Colonial and Federal Admiralty Jurisdiction
| Published date | 01 September 1981 |
| Date | 01 September 1981 |
| DOI | 10.1177/0067205X8101200303 |
| Subject Matter | Article |
COLONIAL AND FEDERAL ADMIRALTY
JURISDICTION
BY
C.
A.
YING*
Notwithstanding the inclusion
of
"Admiralty and maritime juris-
diction" within the constitutional grant
of
federal judicial power,
current Admiralty jurisdiction in Australia is based solely on a
nineteenth century Imperial statute, the Colonial Courts
of
Admiralty
Act
I890. That this has remained the case for so long is regrettable,
and reflects in part a traditional deference to Imperial control over
international shipping (although lately there have been indications
of
greater legislative assertiveness over maritime matters generally), and
in part a reluctance to interfere with the present allocation
of
juris-
diction among State courts.
A concerted effort
is
now under way to lay the foundation for the
creation
of
a modern indigenous Admiralty jurisdiction, and with
this in mind, the author sets out to examine the nature and extent
of
the current colonial jurisdiction, its interrelationship with the federal
jurisdiction under section 76(iii)
of
the Constitution, and the desirability
of
abandoning the rigid nineteenth century base
of
the former to
realise the full twentieth century promise
of
the latter.
This Article outlines the nature and extent of current Australian Admiralty
jurisdiction, and attempts to highlight some of its uncertainties and anomalies,
with emphasis on the civil side of this jurisdiction. These uncertainties and
anomalies result partly from a colonial legacy handed down in 1890 and
since unmodified, and partly from the constitutional framework within
which the judicial power of the Commonwealth and States
is
exercised.
That they have persisted to the present day is not due to the inability of
the Commonwealth legislature to rectify the situation, at least since the
adoption here of the Statute of Westminster 1931 (Imp.) in 1942 (with
retrospective effect from 3 September
1939),
and views have been
expressed, both judicially and extra-judicially, that legislative intervention
is desirable.
In
1969, Barwick C.J. observed somewhat testily in Union
Steamship Co.
of
New Zealand
Ltd
v.
Ferguson:1
...
it is apparent from what I have written and from what has fallen
from Justices of this Court in earlier cases that the jurisdiction in
Admiralty now calls for examination resulting in clearer definition
and appropriate limitation by the legislature.2
In the same year, Mr Acting Justice Zelling (as he then was) presented
a position Paper to the Executive of the Law Council of Australia accom-
panied by a draft Bill with an impassioned plea for legislative reform.3
Unfortunately, although the Paper and Bill were to be forwarded to the
federal Government for action, the position remained unchanged. The
* LL.M. (Lond.);
of
Lincoln's Inn, Barrister; Senior Lecturer in Law, The New
South Wales Institute of Technology.
1 (1969) 119 C.L.R.
191.
2Jd. 209.
3
See
(1969) 4 Law Council Newsletter 11, 29.
236
1981] Colonial and Federal Admiralty Jurisdiction 237
latest impetus for reform came in 1979 with the establishment of a Joint
Committee by the Law Council and the Maritime Law Association of
Australia and
New
Zealand to formulate and prepare recommendations for
the implementation of an Australia-wide solution to the problem of
Admiralty jurisdiction.4
It
is
hoped that on this occasion the efforts of the
Joint Committee will bear fruit, and to this end the writer seeks to focus
attention on the unsatisfactory state of the present legal situation.
Two preliminary points may be briefly disposed of before proceeding
further. The first concerns the desirability of placing the scarce time and
resources of the municipal court system at the disposal of foreign litigants
whose only connection with the country of the forum may be the fortuitous
presence in its territorial waters of a ship or cargo related to their dispute.
It
is
submitted that an Admiralty jurisdiction facilitates and
is
a useful
concomitant to international trade (the vast bulk of which is seaborne),
in
that the range of countries whose curial assistance caq be invoked to
enforce a claim increases in proportion to the number of ports visited by
the ship in question, and in addition, a plaintiff
is
generally jlssured of some
security for his claim. Legal practitioners will benefit by obtaining a wider
expertise in the resolution of transnational disputes and a greater familiarity
with business problems straddling national frontiers.
Mo~eover,
in cases
involving a foreign element, local courts will be encouragqd to abandon a
parochial perspective in favour of a broader international approach (which
can only foster a healthier climate for commercial interqourse); for the
right to proceed directly against ship, cargo or freight (
th~
action in rem,
a mark of Admiralty actions)
is
granted by the laws of a.l countries with
significant trading interests.5 !
The second point, raised specifically in relation to
Aus~·
alia, deals with
the question of whether matters of Admiralty jurisdiction sh uld be included
within the judicial power of the Commonwealth or left t the constituent
States. Section 76(iii) of the Commonwealth
ConstitutiOJ/1
states that the
federal Parliament may make laws conferring original jul[isdiction on the
High Court in all matters of Admiralty and maritime
j~risdiction.
