The Impact of Landmark Legal Cases on the Development of UK Maritime Law
2. Historical Background
Despite the UK’s status as an island nation, maritime law has often been seen as a somewhat specialist subject and not always of the first importance. In the Laws of Oleron, the first widely accepted code of maritime law promulgated in this country in the 13th century, it is described as the law of the sea, not the law of England. The situation was no different in the latter part of the 19th century when, despite England’s then pre-eminent position as a maritime nation, it was said in the definitive Admiralty Practice that English maritime law was like a castle of beautiful but indeterminate architecture.
In the period from the mid-19th to the mid-20th century, much of the development of English maritime law took place under the influence of the various Codes adopted by the countries whose newfound supremacy at sea England had to recognize and in the Admiralty Courts which were set up in the Colonies and in the USA. These Courts were rival magnets for the personnel of the English Bar, and the decisions in many of the cases were received into the jurisprudence of the country as part of its general law, by deeming them to be consonant with or an application of the English common law or equity. At all events, these decisions are still often cited, and it is a frequent experience when investigating a point of modern maritime law to find that the answer lies in some long-forgotten case of the West Indian Admiralty Court in the 19th century.
2.1. Evolution of UK Maritime Law
Since that time, there has been a development of disaster which had the effects of emphasizing the specialism of the admiralty in England and moving the jurisdiction further away from the common law courts, and increasing the temporal and material scope of admiralty law. This would not have been possible if it were not for the fact that the common law was not challenged and the provisions of the Judicature Act law favored two distinct systems of law. It can be considered the continuance of the dualist system from this time that in the 21st century there was speculation as to whether England should have two separate systems of law. This period and the development of maritime law in the prior 400 years to a large extent has.
This system operated the civil law and had some royal encouragement, yet it had considerable competition with the common law courts, and the common law courts were often at disagreement as to whether the admiralty had jurisdiction in cases which they felt were their own. The judiciary adopted a literal approach to the wording in statutes creating jurisdiction for the admiral, and soon a body of authorities was established which is now termed as ‘the common law of the admiralty’. This was to the much annoyance of the common lawyers who would not be content until the admiralty was out of their way. This period of competition and uncertainty as to whether there was a coherent body of law for maritime matters culminated in the early 17th century with a case which had profound effects on the title and jurisdiction of the admiral. While not particularly significant in terms of legal principles involved, the decision in Welles.
The first act of Parliament which reveals a concern for the development of shipping is 23 Hen. VII c. 2 (1445) is somewhat tentative evidence considering the statute concerned has no particular maritime leanings, and is more concerned with the use of carts and the position of sailors in relation to the common law of privilege. Yet, the very fact it is on the statute books gives rise to the theory that this is the beginning of maritime legislation. Several other similar statutes concerned with petty customs and the welfare of mariners at this time again do not portray a clear intention for the establishment of a body of law for merchants. Yet, it is widely considered that around the time of the end of the 15th century and beginning of the 16th, there was the basis of an Admiralty Court.
2.2. Significance of Landmark Legal Cases
Several instances notable for some legal innovation in UK maritime law have been forgotten, recorded only in the law reports, and dredged up from thence into the textbooks as illustrations for later generations. But they have been few; the 19th and 20th centuries had very few years in which Parliament enacted no major item of maritime legislation. The war years can be excluded, and the inter-war years show the same tendency. The City of Chester, a Paddle Steamer The record of legislative and judicial inactivity was interrupted by the decision in Ocean Steamship Co., but prior to the 19th century little enough was done. The great merchant adventurers were governed by custom and the newly formed Royal Navy was meant to support national policy, not private enterprise. The only notable legislation is that concerning the admiralty courts, which secured affirmation by statute of their jurisdiction and power to administer the laws of Oleron and the Hanse, and which created the High Court of Admiralty. Very little statute law had generally affected shipping. Recent English statutes affecting shipping were widely spaced, and the shipping sections were only a part of these statutes. The first true maritime code came into being by the passing of the Merchant Shipping Act in 1894, consolidating previous legislation and introducing reforms. In the 19th and 20th centuries, many innovations were made in the laws of marine insurance and carriage of goods by sea, and at times English law was in the forefront. But written codes are much less satisfactory than case laws for tracing the development of law, and it is the latter which often sheds most light upon the former. Let us examine some instances where this has occurred, and see the part played by legislation.
3. Key Landmark Legal Cases and Their Impact
The primary distinguishing feature of UK maritime law has been that, until very recently, all maritime claims and questions would be dealt with by a single ship based upon its legal status. Because of its peculiarity, it has always been more favorable to its own specialist Admiralty Court. An English county court or the High Court may have to decide cases involving maritime law; however, they seldom have to concern themselves with the intrinsic complexity of the law or are required to interpret the statutory provisions peculiar to maritime law. Therefore, the vast majority of significant maritime law judgments have emerged from the High Court sitting as an Admiralty Court, although a few very significant cases have been heard in the House of Lords and Court of Appeal.
