Admiralty Jurisdiction and Practice

Nigel Meeson and John A Kimbell

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1 Introduction

Historical origins

1.1 Today the Admiralty Court is simply part of the Queen’s Bench Division of the High Court1 but for many years it had a separate existence, its own court buildings near St. Paul’s cathedral and its own specially trained cadre of advocates.2 The emergence of the Admiralty Court as a distinct jurisdiction has been traced to the period between the years 1340 and 1357.3 It is thought to have come into being because of difficulties experienced by domestic courts in dealing with international piracy claims.4 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.5 It was not until 1859 that common law barristers and solicitors were even permitted to appear in the Admiralty Court.6 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). The advocates were members of the College of Advocates and Doctors of Law, more usually referred to by the name of the place of the building which housed the court, its registry and its practitioners, Doctors’ Commons.7 Doctors’ Commons housed the High Court of Admiralty from 1664 to 1860, when it moved to Westminster Hall. It was only after 18618 that it

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became clear that the Admiralty Court was a court of record.9 The old High Court of Admiralty ceased to exist on 2 November 1875 pursuant to the Judicature Acts 1873 and 1875.10 Accounts of the history of the Court are to be found in various sources.11 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.12 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.13 The present work is, however, concerned only with Admiralty jurisdiction and practice at the present time.

The present

The admiralty court and its judges

1.2 Section 5(5) of the Senior Courts Act (SCA) 198114 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. However, section 6(1)(b) of the SCA 1981 provides that there be constituted as part of the Queen’s Bench Division an Admiralty Court (as well as a Commercial Court and a Patents Court). Section 6(2) of the SCA 1981 provides that the judges of the Admiralty Court are to be such of the puisne judges as the Lord Chief Justice may from time to time nominate after consulting the Lord Chancellor. In practice, what happens is that after a certain period sitting in the Queen’s Bench Division, in the interests of flexibility of deployment, a judge is nominated to sit in the Commercial and Admiralty Courts. Thus any of the Commercial and Admiralty Court judges may deal with Admiralty Court matters (and commonly do so). However, of these

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judges, it is still the practice for one to be designated as “the Admiralty Judge”.15 It is the designated Admiralty Judge who usually presides over full trials in the Admiralty Court16 and who liaises with the Admiralty Registrar in relation to the management of Admiralty Court business generally. There is an Admiralty Court Committee which acts as forum for contact and consultation between the Admiralty Court and its users.17

The admiralty and commercial registry

1.3 The administrative office for the Admiralty Court is the Admiralty and Commercial Registry located at 7 Rolls Building, Fetter Lane, London EC4A 1NL. Some matters concerning business which has been allocated to the Admiralty Registrar (e.g. listing of applications before the Registrar) are dealt with by the Registrar18 in Room E.121 in the Royal Courts of Justice, Strand WC2A 2LL rather than in the Rolls Building.

The admiralty registrar

1.4 Since at least 1539, the Admiralty Court has had an Admiralty Registrar.19 Historically the Registrar had a variety of important administrative functions.20 However, the Registrar also sat in a quasi-judicial capacity (with merchant assessors) to determine the level of damages to be awarded in a variety of Admiralty claims, most commonly collision actions. The amount determined by the Registrar was then reported to the Admiralty Judge who might consider objections before deciding whether to confirm it or not.21 The Registrar still presides over such references today. The relevant procedure is described in . The Admiralty Registrar is a full Queen’s Bench Master with all the judicial powers which that entails.22 Furthermore, under CPR Part 61, the Admiralty Registrar additionally has all the powers of “the Admiralty Judge”23 “except where a rule or practice direction provides otherwise”. The Registrar also has an important case management function. Under paragraph 2.1 of the Practice Direction to CPR Part 61, it is the Registrar who considers every claim form issued in the Admiralty Court and makes a decision as to whether the claim should remain in the Admiralty Court and if so whether the claim will be dealt with by the Admiralty Judge or by the Registrar. 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 rule 26.8 in so far as they are applicable.24 Although the sum in dispute is not determinative, claims where the sum in dispute is less

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than £1 million will usually be dealt with by the Registrar. The Registrar therefore acts as a “gate-keeper” for Admiralty Court claims. Hearings before the Admiralty Registrar usually take place in E.121 in the Royal Courts of Justice although if necessary a full court room may be booked by the Registrar. Finally, it is the Admiralty Registrar who liaises with the Admiralty Marshall in respect of the arrest of vessels and release from arrest.

