Comparative Analysis of Maritime Law Development in the UK and Another European Nation

Posted: February 29th, 2024

Comparative Analysis of Maritime Law Development in the UK and Another European Nation

2. Historical Development of Maritime Law in the UK
Historical development of maritime law in the UK: This section will discuss the historical development of maritime law in the UK. It will look at the effect of Europe and international law upon UK law and will highlight how the UK has, as a result of its EU membership, lost some sovereignty in this area. The discussion will begin by looking at the development of UK maritime law. It will identify that UK maritime law was historically a fully separate body of law from that of the land. It was administered by various different courts, the most authoritative of which was the Court of Admiralty. However, the position with regards to courts changed in the late 19th century with the passage of the Supreme Court of Judicature Act 1873, which led to the merging of the administration of legal systems for the UK and, in so doing, the end of a separate administration of maritime law. The UK then repealed the Admiralty Court Act 1861, which had brought about some reforms making it easier to enforce actions in rem. The repealing of this act meant that thereafter rules of procedure for the Admiralty division did not differ significantly from that of the common law procedure. In consequence, the administration of UK maritime law declined and it was, in effect, de-unified with UK land law. Measures were thus taken to unify the law with that of common law, and in 1967 the administration of UK maritime law was fully unified with the land by the Administration of Justice Act 1965. From 1967, the applicable law in maritime matters was no longer international maritime law; rather, it was UK common law which, at that time, was not very developed in maritime matters. This resulted in a decline of the UK as a forum for maritime disputes as compared to the common law or civil law jurisdictions with a developed body of maritime law.
2.1 Evolution of Maritime Law in the UK
Throughout the period of 1377 to 1399, during the reign of Richard II, England had engaged in battle at sea with France on account of piracy. This led to the ordinance of the sea with the king’s great seal, which stated that seeing the great loss and damage that the king and his lieges have heretofore sustained by the taking and detaining of their ships and goods upon the uncertain and tumultuous tides of the sea and diverse other places within the realm of England and other the king’s lands.
During the period of 1154-1216, King John set about to increase royal revenue from the sea, and to achieve this, he established a claim that the owner of any ship involved in navigation at sea should pay two marks to the king. This resulted in the judgment that the sea, including the shore, and all things within that are dealt with or carried thither by its means, are deemed in the law of the realm to belong to the king as lord of the sea. Also, we have said concerning actions for maritime services or for the loss or the increase of a thing, are deemed to belong to the cognizance of our court.
The United Kingdom has maintained its position as a leading maritime nation for centuries. As a result, much of the evolution of its maritime law took place prior to the 20th century. Before discussing the regression of the UK as a flag state, it is imperative that we investigate the growth of the UK as a flag state. By a flag state, we mean the state whose flag the ship is entitled to fly.
2.2 Influential Factors in the Development of UK Maritime Law
The geographical factor is of great significance. It is generally agreed that the shipping industry was a major force in the growth of the UK as an industrial and colonial power during the 19th and early part of the 20th centuries. As an island nation heavily dependent on sea trade, the shipping industry was regarded as a ‘fundamental British interest’. This was reflected in the legislative support of the industry and the development of laws that favored shipping interests. The decline of the industry from the Second World War and its almost virtual collapse in the late 20th century has resulted in the need for UK shipping law to attract foreign shipowners. This led to an influential report in 1982 by the Institute of Maritime Law, which recognized the need to become more international in outlook and to align UK law more closely with that of international conventions. This change in emphasis was confirmed by the UNSAID’s Law of the Sea Policy in 1983. The UK has since become involved in the creation of much international maritime law and policy. A variety of economic factors throughout the history of UK maritime law have also played a significant part and have often been connected with the needs of the shipping industry.
The factors which have influenced the development of maritime law in the UK have been both internal and international. Some have been geographical, some economic, some political, and some social. The interplay of these factors has resulted in a legal system that has always been alive to the needs of the shipping industry. Until the Second World War, the major objective of UK maritime law was the protection and growth of its shipping industry. This resulted in the development of laws that were attuned to the needs of shipowners, with a strong emphasis on procedure and the protection of their interests.
2.3 Key Legislations and Legal Framework
The year of 1995 saw a significant restructuring of the UK’s maritime safety framework. The integration of the various conventions and regulations of the International Maritime Organisation, of which the UK is a leading member, resulted in an extensive and detailed code governing maritime safety and environmental protection. As such, The Merchant Shipping Act 1995, The Maritime and Coastguard Agency Act 1995, The Shipping and Trading Interests (Protection) Act 1995 and The Protection of Wrecks Act 1973 to 1995 (of which only the 1995 provisions are in force) together constitute the most comprehensive body of legislation dealing with maritime safety and environmental protection. Significantly, prior to this legislation, the regulation of maritime safety had adhered to the International Convention for the Safety of Life at Sea 1974 and largely mirrored its provisions. The implementation of a UK specific code is largely attributed to the UK’s recognition of the detrimental impact of sub-standard shipping and the environmental damage caused by maritime casualties on the UK’s coastline and its reliance on the sea, for economic and recreational purposes. The UK has perceived a vested interest in protecting the convenience of its own shipping/trading interests and has sought to provide a higher standard of safety at sea than that required by international regulation in order to prevent incidents which are detrimental to the UK and its local mariners, these Acts symbolise a legislative move away from international regulation to UK specific requirements in this field. The Northern Ireland Assembly and the devolved Scottish Parliament have legislative powers which extend to maritime environment and safety regulation within the UK’s territorial sea and thus in future the extent to which these Acts apply to the whole of the UK may be an issue for further analysis.
3. Historical Development of Maritime Law in Another European Nation
The rapid development of maritime trade and shipping industry in the 15th and 16th centuries caused the inadequacy of already developed medieval norms and customs. The sovereign state system that evolved led to conflicting laws, and the need for a unified maritime law was clear. This came about in Western Europe as a result of the region’s domination in world trade and naval power. The influence of its maritime law can still be seen in some of the world’s oldest seafaring nations, i.e. UK and France. With the significance being described in the foregoing pages, the sectorial development in comparative light is also very significant, which led to the narrow analysis of UK’s history beforehand, and that of France now.
France during the ancient regime was not a politically unified state and this lack of central control has left its mark on France’s legal system today. Its slow and complex process of centralization resulted in disparate regional laws, particularly in the area of private law. Commercial law was then based on Roman civil law and customary law rather than laws of general application. The French lacked an administrative apparatus that could provide order to the realm of public law. Given that there was no concept of public international law at the time, France did not have an equivalent to England’s common law of the sea. The only truly national body of law was that of the ordinance. The famous Compilation des Anciennes Ordonnances by Jean Bodin was an attempt to compile all previous ordinances into one systematically ordered compilation. The French still use the word ordinance with the specific meaning of a law made by the executive branch of government. This ordinance was enacted in 1681.
This was much later than the institutional legislation that occurred in England. The ordinance enacted very little maritime law, however, with the result that general private and public French law was to be applied to maritime matters. An attempt to codify general maritime law was made in the 18th century by the publication of an annotated work of Rhone maritime law. This work was not given the force of law and it stated that if no provision existed in general law, customs were to be applied. The revolution caused the abolition of the consulate and ancien regime and thus the ordinance, but it had little effect on maritime law. Legislation in the early part of the 19th century saw little codification of general maritime law, and reflecting the lack of understanding of the aforementioned division between public and private maritime law. It was not until 1967 when the French government created a committee to investigate revision and unification of all the law of the sea into a single code. This saw the formation of the preliminary commission for the project of a UN convention on a code of the law of the sea. The resulting code is that which is applied today in the united law of the sea within France. This sets out a contrast to England and the UK, who have continued to use general laws of application to maritime matters and legislation to this day. France has thus moved from too much application of general law with little specific maritime legislation to the other extreme of entirely unifying all law of the sea into a specific code.
(compiled from W Friedeberg and R White Maritime Law of the UK and France)
3.1 Comparative Analysis of Maritime Law Development
This period also saw development in the law of the sea through the International Convention on the Prevention of Marine Pollution by Discharge of Ships, the Convention on the Territorial Sea and the Contiguous Zone, and the Convention on the Conservation of the Living Resources of the Sea.
In comparative terms, the development of maritime law in the UK was duplicated in New Zealand until the mid-20th century and followed English law as it was suitable for New Zealand’s needs. The turning point was in 1973 when New Zealand ratified the United Nations Convention on the Law of the Sea. This convention was to have a profound impact on the development of maritime law throughout the world. The convention set out a comprehensive legal framework governing the rights and responsibilities of nations in the use of the world’s oceans and established guidelines for international organizations concerned with the marine environment. An emerging awareness of the environment in the 1970s was to see environmental considerations become a more important factor in maritime law, and NZ’s first steps to independent lawmaking in this area saw it enact legislation aimed at increasing the country’s maritime jurisdiction and protection of its marine resources to coincide with the Convention.
This section outlines the development of maritime law in the UK in broad terms. In context, the development was similar for most maritime nations until the mid-20th century, and a comparative framework is outlined for another European nation. In the UK, the law developed as the need arose and usually took the form of general common law being applied to a particular maritime matter. This was unsatisfactory, and in the mid-19th century, the passage of the first codifying statutes sought to regulate specific matters. This process continued with UK Parliament passing international conventions into law and more regulations of specific maritime matters.
