Theory versus policy in the reform of admiralty jurisdiction
Theory versus policy in the reform of admiralty jurisdiction
The enforcement of maritime claims in English admiralty law and jurisdiction is based on the action in rem and the action in personam. The nature of, and relationship between, these actions is traditionally explained on the basis of competing fictions and theories, in particular, the personification theory and the procedural theory, which lead to widely different results in the enforcement of maritime claims. In this respect, many Commonwealth jurisdictions have departed from English law. It is argued that the admiralty jurisdiction and law of Namibia is the same as English law as of 1890; and, in drafting new legislation to repeal and replace the law of 1890, the author contends that the legislation should reflect clear policy objectives and that the competing and unreliable fictions and theories should not serve as a basis for legislative reform. The draft legislation is then subjected to detailed analysis to determine that the policy objectives (serving the interests of both national and international litigants), are achieved.
admiralty jurisdiction, colonial courts of admiralty act 1890, namibia, maritime lien, ships, ship-owners, procedural theory, personification theory, in rem, english admiralty law, maritime claims, commonwealth jurisdictions, policy objectives, law reform
418-437
Staniland, Hilton
d4fb0241-7fe4-41cc-ab38-07c8506d74cb
2013
Staniland, Hilton
d4fb0241-7fe4-41cc-ab38-07c8506d74cb
Staniland, Hilton
(2013)
Theory versus policy in the reform of admiralty jurisdiction.
International Journal of Private Law, 6 (4), .
(doi:10.1504/IJPL.2013.056817).
Abstract
The enforcement of maritime claims in English admiralty law and jurisdiction is based on the action in rem and the action in personam. The nature of, and relationship between, these actions is traditionally explained on the basis of competing fictions and theories, in particular, the personification theory and the procedural theory, which lead to widely different results in the enforcement of maritime claims. In this respect, many Commonwealth jurisdictions have departed from English law. It is argued that the admiralty jurisdiction and law of Namibia is the same as English law as of 1890; and, in drafting new legislation to repeal and replace the law of 1890, the author contends that the legislation should reflect clear policy objectives and that the competing and unreliable fictions and theories should not serve as a basis for legislative reform. The draft legislation is then subjected to detailed analysis to determine that the policy objectives (serving the interests of both national and international litigants), are achieved.
Text
__userfiles.soton.ac.uk_Users_spd_mydesktop_Policy and the reform of admiralty law.docx
- Accepted Manuscript
Text
Staniland Int J Private Law Vol 6 No 4 2013 418-437.pdf
- Version of Record
Restricted to Repository staff only
Request a copy
More information
Published date: 2013
Keywords:
admiralty jurisdiction, colonial courts of admiralty act 1890, namibia, maritime lien, ships, ship-owners, procedural theory, personification theory, in rem, english admiralty law, maritime claims, commonwealth jurisdictions, policy objectives, law reform
Organisations:
Southampton Law School
Identifiers
Local EPrints ID: 347834
URI: http://eprints.soton.ac.uk/id/eprint/347834
ISSN: 1753-6235
PURE UUID: 082ddbe6-2bc8-4630-91b5-c6067639a364
Catalogue record
Date deposited: 11 Feb 2013 16:51
Last modified: 14 Mar 2024 12:53
Export record
Altmetrics
Contributors
Author:
Hilton Staniland
Download statistics
Downloads from ePrints over the past year. Other digital versions may also be available to download e.g. from the publisher's website.
View more statistics