Lloyd's Maritime and Commercial Law Quarterly
THE AUSTRALIAN ADMIRALTY ACT: PROJECT AND PRACTICE
James Crawford*
Introduction
It is a great honour to be asked to give the fifth Ebsworth & Ebsworth Maritime Law Lecture, and to do so in the centenary year of Ebsworth & Ebsworth itself. My college at Cambridge, Jesus College, is 500 years old this year; it is a very respectable record for a law firm to be a fifth as old as one of the older Oxbridge Colleges, and statistically from now on the gap will narrow; in another hundred years Ebsworths will be a third as old as Jesus College! In fairness I should add that Jesus College was built on the foundation of a nunnery which was 200 years older. (It is said that the number of nuns had dwindled to two, of whom one was pregnant.) And in a metaphoric sense that substantial part of Ebsworths’ reputation and practice which arises from maritime and shipping law, from the law of admiralty, is also built on a much older foundation. When the Australian Law Reform Commission studied the subject of admiralty in the 1980s, we had the satisfaction of recommending the repeal of legislation going back to the reign of Richard II,1 and some of the substance of admiralty, and much of its form, is of considerable vintage.
There is, or ought to be, a saying that it is unwise to inspect too carefully the foundations of old foundations. History and woodworm are only too likely to have had their effects. But there is, or ought to be, a countervailing saying, that if it has lasted so long it must be of some use. And this will be the theme of this lecture. However much the foundations of admiralty were historical, fortuitous and accidental—the product of a civilian legal tradition confined by the common lawyers to a few areas of practice, of which one was shipping2—the product of that historical process has been shown to be useful, and to have earned a place in a modern commercial context. Indeed as we will see, the continued defensibility of admiralty jurisdiction—in an international commercial arena in which harmonization and uniformity are pressing constraints—owes a good deal to international developments, themselves in a sense accidental.
To complete this chapter of accidents at the personal level, my own involvement in the law of admiralty was wholly accidental. I chanced to meet Michael Kirby at a conference—not itself very unusual—and was thereby appointed to the Australian Law Reform Commission, of which he was the Foundation President. But I was appointed to work on Aboriginal customary laws (of which I knew nothing). It turned out there was
* Whewell Professor of International Law and Fellow of Jesus College, Cambridge. This is the text of the Ebsworth & Ebsworth Maritime Law Lecture delivered on 6 August 1996 at the Australian Maritime Museum, Darling Harbour, Sydney.
1. 13 Ric II, st 1, c. 5 (1389); 15 Ric II, c. 3 (1391). See ALRC, Civil Admiralty Jurisdiction (1986) (hereafter “ALRC 33”), 9–10.
2. See M. J. Prichard & D. E. C. Yale (eds), Hale & Fleetwood on Admiralty Jurisdiction (London, Selden Society, vol. 108, 1992).
519