Chapter 9

References to the Admiralty Registrar

9.1 The practice of the Admiralty Court has been for the Admiralty Judge more often than not to refrain from entering into consideration of matters of detail such as the quantum of damages or the taking of accounts, but instead to refer such matters to the Admiralty Registrar.

General Considerations

References are discretionary

9.2 There is no rule that the assessment of damages must be referred1 and to avoid expense the court will refrain from ordering a reference if it can satisfactorily dispose of the question,2 such as where the issue of damages is straightforward and does not require detailed consideration of evidence. In deciding whether or not to order a reference the court will consider whether the matter can best be dealt with (from the point of view of cost and convenience) by the court at the hearing (with the assistance of the nautical assessors, if appointed) or by the Registrar subsequently.3 Thus for example where a ship sinks following a collision and an issue is raised as to whether the losses arising from the sinking are consequent upon the collision or whether the chain of causation has been broken, it will often be more convenient for this issue to be determined at trial rather than being referred.4 The decision on how Admiralty business is allocated as between Judge and Registrar is a matter of pragmatic case management.5 It is not uncommon for the Admiralty Registrar to hear high value and legally complex cases.6 The Registrar has all the powers of the Admiralty Judge except where a rule or practice direction provides otherwise. It should be noted that the Registrar may refuse costs to a party who unnecessarily requests a reference.7

Assistance of merchant assessors

9.3 It used to be the practice for the Admiralty Registrar to be assisted by merchants or other assessors, particularly where the matters to be considered related to matters of a commercial nature.8 The modern practice is for the Registrar to sit without assessors although there is no reason why assessors should not be used today in an appropriate case. If the parties agree in desiring that the reference be heard with assessors they may file an agreement in writing to that effect in the Admiralty and Commercial Registry9 otherwise an application for assessors should be made to the Registrar at the case management conference.10

9.4 In The “Haabet”11 Sir William Scott described the report of a tribunal comprising Registrar and merchants in the following words12:

“Such reports are in their nature partly legal and partly mercantile; it is a report proceeding from persons qualified, in both these respects to form a sound judgment on the subject before them; one of them being, from his connection with Courts of Justice, supposed capable of forming his own opinion, and of assisting his associates on all questions of law, in the first instance, subject to the inspection and correction of the Court, whilst the other part of this domestic forum, as I may call it, consists of persons acquainted with trade, and exercising their judgment on matters relative to commerce….”13

So too in The “Minnehaha” 14 the Master of the Rolls said:

“The Registrar and merchants are a tribunal which, of course, must not act in contravention of any legal principles, but it does not always act, in fact very rarely acts, according to the strict rules of evidence such as obtain in Courts of Law. The merchants are there for the purpose of helping the Registrar with their mercantile experience and knowledge of matters which come before the tribunal, and in many cases, in fact in most, a great number of matters are left to be decided according to the experience of the merchants, which, if they were to be strictly investigated according to the rules of a trial, would need a very considerable amount of evidence.”

Accordingly the court held that their decision would not be interfered with unless the Registrar and merchants had gone wrong in principle.

9.5 In The “Apsleyhall”15 the Court of Appeal16 compared appeals from Registrars to appeals from juries where it is necessary to establish that no 12 reasonable men could have come to the conclusion arrived at. He quoted with approval the following passage from the judgment of Kennedy LJ in The “Amerika”17:

“I apprehend that in a general way the assessment of damages takes place before a specially constituted tribunal, and I may add a tribunal so constituted as to include both skilled and legal elements—the element of skill in business and mercantile affairs, as well as a trained lawyer with special admiralty knowledge. The Court above ought not, therefore, except in very exceptional circumstances, to interfere with the decision of the assessing tribunal unless some error in principle is pointed out or there is an obvious error in the calculations regarding figures, or a plain misunderstanding of some material portion of the evidence before the assessing tribunal.”

This approach has also been followed by the Court of Appeal in The “San Gregorio”18 and The “St Charles”.19 However, where the Registrar sits without merchants, his decision on the facts should be reviewable on appeal in the normal way as the special considerations applicable to the combined legal and mercantile tribunal do not apply.

Rules of evidence apply to references

9.6 In The “Chekiang”20 Lord Sumner made the following observation regarding the practice before the Registrar21:

“… there are two things always to be borne in mind about proceedings in the Registry. The great experience of the Registrar and the knowledge of the merchants, who assist him, make evidence on many topics quite superfluous, and the participation in the proceedings of experienced counsel constantly justifies the conclusion that, by tacit if not by express consent, statements are accepted of which no formal proof appears on the note….”

However, it should not be assumed that the normal rules of evidence do not apply to references, and the observation means no more than that in many cases the parties are content to relax the rules of evidence so as not to require formal proof of all matters. It is necessary however to have agreement if it is proposed to rely upon statements without complying with the provisions of the Civil Evidence Acts.

Questions of law not referred

9.7 Questions of law are not usually referred,22 but a matter may be referred with directions to the Registrar to assess the damages upon a certain legal basis.23

No reference unless it is clear something is due

9.8 Where a ship is arrested for a specific demand, the amount cannot be referred to the Registrar unless it appears that something is in any event due.24

Reference prior to judgment

9.9 The court may at any stage refer any question or issue for determination by the Admiralty Registrar25 and in an appropriate case this may be prior to judgment,26 but it will not do so in a default action in rem.27

The types of claims which may be referred

9.10 Apart from the usual questions of damage to ships or cargo, the following questions have, for example, been referred: