Admiralty Jurisdiction and Practice
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2
Subject-matter jurisdiction
Introduction
2.1 As previously observed1 the jurisdiction of the Admiralty Court is limited by subject-matter. Where jurisdiction is invoked in personam this limitation upon subject-matter jurisdiction is of only technical importance as section 5(5) of the Senior Courts Act (SCA) 1981 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. A claim in personam commenced in the Admiralty Court, but not within the scope of the jurisdiction of the Admiralty Court, can simply be transferred out of the Admiralty Court to a more appropriate court. However, only the Admiralty Court may exercise jurisdiction in rem by way of an Admiralty claim in rem. In such cases it is a necessary, but not a sufficient, prerequisite that the court has subject-matter jurisdiction. It is therefore necessary to consider in some detail the various heads of subject-matter jurisdiction which are provided by section 20(1) of the SCA 1981. In this chapter these will each be considered in turn, following the order in which they appear in section 20(2) of the SCA 1981 (as amended by the Merchant Shipping Act (MSA) 1995). It is, however, convenient to consider the definition of a “ship” as a preliminary matter, as most of the heads of jurisdiction are concerned with claims in connection with ships. However, before doing so it is necessary to say something about the relationship between subject-matter jurisdiction of the Admiralty Court and jurisdiction under private international law.Subject-matter jurisdiction: necessary but not sufficient
2.2 The catalogue of subject matter jurisdiction contained in section 20 of the SCA and its predecessors2 is the result of a protracted “turf war” between the Admiralty Court and the common law courts. Statutes were passed to limit and punish3 improper use of the Admiralty Court. The common law courts also issued domestic anti-suit injunctions (called “writs of prohibition”) to prevent litigants pursuing claims in the Admiralty Court.4 However, the Admiralty Court then enjoyed a period of resurgence in the nineteenth century culminating in a series of statutes the general effect of which was to expand the jurisdiction of the Admiralty Court considerably.5 The present-day catalogue set out in section 20 ofPage 28
- (1) Claims for possession of a ship;
- (2) Claims under a ship mortgage;
- (3) Claims under bottomry and respondentia bonds;
- (4) Collision damage claims;
- (5) Damage to cargo;
- (6) Salvage;
- (7) Towage;
- (8) Necessaries;
- (9) Seamen’s wages.
However, the nineteenth-century statutes which finally settled the jurisdiction of the Admiralty Court were passed at a time when the only control over the international exercise of that jurisdiction were the rules on service and the doctrine of forum non conveniens.7 Subject only to compliance with the technical rules governing service of in personam and in rem writs, the jurisdiction of the Admiralty Court was exorbitant and almost unlimited. The self-imposed common law limit on the exercise of the jurisdiction which eventually become known as the doctrine of forum non conveniens was a flexible and sensitive mechanism adapted and applied by judges to suit the requirements of particular cases.8 The situation is now somewhat different. The statutory heads of jurisdiction created by section 20 of the SCA 1981 must now all be read consistently with, and subject to, the Brussels I Regulation9 and the Lugano II Convention.10 Section 20 of the SCA 1981 does not create a special jurisdiction outside of the European jurisdictional code which now governs when any court (including the Admiralty Court) has jurisdiction over any particular case. The European jurisdictional rules were imported initially into English law in 1982 in the form of the Brussels Convention and then subsequently in the directly effective form of Regulation 44/2001. Insofar as remnants of the old approach survive, they do so only as exceptions to the overriding rules of European law.11 Thus, while it still remains necessary as a matter of purely domestic law to determine whether the Admiralty Court has subject-matter jurisdiction over any particular claim, even if it does, whether or not the court actually has jurisdiction to hear the claim as a matter of English (European) private international law is a question which has to be determined under the