The
Judicature Committee in its Report of 26 September
1~77
to Standing
Committee D of the Australian Constitutional Convention) expressed some
doubts
as
to the necessity for keeping the Admiralty
clau;
in the Consti-
tution, and recommended that Standing Committee D e amine the need
for its retention.6 Standing Committee D forthwith resolve to commission
4 (1980) 15
(1)
Australian Law News 27; [1980] Reform 26.
)By
March 1980, a
Working Group set
up
by the Joint Committee had prepared a
d~aft
report together
with a Draft Bill for consideration by the Joint Committee. :
5
For
a comparative study
of
the rules
of
various countries
on~e
arrest
of
ships,
see generally Maritime Law: Vol.
I,
Arrest
of
Vessels (Netherlan : Kluwer, 1976),
published under the auspices
of
the International Bar Associatio .
It
was not pure
coincidence that a close relationship developed between the Admi lty and commerce
clauses in the American Constitution: Stolz, "Pleasure Boating a d Admiralty: Erie
at
Sea" (1963)
51
California Law Review 661, 666
D.
In
1972, S
uth
Africa contem-
plated abolishing its Admiralty jurisdiction, but decided for
pr~~Smatic
commercial
reasons not to do so: Annual Survey
of
South African Law 1972 (1973) 414.
6 Report
of
Judicature Committee to Standing Committee D,l Australian Consti·
tutional Convention 1977 (1979) 14-15. The Australian Constitllltional Convention,
a national attempt
to
reform the Constitution involving Comm4mwealth and State
politicians, commenced proceedings in Sydney in 1973, and met fgain in Melbourne
238 Federal Law Review
[VOLUME
12
an opinion on the matter,7 but at the plenary meeting of the Convention in
Perth on 26 July 1978, the Chairman of the Judicature Committee did not
advocate the deletion of the Admiralty clause, which was proposed to be
retained unchanged in the amended Constitution.8
It
is submitted that
as
Admiralty jurisdiction involves international shipping, a potentially sensitive
political issue between nations, it is eminently a subject over which the
Commonwealth should retain central control. Let us now examine the state
of Australian Admiralty jurisdiction.
A. ADMIRALTY
JURISDICTION-MEANING
AND ADVENT IN
AUSTRALIA
Since Admiralty jurisdiction in Australia traces its development from
England, a brief outline of its history there is apposite in order to understand
its content and follow its advent here.9
A state official ruling a fleet, the Admiral appears to have been first
granted judicial powers over piracy and a wide range of maritime cases in
the middle of the fourteenth century. Because of alleged excesses of juris-
diction, statutes were passed in 1389 and 1391 during the reign of
Richard
II
to restrict the powers of Admirals to things done upon the sea
and outside the bodies of the counties.
10
This has been traditionally said to
mark the geographical limits of English Admiralty jurisdiction. The realm
of England, as the province of the common law, extended only to the low
water mark, and everything beyond was the high seas. The Admiral had
exclusive jurisdiction on the high seas, and concurrent jurisdiction with the
common law between the high and low water marks within the ebb and
flow of the tide. Thus, it may be observed that the phrase "high seas" in
relation to Admiralty jurisdiction was not defined by reference to territorial
waters. Territorial waters came within the high seas, which were in principle
limited only by the ebb and
flow
of the tide. However, a further limitation
was imposed by the 1391 statute: any part of the high seas coming within
the body of a county was not within the Admiral's jurisdiction.
To
cite from
the definition of "high seas" by Lindley L.J. in The Mecca,
11
for the
purposes of Admiralty jurisdiction the term includes
in 1975, Hobart in 1976 and Perth in 1978. Unfortunately, although much discussion
was generated, few reforms have materialised to date.
7 Third Report
of
Standing Committee D to Executive Committee, 3 February
1978, Australian Constitutional Convention 1978, 13.
8 Proceedings
of
the Australian Constitutional Convention 1978: Perth (1979) 12,
204.
9 Generally see Holdsworth, A History
of
English
Law
(7th ed. 1966 rep.) Vol. I,
544-573; Marsden's excellent Introduction to Select Pleas in the Court
of
Admiralty,
Vol. I, xi-lxxxiv, and Vol. II, xi-xli, written in 1894 (Selden Society Publications);
Mears, "The History
of
the Admiralty Jurisdiction" in Select Essays in Anglo-
American Legal History (1907-1909) Vol. II, 312-364 and O'Hare, "Admiralty
Jurisdiction" (1980) 6 Monash University Law Review 91, 195.
In
addition, Sir
Travers Twiss's Introduction to each of the four volumes
of
the U.K. Rolls Series
publication (commencing 1871)
of
the Black
Book
of
the Admiralty provides a
documentary and historical background to the old maritime codes administered in the
Admiral's Court.
1o
13
Rich.
II
c. 5 (1389); 15 Rich.
II
c. 3 (1391).
11
[1895] P. 95.
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