“Admiralty law”的意思、由来-开放百科全书

Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and private international law governing the relationships between private parties operating or using ocean-going ships. While each legal jurisdiction usually has its own legislation governing maritime matters, the international nature of the topic and the need for uniformity has, since 1900, led to considerable international maritime law developments, including numerous multilateral treaties.{{efn|Such as the COLREGS, SOLAS, Hague-Visby Rules, ISPS, etc.}}

Admiralty law may be distinguished from the Law of the Sea, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters, and the maritime relationships between nations. The United Nations Convention on the Law of the Sea has been adopted by 167 countries{{efn|The Convention on the Law of the Sea has not been ratified by 29 United Nations member and observer states, most notably the United States.^[1] See United States non-ratification of the UNCLOS.}} and the European Union, and disputes are resolved at the ITLOS tribunal in Hamburg.

History

Seaborne transport was one of the earliest channels of commerce, and rules for resolving disputes involving maritime trade were developed early in recorded history. Early historical records of these laws include the Rhodian law (Nomos Rhodion Nautikos), of which no primary written specimen has survived, but which is alluded to in other legal texts (Roman and Byzantine legal codes), and later the customs of the Consulate of the Sea or the Hanseatic League. In southern Italy the Ordinamenta et consuetudo maris (1063) at Trani and the Amalfian Laws were in effect from an early date.

A leading sponsor of admiralty law in Europe was the French Queen Eleanor of Aquitaine. Eleanor (sometimes known as "Eleanor of Guyenne”) had learned about admiralty law whilst on a crusade in the eastern Mediterranean with her first husband, King Louis VII of France. Eleanor then established admiralty law on the island of Oleron, where it was published as the "Rolls of Oleron". Some time later, while she was in London acting as regent for her son, King Richard the Lionheart, Eleanor instituted admiralty law into England as well.

In England, a special Admiralty Court handles all admiralty cases. Despite early reliance upon civil law concepts derived from the Corpus Juris Civilis of Justinian, the English Admiralty Court is very much a common law court, albeit a sui generis tribunal initially somewhat distanced from other English courts. After around 1750, as the industrial revolution took hold and English maritime commerce burgeoned, the Admiralty Court became a proactive source of innovative legal ideas and provisions to meet the new situation. The Judicature Acts of 1873-1875 abolished the Admiralty Court as such, and it became conflated in the new "Probate, Divorce & Admiralty" division of the High Court. However, when the PDA was abolished and replaced by a new "Family Division", admiralty jurisdiction passed to a so-called "Admiralty Court" which was effectively the QBD sitting to hear nautical cases. The Senior Courts Act 1981 then clarified the "admiralty jurisdiction of the High Court", so England once again has a distinct Admiralty Court (albeit no longer based in the Royal Courts of Justice, but in the Rolls Building).

English Admiralty courts were a prominent feature in the prelude to the American Revolution. For example, the phrase in the Declaration of Independence "For depriving us in many cases, of the benefits of Trial by Jury" refers to the practice of the UK Parliament giving the Admiralty Courts jurisdiction to enforce The Stamp Act in the American Colonies.^[3] This power has been awarded because the Stamp Act was unpopular in America, so that a colonial jury would be unlikely to convict any colonist of its violation. However, since English admiralty courts have never had trial by jury, a colonist charged with breaching the Stamp Act could be more easily convicted by the Crown.{{Citation needed|date=February 2013}}

Admiralty law became part of the law of the United States as it was gradually introduced through admiralty cases arising after the adoption of the U.S. Constitution in 1789. Many American lawyers who were prominent in the American Revolution were admiralty and maritime lawyers in their private lives. Those included are Alexander Hamilton in New York and John Adams in Massachusetts.

In 1787 John Adams, who was then ambassador to France, wrote to James Madison proposing that the U.S. Constitution, then under consideration by the States, be amended to include "trial by jury in all matters of fact triable by the laws of the land [as opposed the law of admiralty] and not by the laws of Nations [i.e. not by the law of admiralty]". The result was the Seventh Amendment to the U.S. Constitution. Alexander Hamilton and John Adams were both admiralty lawyers and Adams represented John Hancock in an admiralty case in colonial Boston involving seizure of one of Hancock's ships for violations of Customs regulations. In the more modern era, Supreme Court Justice Oliver Wendell Holmes was an admiralty lawyer before ascending to the bench.