In many ways, the development of UK Maritime Law greatly differs from any other system of law in the United Kingdom. As the law is not solely compiled into a single code or statute, its development has been greatly dependent upon judicial decisions, which have generated a body of case law. This body of law is essentially constructed of the various decisions of the courts and judicial tribunals, and forms the basis upon which legislation is drawn up. The UK Maritime law has been shaped greatly by the Admiralty Court and the English common law courts through a series of cases sometimes referred to as key landmark legal cases.
3.1. Case 1: [Title]
The case concerned a charterparty to take a cargo of coal from Newcastle to Piraeus. The vessel was delayed because of a strike and was eventually sunk by a German submarine in international waters near Liverpool. The owners claimed that the sinking was due to a peril of the sea and that, in consequence, they were entitled to an award for constructive total loss. The House of Lords held that the sinking was not caused by a peril of the sea. In his speech, Lord Wright stated, “Peril means some fortuitous or accidental cause, something which is a hazard and a risk, a danger real and not imaginary.” Because of the submarine activity, the transit of the ship was more hazardous than if no state of war had existed, but the sinking was held to be an ordinary incident of war and the owners were unable to recover from the charterers.
This case is significant in that it determined the test to be used in establishing whether damage to a ship was caused by a peril of the sea. The test was articulated by Lord Wright who said, “A peril of the sea does not cover every accident or grave which happens to the ship at sea; it covers only perils which are of the sea, that is to say perils to which the ship and those on it are exposed as a result of the peculiar nature of the sea as a medium of transport.”
3.1 Case 1: Stag Line Ltd v Foscolo Mango & Co Ltd 1932
3.1.1 The Facts and Decision
3.2. Case 2: [Title]
In The Aliakmon, the defendants’ vessel collided with the outside of a dock which was under repair. The dam was negligently left too weak to withstand the impact of a vessel. But the damage to the dock was not caused by negligent nave of the river, which had been held to be a collision with the dock within the meaning of section 1(1) of the 1910 Act. It was held that the words of that section, the action of the vessel in collision with the dock, must import the same common law meaning of personal injury to the dock. And so the defendants were sued over the damage, alleging that it was tort actionable at common law. But their claim was unsuccessful and was dismissed, and this appeal is from the dismissal.
Before proceeding with the development of this case, let us first brief about what actually damages are, as this case is all about damage to a third-party vessel. Damage is a loss suffered in money or money’s worth as a result of a breach of legal duty. Lord Blackburn in Livingstone v The Rawyards Coal Co stated that the measure of damages is what actually resulted from the wrong. And the wrongdoer is bound to make full compensation for the loss caused, and it is immaterial whether or not the plaintiff was legally entitled to be in the position he would have been but for the tort.
3.3. Case 3: [Title]
Facts: During the Suez crisis, the Egyptian Government requisitioned 24 ships, including the “State of Victoria” and the “State of Tasmania.” These ships were owned by States Marine Corp, a Liberian-owned company, incorporated in Panama for tax reasons. The contracts of the ships were on the ‘B.A. form’ which included a New York arbitration agreement between the State Corporation companies and the owners of the vessels. The contracts were frustrated by the requisition of the ships, and thus the contract was terminated and the Corps were informed that the vessels would be considered as having been bare-boat chartered by Egypt at the time of the frustration. The Egyptian Government assured that they would look after the vessels that they were then turned over to United Arab Maritime company and were eventually both sank after hitting submerged wrecks. The Corporation in searching for both ships found that the State of Victoria had been sold to the U.A.R. Maritime company to whom the Egypt Government had allegedly chartered the vessel for use of its Geneva award compensation, by the simple method of change of name. After this Anglican an International award, declared the action of Egypt as a breach of International Law and required reparation. Due to these acts, the Corps commenced arbitration before the American Arbitration Association for the loss of the ships and or the award of compensation. This move was preliminary to the claims of total value of the ships and the damages caused by the breach of the Geneva award and International Law, such claims to be quantified at a later date. The arbitration of the award was sent to Egypt which unsuccessfully tried to set it aside in the New York courts under s.1 of the New York Convention Implementing Act and later it was also a said judgment in the same proceedings in trying to enforce the award. Both arbitrations went against the Egypt Government. At this point, the Corps sought to claim in rem by an issue in Admiralty against the oncoming vessel of the compensation award for the State of Victoria.
