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Theory versus policy in the reform of admiralty jurisdiction

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
1753-6235
418-437
Staniland, Hilton
d4fb0241-7fe4-41cc-ab38-07c8506d74cb
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), 418-437. (doi:10.1504/IJPL.2013.056817).

Record type: Article

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.

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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

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Date deposited: 11 Feb 2013 16:51
Last modified: 14 Mar 2024 12:53

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Author: Hilton Staniland

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