Features

Matters dealt by admiralty law include marine commerce, marine navigation, salvage, maritime pollution, seafarers’ rights, and the carriage by sea of both passengers and goods. Admiralty law also covers land-based commercial activities that are maritime in character, such as marine insurance. Some lawyers prefer to reserve the term “admiralty law” for “wet law” (e.g. salvage, collisions, ship arrest, towage, liens and limitation), and use “maritime law” only for “dry law” (e.g. carriage of goods & people, marine insurance, and the MLC).{{efn|The title of Aleka Mandaraka-Sheppard's book changed from {{cite book |title=Modern Admiralty Law |date=2007 |isbn=9781843141969 |edition=2nd}} to {{cite book |title=Modern Maritime Law |date=2014 |isbn=9780415843201 |edition=3rd}}}}{{Citation needed|reason=The change in title of a book is not a source for the "wet law" / "dry law" distinction, especially as arrest a "wet law", is dealt with in the 3rd ed. |date=January 2019}}

Maintenance and cure

The doctrine of maintenance and cure is rooted in Article VI of the Rolls of Oleron promulgated in about 1160 A.D. The obligation to "cure" requires a shipowner to provide medical care free of charge to a seaman injured in the service of the ship, until the seaman has reached "maximum medical cure". The concept of "maximum medical cure" is more extensive than the concept "maximum medical improvement". The obligation to "cure" a seaman includes the obligation to provide him with medications and medical devices which improve his ability to function, even if they don't "improve" his actual condition. They may include long term treatments that permit him to continue to function well. Common examples include prostheses, wheelchairs, and pain medications.

The obligation of "maintenance" requires the shipowner to provide a seaman with his basic living expenses while he is convalescing. Once a seaman is able to work, he is expected to maintain himself. Consequently, a seaman can lose his right to maintenance, while the obligation to provide cure is ongoing.

A seaman who is required to sue a shipowner to recover maintenance and cure may also recover his attorneys fees. Vaughan v. Atkinson, 369 U.S. 527 (1962). If a shipowner's breach of its obligation to provide maintenance and cure is willful and wanton, the shipowner may be subject to punitive damages. See Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009)(J. Thomas).

Personal injuries to passengers

Shipowners owe a duty of reasonable care to passengers. Consequently, passengers who are injured aboard ships may bring suit as if they had been injured ashore through the negligence of a third party. The passenger bears the burden of proving that the shipowner was negligent. While personal injury cases must generally be pursued within three years, suits against cruise lines may need to be brought within one year because of limitations contained in the passenger ticket. Notice requirements in the ticket may require a formal notice to be brought within six months of the injury. Most U.S. cruise line passenger tickets also have provisions requiring that suit to be brought in either Miami or Seattle.

In England, the 1954 case of Adler v Dickson (The Himalaya) [1954]^[4] allowed a shipping line to escape liability when a bosun's negligence resulted in a passenger being injured. Since then, the Unfair Contract Terms Act 1977 has made it unlawful to exclude liability for death or personal injury caused by one's negligence. (Since then, however, the so-called "Himalaya clause" has become a useful way for a contractor to pass on the protection of a limitation clause to his employees, agents and third-party contractors).

Maritime liens and mortgages

Banks which loan money to purchase ships, vendors who supply ships with necessaries like fuel and stores, seamen who are due wages, and many others have a lien against the ship to guarantee payment. To enforce the lien, the ship must be arrested or seized. In the United States, an action to enforce a lien against a U.S. ship must be brought in federal court and cannot be done in state court, except for under the reverse-Erie doctrine whereby state courts can apply federal law.

Salvage and treasure salvage

When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on the salvaged property. There is no "life salvage". All mariners have a duty to save the lives of others in peril without expectation of reward. Consequently, salvage law applies only to the saving of property.

There are two types of salvage: contract salvage and pure salvage, which is sometimes referred to as "merit salvage". In contract salvage the owner of the property and salvor enter into a salvage contract prior to the commencement of salvage operations and the amount that the salvor is paid is determined by the contract. The most common salvage contract is called a "Lloyd's Open Form Salvage Contract".

In pure salvage, there is no contract between the owner of the goods and the salvor. The relationship is one which is implied by law. The salvor of property under pure salvage must bring his claim for salvage in court, which will award salvage based upon the "merit" of the service and the value of the salvaged property.

