Admiralty Procedure

• Author: Edgar Gold; Aldo Chircop; Hugh M. Kindred; William Moreira
• Pages: 211-274

211

CHA PTER 6

ADMIRALTY PROCEDURE

A. INTRODUCTION

1) O v er v i ew

Admiralty practice, in its broadest sense, is the practice of law in which

substantive maritime law is applied. In Canada in particular, this body

of law has undergone, and continues to undergo, signif‌icant growth

in content and in the scope of activities to which it applies. Principal-

ly, again in a Canadian context, Admiralty practice involves litigation

before the Federal Courts, in both in rem and in personam proceedings.

Such proceedings are the substantial focus of this chapter. There are,

however, other aspects of modern admiralty practice, including in per-

sonam proceedings in provincial courts — and in British Columbia, in

rem proceedings — as well as application of regulatory and penal law,

chief‌ly federal statutes, in such areas as shipping, f‌isheries, pollution

prevention, and offshore oil and gas exploration.

2) Historical Perspective

The origins of the English Admiralty Court are lost in antiquity; scholar-

ly writings on the subject vary somewhat among themselves in details.1

1 See Edward S Roscoe, Admiralty Jurisdiction and Practice of the High Court of Jus-

tice, 5th ed (London: Sweet & Maxwell, 1931); William Senior, “The First Admi-

ralty Judges” (1919) 35 Law Quarterly Review 73; Reginald G Marsden, ed, Select

PART II: ADMIR ALTY JURISDICTION AND PROCEDUR E212

There is, however, general agreement that by the middle years of the

fourteenth century, there existed an off‌icer of state called the admi-

ral, who exercised both executive and judicial functions. As England’s

pre-eminence as a sea power grew, English law found it necessary to deal

with spoils and prize claims against foreign powers, as well as with pi-

racy and other offences committed at sea. However, because of its tradi-

tion of conf‌ining its jurisdiction to the English counties from which ju-

ries could be summoned, the common law was considered ill-equipped

to deal with these aspects. As a result the patent of Admiral Sir John de

Beauchamp, appointed in 1360, gave him or his deputy power of “taking

cognizance of maritime causes and of doing justice and imprisoning of-

fenders.” It is universally acknowledged that the Admiral’s courts, from

the time of their inception, took on themselves the resolution of com-

mercial, tort, and criminal cases that the common law courts had always

considered to be in their exclusive jurisdiction, with result that the early

admiralty courts were restrained in their operation both by prerogative

writs issued by the common law courts and also by statute. Two statutes

in particular in the late fourteenth century provided that “the Admirals

and their deputies shall not meddle from henceforth of anything done

within the realm, but only of a thing done upon the sea,”2 and that “of all

manner of contracts, pleas and quarrels, and all other things rising with-

in the bodies of counties, as well by land as by water, and also wreck of

the sea, the Admiral’s court shall have no manner of cognizance, power

or jurisdiction.”3 The substantive law thus administered for the centu-

ries that followed is summarized by Williams & Bruce:

The Admiralty court was left in possession of its jurisdiction over torts

committed on the high seas, for that had never been disputed, and in

suits of salvage also its authority prevailed, for that was regarded as a

branch of the royal prerogative, with the exercise of which the court

was properly entrusted. In suits of possession the Admiralty acquired

jurisdiction, because it afforded a summary process unknown to the

common law, by which the possession of the very thing in dispute was

at once dealt with. Again, in cases of hypothecation the Admiralty was

suffered to exercise jurisdiction, because the contract of hypothecation

was not recognized by the common law, and it was only in Admiralty

Pleas in the Court of Admiralty (London: Seldon Society, 1894) vol 1, Introduc-

tion; Robert G Williams & Gainsford Bruce, Jurisdiction and Practice of the High

Court of Admiralty (London: Maxwell & Son, 1869); Erastus C Benedict, Benedict

on Admiralty, 7th ed (Newark: LexisNexis, 2002) vol 1.

2 What Things the Admiral and his Deputy Shall Meddle, 1389 (UK), 13 Rich II, c 5.

3 In What Places the Admiral’s Jurisdiction Doth Lie, 1391 (UK), 15 Rich II, c 3.

Admiralty Procedure 213

that the thing hypothecated could be proceeded directly against. Over

seamen’s wages the court, though only after a long struggle, obtained ju-

risdiction, apparently on the grounds that as the crew could sue togeth-

er in the Admiralty court, the remedy was more convenient than at law,

and that the seamen were entitled to the advantage the Admiralty af-

forded them of having the ship itself arrested as security for their wages.4

Statute eventually assigned to the Admiralty Court additional subject

matter jurisdiction. This expansion generally did not commence until

Queen Victoria’s reign.5 However, it appears from the above discussion

that “inherent” admiralty jurisdiction was based in function: the extra-

territorial situs of the cause of action and the ability of the court to seize

property against which it was invited to exercise that jurisdiction. In a

modern context, this latter aspect of historical admiralty jurisdiction

lives on as the in rem action.

There has been much debate among scholars as to the theoretical

base of in rem proceedings. Some espouse the “personif‌ication theory” —

that the ship itself is an instrument of wrongdoing and, although inani-

mate, is itself a defendant in proceedings before the court.6 Others hold

to the “procedural theory” — that the arrest of the ship was a device that

compelled, or at least provided incentive, for the shipowner to appear be-

fore the court to answer claims against her, at peril of being permanently

deprived of her property.7 Somewhat surprisingly, a relatively modern

contest between these two theories reached and required decision of the

House of Lords,8 the issue being whether judgment in an in personam

action operated as res judicata and so prevented a separate in rem action

arising out of the same facts. This decision contains a thorough review of

the various times and circumstances in which each theory was ascendant

in admiralty proceedings.

In modern Canadian practice, certain elements of both the proce-

dural and personif‌ication theories persist, and it may be argued that

Canada has adopted a hybrid of the two schools of thought. As dis-

cussed later, Canadian law requires that there be a ship or other prop-

erty that is “the subject of the action,” without which there can be no

4 Williams & Bruce, above note 1 at 9–10.

5 Admiralty Court Act, 1840 (UK), 3 & 4 Vict, c 65; Admiralty Court Act, 1861 (UK),

24 Vict, c 10; Colonial Courts of Admiralty Act, 1890 (UK), 53 & 54 Vict, c 27. In

a Canadian context, these were largely adopted by the Admiralty Act, 1934, SC

1934, c 31, and remained in force until repealed in 1971 on the coming into force

of the Federal Court Act, SC 1971, c 1.

6 See Burns (The), [1907] P 137.

7 See Tervaete (The), [1922] P 259 (CA).

8 Indian Grace (No 2) (The), [1998] 2 Lloyd’s Rep 1 (HL).