3.2 Influential Factors in the Development of Maritime Law in the European Nation
In the early days of shipping, the principles of mercantilism underpinned the development of Admiralty laws and the growth in national power from the 16th to the 19th century (Parliament of Australia, 2011). During this time, the aim of the laws was to serve the nation. This was due to the fact that shipping was crucial for national power and wealth, and at the time, sea transport was the only means to transport items between nations and overseas. The costs of transport and insurance, where contained within the price of the goods, which were transported, as the ship owner and merchant both wanted to avoid any potential loss. In comparison to the UK, it can be argued that the influence on the sea laws of specific periods in time have a mirrored correlation. In the late 19th century, the German ‘Imperial Era’ and ‘Kriegsmarine’ or navy laws were implemented, which had a similar effect to the UK’s Tudor Era. The purpose was to increase national power and wealth through trade, as a strong navy was seen as crucial to prevent invasion and to provide a stable environment for merchants and carriers. The sole purpose of both the German and UK legislation was to provide security and protection to merchants and ship owners.
During the World Wars and Napoleonic Period, there was an advancement in maritime law as a consequence of the availability of specific maritime laws worldwide. Measures were taken to avoid the chaos arising out of conflicting laws of individual countries with the establishment of the Hague and Geneva Conventions, Visby rules, and the formation of the European Economic Community (EEC). The effect of such events has brought about a harmonized relationship between the UK and EC in terms of maritime laws, as the UK now seeks to align the common law principles with those of continental codes in efforts to gain access to the European-wide business provided by the countries of the EC. This would not have been possible if the continental countries had not significantly advanced their laws and joined in unison. An example of such advancement is the transformation of the French law of marine Ordinance 1681. This has helped develop EC law in respect of owning a ship’s register and establishing detailed requirements for a contract of affreightment.
3.3 Key Legislations and Legal Framework
The several legislations listed earlier were influential factors in the way they eventually developed the legal framework for governments in France and the UK to increase tax revenue by imposing duties on goods carried by sea. France and England had fairly similar lines of development between the 13th and 17th century. Both countries adopted the general maritime law of the Italian city-states, the Consolato del Mare. This was a body of laws, customs, and practices which was compiled in the 13th century and reflected the commercial practices of the maritime traders and the practical and adventurous spirit of the shipmasters. This was largely due to activities carried out by private individuals at this time with government involvement, especially in England, only occurring with the principle that the king has to be bound by the same laws that bound his subjects. This was restated by an English statute in 1357. The Consolato del Mare should not be considered a statute law but was adopted as a legal system which was administered by special tribunals known as courts of Admiralty with the usual implementation of it occurring through various statutes and ordinances. In France, it was a series of ordinances whereas in England the method was through delegated legislation. An example from approximately 200 Consolato laws being integrated into law in England occurred in 1604 when King James the 1st directed that 24 of them be used as a base for laws in England. An example from a later date in France was a general ordinance in 1681 but the process of integration into law in France was never as clear and did not enjoy the prolonged effectiveness found in England. The Consolato del Mare was eventually superseded in France by the introduction of the maritime code in 1807 and in the UK by codification of Admiralty laws into the statute known as the Admiralty Court Act in 1840. The Consolato was to be highly influential and the methods and practices found within it are often looked to even to this day as being the basis of modern maritime law, especially the laws concerning marine insurance and the law of shipping.
4. Comparative Analysis of Maritime Law Development
Spain, much like the UK, also derived its maritime law from international law and various royal ordinances, which were later amalgamated into several law compilations and single articles. And much like the UK, it is hard to identify a specific time at which maritime law was created. From this point, each of the nations’ laws develops simultaneously with international law.
Under the UN Convention on the Law of the Sea (still a very influential force today), signatory nations were required to have uniform laws regarding the registration of ships. A failure to keep to this in the 1920s exposed differences between Scotland and England and paradoxes in English company law, which ultimately led to the Ships Registration Act 1993. This was an act intended to consolidate all prior legislation and simplify the registering of UK ships. And so we see that the main method of UK maritime law development was through the transposition of international law or conventions into UK law.
In looking at UK maritime law, it is hard to pinpoint a specific time at which maritime law was formalized – it is a gradual process that took place over time. This is a similar case for most European nations. It can be said in general terms that a nation will have specific maritime law when that nation’s law of the sea varies from international law on that subject. The UK did, at various times, have separate maritime courts, which were finally amalgamated into the Admiralty Division of the High Court in 1875. However, this was not the beginning of UK maritime law. To see that, we must look to the laws that were in place that were at variance with general legal practices of the time or with international law. An example of the former can be seen with the 23 articles established by Edward III in 1362. These articles were for the protection of sailors. The first statute, however, which is still considered to be part of UK maritime law, is the General Average Act of 1873. From this time onwards, UK maritime law has developed to keep pace with international law and UK obligations under various conventions.