Pure salvage claims are divided into "high-order" and "low-order" salvage. In high-order salvage, the salvor exposes himself and his crew to the risk of injury and loss or damage to his equipment to salvage the damaged ship. Examples of high-order salvage are boarding a sinking ship in heavy weather, boarding a ship which is on fire, raising a ship or boat which has already sunk, or towing a ship which is in the surf away from the shore. Low-order salvage occurs where the salvor is exposed to little or no personal risk. Examples of low-order salvage include towing another vessel in calm seas, supplying a vessel with fuel, or pulling a vessel off a sand bar. Salvors performing high order salvage receive substantially greater salvage award than those performing low order salvage.

In both high-order and low-order salvage the amount of the salvage award is based first upon the value of the property saved. If nothing is saved, or if additional damage is done, there will be no award. The other factors to be considered are the skills of the salvor, the peril to which the salvaged property was exposed, the value of the property which was risked in effecting the salvage, the amount of time and money expended in the salvage operation etc.

A pure or merit salvage award will seldom exceed 50 percent of the value of the property salved. The exception to that rule is in the case of treasure salvage. Because sunken treasure has generally been lost for hundreds of years, while the original owner (or insurer, if the vessel was insured) continues to have an interest in it, the salvor or finder will generally get the majority of the value of the property. While sunken ships from the Spanish Main (such as Nuestra Señora de Atocha in the Florida Keys) are the most commonly thought of type of treasure salvage, other types of ships including German submarines from World War II which can hold valuable historical artifacts, American Civil War ships (the USS Maple Leaf in the St. Johns River, and the CSS Virginia in Chesapeake Bay), and sunken merchant ships (the SS Central America off Cape Hatteras) have all been the subject of treasure salvage awards.{{Citation needed|date=January 2009}} Due to refinements in side-scanning sonars, many ships which were previously missing are now being located and treasure salvage is now a less risky endeavor than it was in the past, although it is still highly speculative and expensive.

International conventions

Prior to the mid-1970s, most international conventions concerning maritime trade and commerce originated in a private organization of maritime lawyers known as the Comité Maritime International (International Maritime Committee or CMI). Founded in 1897, the CMI was responsible for the drafting of numerous international conventions including the Hague Rules (International Convention on Bills of Lading), the Visby Amendments (amending the Hague Rules), the Salvage Convention and many others. While the CMI continues to function in an advisory capacity, many of its functions have been taken over by the International Maritime Organization, which was established by the United Nations in 1958 but did not become truly effective until about 1974.

The IMO has prepared numerous international conventions concerning maritime safety including the International Convention for the Safety of Life at Sea (SOLAS), the Standards for Training, Certification, and Watchkeeping (STCW), the International Regulations for Preventing Collisions at Sea (Collision Regulations or COLREGS), Maritime Pollution Regulations (MARPOL), International Aeronautical and Maritime Search and Rescue Convention (IAMSAR) and others. The United Nations Convention on the Law of the Sea (UNCLOS) defined a treaty regarding protection of the marine environment and various maritime boundaries. Restrictions on international fishing such as International Convention for the Regulation of Whaling also form part of the body of conventions in international waters. Other commercial conventions include the "International Convention relating to the Limitation of the Liability of Owners of Sea-Going Ships", Brussels, 10 October 1957.^[5] and International Convention for Safe Containers.^[6]

Once adopted, most international conventions are enforced by the individual signatory nations, either through their Port State Control, or through their national courts. Cases within the ambit of the European Union's EMSA may be heard by the CJEU in Luxembourg. By contrast, disputes involving the Law of the Sea may be resolved at ITLOS in Hamburg, provided that the parties are signatories to UNCLOS.

Piracy

Merchant vessels transiting areas of increased pirate activity (i.e. the Gulf of Aden, Somali Basin, Southern Red Sea and Bab-el-Mandeb straits) are advised to implement Self-Protective measures in accordance with most recent Best Management Practices agreed upon by the members of the merchant industry, and endorsed by the NATO Shipping Centre, and the Maritime Security Centre Horn-of-Africa (MSCHOA)^[7]

Individual countries

Common law legal systems of Britain and the United States are in contrast to civil law legal systems which prevail in continental Europe and trace back to old Roman codified law. Although England's admiralty law was a development of continental civil law, its admiralty courts were common law courts, albeit somewhat distanced from the mainstream Kings Bench.