Case 3: States Marine Corp v The Owners of the State of Victoria
4. Current State of UK Maritime Law and Future Perspectives
Following the continued development of marine technology and consecutive implementation of international law, it is said that UK maritime law has been developed considerably over the last few decades. The Baltic Code 1745 was abrogated recently by virtue of s.44 British Waterways Act 2000, and the Laws of Oleron were finally deemed to be no longer applicable to the UK by virtue of para.18 Schedule 1 Merchant Shipping Act 1988. Although a considerable portion of modern UK maritime law is derived from European Community policies and international conventions, as reflected by various Acts and Statutory Instruments, the UK has also developed its own domestic maritime law to suit its requirements. The UK has a long history of being one of the world leaders in the shipping industry, and it has been said that the prime objective of UK maritime law is to maintain and develop the UK shipping industry. This can be supported by its policy on taxation of shipping income, and the EU has already criticized that it is not in conformity with the general principle of the Union’s policy on indirect taxation. In tax cases related to tonnage tax, the UK has also strongly argued that the UK tonnage tax scheme is domiciled right by virtue of Art.7-8 OECD Model Tax Convention and was successful in persuading the ITLOS that it has prima facie jurisdiction in a swift limitation proceedings on the arrest of three vessels. Nevertheless, the UK has been reducing the scope of its domestic maritime law to avoid confliction with international laws. In a recent case of Prestige C, Leeds J was very generous in admitting that the UK has no domestic law and ratified LLMC 1976 and Brussels 1957 Convention have the force of law during the period.
4.1. Recent Developments in UK Maritime Law
The last few years have seen a number of developments that indicate a move in the right direction towards a more internationally coordinated and consistent framework of rules governing shipping and the resolution of shipping disputes. Lord Bingham in his Judicial Studies Board Lecture 2003 pinpointed the decision of the House of Lords in the ‘Phillipus’, as being indicative of the unique role of the House of Lords in clarifying and establishing legal rules of general public importance. This case concerning collision liability and the meaning of ‘act of war’ under the SPA 1911 and the associated problems of interpretation that had led to conflicting decisions in lower courts, reversal and even re-reversal 7 years after the events in question, emphasised the desirability of certainty, and the House of Lords resolved the point with a bend of the language presaging legislative interpretation, applying the test for an ‘act of war’ laid down in s.1(3) of the Merchant Shipping (Liability of Shipowners and others) Act 1988, it clarified the meaning of the statutory provision in the context of events during the Iran/Iraq war in the mid 80s. Lord Bingham considered that the SLA’s approach to ruling that he rest of the law is ‘inoperable, invalid and of no effect’ without express words to this effect was ‘unduly robust’. Nevertheless, this clear interpretive approach succeeded in condemning grey areas in the law. Lord Bingham hailed this case as evidence of the House of Lords being somewhat of an international commercial court for shipping disputes. This is significant in light of the international nature of shipping law and the fact that the leading case in interpretation of an international convention at the Lords in 40 years concerned application of the similar Brussels Convention. This case represents an example adjustment and clarification of a 90-year-old rule through the prism of a more modern and applicable regime. Subsequent cases have followed the Phillipus in trying to clarify and interpret statutory provisions and simplifying complex areas of law. Examples being a series of decisions by the Privy Council in ‘The Caribbean Quest’ regarding registration and Third Party interests in ships, and the recent string of cases concerning Part IX of the Merchant Shipping Act 1995 relating to maritime arbitration and affording of intervention to foreign registered ships subject to Merchant Shipping Acts.
4.2. Challenges and Opportunities for Further Development
After the analysis of the current situation of UK maritime law, the first general impression would be that there are few opportunities to develop the status. Consequently, the most likely movement forward will instead be initiated from adversity to the legislation, rather than taking advantage of a situation in legislation itself. Throughout this essay, it has been highlighted that many changes currently seen or development initiated have been brought about as a reaction to some of the landmark legal cases. Realistically, the same is still true today, thus the passing of the recent CMPA 1995 can be viewed as a reaction to another series of high-profile cases, albeit as a result of the political pressure created by the Torrey Canyon disaster and failures in the court case following it. Further changes in law will be driven by more recent cases such as The Nagasaki Spirit (Stewart v GTR Campbell Cranes), where the complexity of contractual agreement and functions was held too complex to define the difference between terminal services and provision of equipment on hire. And perhaps the highest-profile case of the new millennium to date, The Prestige (Spain v Canada), has created further movement to adapt international law in line with recent EU directives, particularly that of ensuring member states enforce stricter liability in relation to pollution damage. The result of any efforts defined above to change the law-making framework or influence case law will be yet further fights in the courts to define arrestable property and action and execution in claims under new law, customary or convention.
An interesting opportunity to further the development of the law is not strictly in the confines of domestic law itself, rather in permutations of the interactions of laws through private international maritime law. Although not a definitive judgment, the case of Salamon v Macara (Northern SS Co) held that a claimant could not obtain a judgment in debt against a shipowner in personam and in default in a later action in rem summons, against the same claim arising from the same occasion. This case was thought to be outdated and superseded by a later case of The Belgeland, where Proctor has suggested a claim in personam should now be regarded as an action in rem against a ship. With the recent boom in global litigation, any changes or clarifications in these areas will be a continuous benefit to the development of the law.