This section of the essay will try to explore the development of maritime law in a broader context through a comparative study of the development of UK maritime law with the maritime law of another European nation. In doing so, we will try to identify the similarities and differences between the two nations’ development, the impact of EU law, and finally, some case studies and examples. The section is defined as a comparative study, and therefore the most appropriate method of doing this will be to first briefly outline the ways in which each nation’s law has developed and then make the comparisons.
4.1 Similarities and Differences between UK and European Nation
A factor that has significantly affected the development of a substantial body of maritime law in the UK is that of the Royal Navy. During the times of Empire, the Royal Navy was seen as a tool for expansion and national profit. In contrast to other nations, this exercise of sea power drove the UK into opening its markets and resources for exploitation by private persons and companies. This breaking from the feudalistic tradition of law at the time saw the need for a new set of rules and principles specifically aimed at the regulation of shipping and the resolution of maritime disputes. The Netherlands, known for its great trading history, also had similar experiences and has formulated its maritime law on the basis of Roman-Dutch law and the administrations of trading companies.
The first point to note is that both jurisdictions have had a long-standing relationship with shipping and thus an established body of law. Common law has existed for centuries in the UK, and there are numerous Acts of Parliament and legislative provisions that define the current state of the law. In the Netherlands, a civil law jurisdiction, the different sources of law are unified in the new Civil Code of 1838, also releasing consolidated statutes in the form of book series under various titles. Since then, institutions within the Netherlands government have also ratified and implemented several international conventions.
There are several similarities and differences between maritime law in the UK and one of its closest trading partners, the Netherlands. Understanding these similarities and differences can provide a greater understanding of how maritime law can be effectively implemented and what particular avenues could be adopted or avoided. All of these characteristics have evolved over time and are the result of many complex influences. Each is unique and its complexity should not be underestimated.
4.2 Impact of European Union on Maritime Law
There is a significant impact of EU private international law on UK shipping commerce. This is visible through the Rome I Regulations, which have diminished the scope of the UK Carriage of Goods Act, and the Rotterdam Rules, which are expected to apply pressure for a switch in the unification of UK bills of lading and sea waybills to a single negotiable document. The above examples are a reflection of the fact that while the UK has its own well-established legal principles and documents on international shipping, at times these may not be consistent with the rest of the EU or global shipping law, and the EU may pressure the UK to change or unify it with existing prevalent law.
The motive behind the study of installation of e-campaign in the UK is to promote cost-effectiveness and reduction of time in comparison to the s-campaign method. This is done with a view of considering the increasing litigation costs and time delays in the administration of justice. In this respect, the Charter of Fundamental Rights of the EU provides under Article 47 that everyone is entitled to a fair and public hearing within a reasonable time. Also, under this e-campaign process, the parties can choose the appellate court to judge the appeal depending on its relevance to the case and the questions of law or fact raised in the appeal. To this, the UK follows an open possibility for opting out of Brussels I regulations because the UK has traditionally always had the flexibility to abandon the choice of forum or the type of procedure right before a game-changing legislative method, and the said procedure has cost and time-saving benefits for the appeal court.
4.3 Case Studies and Examples
Similarly, there has been a conscious effort in New Zealand to maintain a separate system of maritime law and to give greater emphasis to it, in an attempt to differentiate New Zealand law from Australian law and to maintain a separate New Zealand identity. In both the Scottish and New Zealand cases, the interaction of internal and external factors, and the conscious balancing of divergent policy considerations, provide excellent material for studying the development of maritime law.
They also highlight the multi-causal nature of the development of maritime law. Throughout history, many systems of maritime law have developed in isolation from the general law. This is true of both England and Scotland. Although there was interaction between English and Scottish maritime law, and the general law of Scotland was often influenced by English law, Scottish maritime law developed its own distinctive character, sometimes in conscious differentiation from English law. This process accelerated after the Union of the Crowns in 1603, and was particularly pronounced after the Union of Parliaments in 1707. However, the development of a distinctive body of Scottish maritime law was brought to an end by its partial integration into European law as a result of the UK’s membership of the European Union.
Sometimes the development of a maritime legal system follows an unexpected event, such as the emergence of comparative negligence under US maritime law. Other times, it is the more gradual influence of social, economic, and political change which has a lasting impact, such as the effect of Scandinavian social policies on the ‘social’ character of Finnish maritime law, or the impact of the transfer of Hong Kong to Chinese sovereignty in 1997 on the development of Hong Kong’s maritime law. These case studies give particularly useful insights into the interaction of internal and external factors in the development of maritime law.