Most of the common law countries (including Pakistan, Singapore, India, and many other Commonwealth of Nations countries) follow English statute and case law. India still follows many Victorian-era British statutes such as the Admiralty Court Act 1861 [24 Vict c 10]. Whilst Pakistan now has its own statute, the Admiralty Jurisdiction of High Courts Ordinance, 1980 (Ordinance XLII of 1980), it also follows English case law. One reason for this is that the 1980 Ordinance is partly modelled on old English admiralty law, namely the Administration of Justice Act 1956. The current statute dealing with the Admiralty jurisdiction of the England and Wales High Court is the Supreme Court Act 1981, ss. 20-24, 37. The provisions in those sections are, in turn, based on the International Arrest Convention 1952. Other countries which do not follow the English statute and case laws, such as Panama, also have established well-known maritime courts which decide international cases on a regular basis.

Admiralty courts assume jurisdiction by virtue of the presence of the vessel in its territorial jurisdiction irrespective of whether the vessel is national or not and whether registered or not, and wherever the residence or domicile or their owners may be. A vessel is usually arrested by the court to retain jurisdiction. State-owned vessels are usually immune from arrest.

Canada

Canadian jurisdiction in the area of "Navigation and Shipping" is vested in the Parliament of Canada by virtue of s. 91(10) of the Constitution Act, 1867.

Canada has adopted an expansive definition of its maritime law, which goes beyond traditional admiralty law. The original English admiralty jurisdiction was called "wet", as it concerned itself with things done at sea, including collisions, salvage and the work of mariners, and contracts and torts performed at sea. Canadian law has added "dry" jurisdiction to this field, which includes such matters as:

Canadian jurisdiction was originally consolidated in 1891, with subsequent expansions in 1934 following the passage of the Statute of Westminster 1931, and in 1971 with the extension to "dry" matters.^[9]

Recent jurisprudence at the Supreme Court of Canada has tended to expand the maritime law power, thus overriding prior provincial laws based on the provinces' power over property and civil rights.^[10]

United States

Jurisdiction

The common element of those cases are that they require the court to exercise jurisdiction over maritime property. For example, in a Petitory and Possession Action, a vessel whose title is in dispute, usually between co-owners, will be put in the possession of the court until the title dispute can be resolved. In a Limitation Action, the shipowner will post a bond reflecting the value of the vessel and her pending freight. A sixth category, that of prize (law), relating to claims over vessels captured during wartime, has been rendered obsolete due to changes in the laws and practices of warfare.

Aside from those five types of cases, all other maritime cases, such as claims for personal injuries, cargo damage, collisions, maritime products liability, and recreational boating accidents may be brought in either federal or state court.

From a tactical standpoint it is important to consider that in federal courts in the United States, there is generally no right to trial by jury in admiralty cases, although the Jones Act grants a jury trial to seamen suing their employers.

Maritime law is governed by a uniform three-year statute of limitations for personal injury and wrongful death cases. Cargo cases must be brought within two years (extended from the one-year allowance under the Hague-Visby Rules), pursuant to the adoption of the Rotterdam Rules.^[12] Most major cruise ship passenger tickets have a one-year statute of limitations.

Applicable law

A state court hearing an admiralty or maritime case is required to apply the admiralty and maritime law, even if it conflicts with the law of the state, under a doctrine known as the "reverse-Erie doctrine". While the "Erie doctrine" requires that federal courts hearing state actions must apply substantive state law, the "reverse-Erie doctrine" requires state courts hearing admiralty cases to apply substantive federal admiralty law. However, state courts are allowed to apply state procedural law.^[13] This change can be significant.

Features of U.S. admiralty law

Cargo claims

Claims for damage to cargo shipped in international commerce are governed by the Carriage of Goods by Sea Act (COGSA), which is the U.S. enactment of the Hague Rules. One of its key features is that a shipowner is liable for cargo damaged from "hook to hook", meaning from loading to discharge, unless it is exonerated under one of 17 exceptions to liability, such as an "act of God", the inherent nature of the goods, errors in navigation, and management of the ship. The basis of liability for the shipowner is a bailment and if the carrier is to be liable as a common carrier, it must be established that the goods were placed in the carrier's possession and control for immediate carriage.^[14]

Personal injuries to seamen

Seamen injured aboard ship have three possible sources of compensation: the principle of maintenance and cure, the doctrine of unseaworthiness, and the Jones Act. The principle of maintenance and cure requires a shipowner to both pay for an injured seaman's medical treatment until maximum medical recovery (MMR) is obtained and provide basic living expenses until completion of the voyage, even if the seaman is no longer aboard ship.

Academic programs

There are several universities that offer maritime law programs. What follows is a partial list of universities offering postgraduate maritime courses: