, called Red Cliff, including the same; thence passing in a line one mile without the sand or shoal called The Horse of Willingdon, and continuing the same distance without the ridge and new shoals; and thence in a line within five miles of Cap Gris Nez on the coast of France; thence round the shoal called The Overfalls, two miles distant from the same; thence in a line without, and the same distance along the eastern side of the Galloper Sand, until the north end thereof bears west-north-west true bearing from the west-north-west bearing of the Galloper, it runs in a direct line across the shoal called The Thwart Middle, till it reaches the shore underneath the Maze Tower; from thence following in a line of the shore up to Saint Orsyth, in the county of Essex, and following the course of the shore up to the River Colne to the landing-place nearest Brightlingsea; from thence in a direct line to Shoe Bacon; from thence to the Point of Shellness, on the Isle of Sheppey; and from thence across the waters to Faversham; and from thence following the line of the coast round the North and South Forelands and Beachy Head, till it reaches the said Red Cliff, including all the waters, creeks, and havens comprehended between them.

1.25 On one view the effect of CPR Part 61.2, appears to be to remove the remaining original jurisdiction of the court if any still existed. Claims for damage done by a ship, salvage, wages and pilotage must now be brought in the Admiralty Court. This would mean that its present jurisdiction is limited to hearing appeals from decisions of Cinque Port Commissioners under section 4 of the Cinque Ports Act 1821, and jurisdiction over claims by the Lord Warden to or in respect of flotsam, jetsam and lagan.

Appeal

1.26 Appeal from the Court was to the Privy Council.⁵⁵

The Cinque Port Commissioners

1.27 The Cinque Port Commissioners have power to determine salvage claims within the Cinque Ports.⁵⁶ In practice this jurisdiction is obsolete.

Channel Islands and the Isle of Man

The Royal Court of Guernsey

1.28 By the combination of the Admiralty Jurisdiction (Guernsey) Order 1993⁵⁷ and section 150(1) of the Supreme Court Act 1981, the Admiralty Jurisdiction of the High Court has been extended to Guernsey as modified in the Order, and therefore the Admiralty jurisdiction of the Royal Court in Guernsey is the same as the High Court in England and Wales. It extends over the whole of the Bailiwick of Guernsey, which includes the islands of Alderney, Sark, Herm and Jethou.

The Royal Court of Jersey

1.29 No order has been made under section 150(1) of the SCA 1981 in respect of Jersey and therefore the precise extent of its Admiralty jurisdiction⁵⁸ is not clear, although it plainly has Admiralty jurisdiction.⁵⁹

The Admiralty Court of the Isle of Man

1.30 No order has been made under section 150(1) of the SCA 1981 in respect of the Isle of Man, but it is believed that its Admiralty jurisdiction is similar to that of the High Court of England and Wales.⁶⁰ The Court is presided over by the Water Bailiff, and an appeal lies to the staff of Government and thence to the Privy Council.⁶¹

Colonial Courts of Admiralty

1.31 Colonial Courts of Admiralty were established in place of Vice-Admiralty Courts by section 2 of the Colonial Courts of Admiralty Act 1890 and given the same jurisdiction as the High Court in England and Wales. It was held in The “Yuri Maru” and The ” Woron”⁶² that the jurisdiction conferred by the 1890 Act was only that jurisdiction existing at the time of the passing of the 1890 Act. However, section 150(2) of the SCA 1981 provides that the jurisdiction of the High Court in England may be extended to any colony. Orders have been made under this section in respect of the British Indian Ocean Territory⁶³ and Gibraltar.⁶⁴ In addition by virtue of section 17(2)(b) of the Interpretation Act 1978, Orders made under the equivalent provision of the Administration of Justice Act 1956 have effect as if made under the 1981 Act. Such Orders had been made in respect of the Cayman Islands,⁶⁵ the Virgin Islands,⁶⁶ the Turks and Caicos Islands,⁶⁷ the Falkland Islands,⁶⁸ Montserrat,⁶⁹ Bermuda⁷⁰ and St Helena and its Dependencies.⁷¹

Wreck inquiries

Accident investigations

1.32 Section 267 of the Merchant Shipping Act 1995 provides for the appointment of inspectors of marine accidents with powers to investigate accidents involving a ship or ship’s boat where at the time of the accident the ship is registered in the United Kingdom or is within the seaward limits of the territorial sea of the United Kingdom. Pursuant to the powers conferred by that section regulations have been made, the Merchant Shipping (Accident Investigation) Regulations 1989,⁷² as to how such investigations are to be carried out. Unless a Formal Investigation is ordered, the report of such an investigation may be published by the Secretary of State if he thinks fit, and he is obliged to publish the report if it appears that to do so will improve the safety of life at sea and help prevent accidents in the future or it relates to a serious casualty⁷³ to a United Kingdom ship unless in his opinion there is good reason to the contrary.⁷⁴

Formal Investigations

1.33 Section 268 of the Merchant Shipping Act 1995 provides that a Formal Investigation may be made into an ” accident” which is defined by regulation 2 of the Merchant Shipping (Accident Investigation) Regulations 1989 as being any contingency whereby:

• “(a) there is loss of life or major injury⁷⁵ to any person on board, or any person is lost from, a ship or a ship’s boat⁷⁶; or
  
• (b) a ship is lost or presumed to be lost or is abandoned or materially damaged; or
  
• (c) a ship strands⁷⁷ in a collision; or
  
• (d) a ship is disabled⁷⁸; or
  
• (e) any material damage is caused by a ship.”

Such a Formal Investigation is held by a wreck commissioner who is assisted by one or more assessors.

Purposes of a Formal Investigation

1.34 The primary purpose of a Formal Investigation is essentially the same as that of a Marine Accident Investigation which is stated in regulation 4 of the Merchant Shipping (Accident Investigation) Regulations 1989 in the following terms:

1.35 In The “European Gateway” ⁷⁹ Steyn J had to decide whether or not the findings of a Formal Investigation gave rise to any issue estoppel. He decided that they did not and in the course of his judgment he explained the functions of a Formal Investigation. He said⁸⁰:

Procedure

1.36 The procedure in a wreck inquiry is regulated by the Merchant Shipping (Formal Investigation) Rules 1985 as amended by the Merchant Shipping (Formal Investigation) (Amendment) Rules 1990.⁸¹ These Rules require⁸²