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- Volume 2011, Issue 47, 2011
Transactions of the Centre for Business Law - Volume 2011, Issue 47, 2011
Volume 2011, Issue 47, 2011
Source: Transactions of the Centre for Business Law 2011, pp 1 –37 (2011)More Less
This monograph deals with maritime liens in a conflict of laws situation, and more particularly with the question of recognition and enforcement of foreign maritime liens in Australia - informed by a preliminary study of the origins of maritime law and maritime liens generally. It is about the maritime lien, "a nasty little beast who continues to stalk the unwary" and the conflict of laws. In view of the vagaries of maritime liens and the involute nature of conflict of laws, the discourse on this subject area is one of the most complex in international maritime law and practice. One may say in Churchillian rhetoric that the conflict of laws problem in maritime lien law is a "riddle wrapped in a mystery inside an enigma".
Source: Transactions of the Centre for Business Law 2011, pp 38 –93 (2011)More Less
It is believed that present day maritime law is the result of a long process of development that began in antiquity with its roots in the Rhodian and Roman Law, as continued by the Consulate of the Sea, the Laws of Oleron, and the Hanse League. The origin of maritime liens, however, is less clear. Attempts have been made to show the existence of maritime liens in Graeco-Roman antiquity, mainly on the basis of the use of bottomry loans. Bottomry loans, admittedly based on scanty evidence, are said to have already existed at Ugarit, an ancient cosmopolitan city sited on the Mediterranean coast of northern Syria, and neighbouring states, during the second half of the second millennium BC. In this chapter, I discuss and analyse the Rhodian Sea-Law, ancient Greek Law, and Roman Law, fossicking for the origin of the maritime lien in ancient law.
Source: Transactions of the Centre for Business Law 2011, pp 94 –117 (2011)More Less
Roman law as applied to maritime situations continued in force in the Mediterranean for centuries up until the compilation of the Medieval maritime codes. After the "fall" of the Western Roman Empire in 476 AD, the Germanic conquerors, influenced by the principles of personality in accordance with which each people should be subject to its own principles of law, provided that Roman law should continue to be binding on and valid in respect of their Roman subjects. Roman law thus continued to be applied, albeit in an adapted or vulgarised form, and various compilations were prepared which made liberal use of existing collections of imperial law and digests of juristic law.
Source: Transactions of the Centre for Business Law 2011, pp 118 –163 (2011)More Less
The development of maritime law in France is important for purposes of this monograph for a number of reasons. First, the maritime lien was allegedly best encapsulated in the concept of privilege in early French law. When the maritime lien was recognised in The Bold Buccleugh, it was said that those who practised at the bar of the Court of Admiralty were familiar with the principle of privileged debts, and they understood maritime liens to be basically similar in effect to the French privileges, which were succinctly and lucidly explained in articles 2093 to 2097 of the Code de Commerce of 1807. So, a maritime lien was, in effect, the maritime equivalent of a civil law privilege.
The early English Admiralty Court and the conceptualisation of the maritime lien : an historical conspectusSource: Transactions of the Centre for Business Law 2011, pp 164 –226 (2011)More Less
It is not necessary for purposes of this monograph to delve into the origins of English admiralty jurisdiction and maritime law. The history of English admiralty law and the Admiralty Court is, however, briefly recounted as a backdrop to the investigation into the conceptualisation of the maritime lien. It appears that in England there was little interest in the sea before the 16th century. Suffice it to say that at the end of the 11th century, there was not much to distinguish the maritime law of England from that of northern France or Germany. The body of law received into the English courts dispensing maritime justice was, in most respects, foreign to English law.
Source: Transactions of the Centre for Business Law 2011, pp 227 –273 (2011)More Less
American admiralty courts had their origin in the English courts, and the development of maritime law in America was patterned largely on the admiralty law of England. Since 1680, there have been admiralty courts in the seaport cities of the British colonies in North America. Colonial Vice-Admiralty courts were appointed by the British in places such as Massachusetts, Maryland, and New York. Although these courts were subjected to the same restrictions as the English Admiralty as mentioned before, these vice-admiralty courts appeared to have "exercised a somewhat broader jurisdiction than the jealousy of the common law courts permitted to the English admiralty courts."
Source: Transactions of the Centre for Business Law 2011, pp 274 –307 (2011)More Less
In this chapter, I concentrate on the maritime lien in the context of the current Australian admiralty law. Because of the historical links to English law, in discussing the Australian law, I have sought to include references to legislation and jurisprudence in other jurisdictions the admiralty law of which was also derived from that of England, such as Canada, South Africa, Singapore, New Zealand, and Cyprus.
Source: Transactions of the Centre for Business Law 2011, pp 308 –320 (2011)More Less
Pursuant to the provisions of sections 4, 5(1), 9, 10, 11 and 13 of the Admiralty Act 1988, the admiralty courts of Australia have jurisdiction to hear foreign maritime claims, whether or not they are similar or dissimilar to Australian maritime liens and claims. In Elbe Shipping South Australia v The Ship "Global Peace", Allsop J held that this jurisdiction entails the authority to hear and decide, or to adjudicate.
Maritime liens and the conflict of laws - an exegesis of The Halcyon Isle and preceding Anglo-common law decisionsSource: Transactions of the Centre for Business Law 2011, pp 321 –372 (2011)More Less
More often than not, maritime liens involve foreign elements. The hypothetical problem sketched in paragraph 1.1 is not farfetched. Over the years, courts in Anglo-common law jurisdictions such as England, Canada, South Africa and Singapore have been confronted with similar scenarios which resulted in reported decisions. Moreover, the highest courts in Canada and South Africa have conclusively dealt with the question of the recognition and enforcement of foreign maritime liens.
Maritime liens and the conflict of laws - an exegesis of the Anglo-common law decisions after The Halcyon IsleSource: Transactions of the Centre for Business Law 2011, pp 373 –446 (2011)More Less
The Halcyon Isle has defined the debate about the recognition and enforcement of foreign maritime liens in Anglo-common law jurisdictions, with reference to what is widely regarded as the lynchpin of the judgment: the classification of the maritime lien as a procedural right under English conflict of laws. Following The Halcyon Isle, the decisions of the courts in these jurisdictions may be divided into two groups.
Source: Transactions of the Centre for Business Law 2011, pp 447 –555 (2011)More Less
The speculative explanations about the origin, nature and justification of the maritime lien have resulted in an avoidance of analytical jurisprudence, almost as though abstract jurisprudence would be a judicial straightjacket for the concept of the maritime lien. The fact that the maritime lien has evolved over a period of time and was conceptualised when analytical jurisprudence was still in its swaddling clothes does not mean that the maritime lien should not be analytically considered, especially in the context of the conflict of laws. Like maritime legal problems in general, maritime lien problems cannot be solved by admiralty law alone because the law is so closely concatenated, in particular where a "maritime lien is plainly a legal term of art which describes a juristic concept which exists in many legal systems".