CPR Part 61

1.5 Admiralty claims (as defined in section 20 of the SCA 1981) 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.25 The Admiralty Court and the Commercial Court share an official guide to procedure: The Commercial Court Guide.26 1.6 All claims in the Admiralty Court are “multi-track” claims.27 Certain claims are required to be brought in the Admiralty Court.28 These are:

(i) a claim in rem;
(ii) a claim for damage done by a ship;
(iii) a claim concerning the ownership of a ship;29
(ix) 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.

Electronic filing (e-filing)

1.7 With effect from 25 April 2017, all proceedings and applications in the Admiralty Court must be issued online using the court’s own electronic filing system.30 What started

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life as an Electronic Working Pilot Scheme31 has now become the sole means of commencing claims and filing applications.32

Pre-action applications

1.8 Pre-action applications (e.g. for disclosure) prior to the issue of proceedings as an Admiralty claim must also be issued electronically. The application will considered first 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.33

Subject matter jurisdiction

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

Under section 20(1)(a) of the SCA 1981 34

1.10

(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.35
(d) Any claim for damage received by a ship.

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(e) Any claim for damage done by a ship.36
(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 1989;37
- (ii) under any contract38 for or in relation to salvage services;39 or
- (iii) in the nature of salvage not falling within (i) or (ii) above; or any corresponding claim in connection with an aircraft.40
(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.

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Under section 20(1)(b) of the SCA 1981 41

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(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

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

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

1.13 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. 1.14 These heads of jurisdiction, together with the practice of the court are considered in more detail in the following chapters.

County courts

1.15 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”.42 It was suggested that “the moral is litigate in the county court at your peril”.43 However, six years later the government decided to abolish the Admiralty jurisdiction of the county court altogether with effect from 26 April 1999.44 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 the county court without considering the proper nature of the underlying claim and whether the county court has jurisdiction to hear the claim at all.

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1.16 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 £15,000.45 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. 1.17 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 26.46 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.47 In Scovell v Bevan48 it was held that the previous legislation did not deprive county courts which had not been specifically appointed as 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 £50.49 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 MSA 1995. Such a claim would fall within section 20(2)(f) of the SCA 1981. However, it might be argued that the county courts technically still 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.50 However, it is

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suggested that the better view is that personal injury claims falling within 20(2)(f) of the SCA 1981 must be started in the Admiralty Court and not the county court by virtue of CPR rule 61.2(1). 1.18 If a claim which is required to be started in the Admiralty Court by virtue of CPR rule 61.2(1) is issued in the county court, this error does not render the proceedings a nullity. The procedural error could be corrected by transferring the claim to the Admiralty Court. A county court judge faced with an objection based on CPR rule 61.2(1) will have a choice of either transferring the proceedings to the Admiralty Court or striking the proceedings out. The relevant statutory provision is section 42(1) of the 1984 Act which provides as follows: “Where a county court is satisfied that any proceedings before it are required by any provision of a kind mentioned in subsection (7)51 to be in the High Court, it shall –

(a) order the transfer of the proceedings to the High Court; or
(b) if the court is satisfied that the person bringing the proceedings knew, or ought to have known, of that requirement, order that they be struck out.”

1.19 The Court of Appeal in Restick v Crickmore 52 dealt with a provision requiring a certain class of claim to be commenced in a county court.53 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 errors54:

“… provided proceedings are started within the time permitted by the Statute of Limitations, are not frivolous, vexatious or abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers. Save where there has been a contumelious disobedience of the court’s order, the draconian sanction of striking out an otherwise properly constituted action, simply to punish the party who has failed to comply with the rules of court, is not part of the court’s function. No injustice is involved to the defendant in transferring an action which should have been started in the wrong court to the correct court….

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