- October 10, 2022
- |Law Everyday
THE ARCHAIC ADMIRALTY JURISDICTION LAWS OF NAMIBIA
When I hear the 1800s, the first thing that comes to my mind is the infamous Berlin conference of 1884 when European superpowers cut up Africa among themselves. That was a very long time ago, but when I look around, I am quickly reminded that what happened then is still applicable today. Today I write about some laws which were introduced centuries ago in Europe and how they, like the Berlin conference, reverberate today. I am talking about the Admiralty jurisdiction law applicable in Namibian.
Jurisdiction means the power or competence of a court to hear and determine an issue between parties. A typical court would have jurisdiction in relation to the amount, the parties, territory and subject matter of the dispute and these factors may limit the extent of the jurisdiction as well as the power of a court to enforce its judgments. Admiralty jurisdiction can be understood as the power or competence of a court to hear and determine matters, statutorily or customarily prescribed as maritime claims. Such jurisdiction is generally not limited in terms of territory, nationality of the parties or subject matter. Thus, it can be exercised over a dispute between foreign parties concerning a cause of action which arose outside the court’s area of jurisdiction (International Underwater Sampling Limited & another v MEP Systems (Pty) Ltd SA/2010 (SC)).
On 25 July 1890, the British Imperial Parliament passed the Colonial Courts of Admiralty Act of 1890, 53 & 54 Vic. c. 27. Section 2(1) of that Act says that every court of law in British possession which has unlimited civil jurisdiction shall be a court of Admiralty. Section 2(2) says that the jurisdiction of a Colonial Court of Admiralty would exist over the like places, persons, matters and things as the Admiralty jurisdiction of the High Court of England, whether existing by virtue of any statute or otherwise, and that a Colonial Court of Admiralty could exercise such jurisdiction in like manner and to as full and extent as the High Court in England. Clearly, these courts were to apply English maritime law.
By virtue of the Administration of Justice Proclamation 21 of 1919, all laws, including the Colonial Courts of Admiralty Act of 1890, applicable in South Africa were transferred to South West Africa (Namibia). In terms of
Article 140 of the Namibian Constitution, all laws in force immediately before the date of independence shall remain in force until repealed or amended by an Act of Parliament or until they are declared unconstitutional by a competent court. This means that the Namibian High court exercises jurisdiction in terms of the 1890 Act and applies English maritime law as it was in 1890. This Act confers limited jurisdiction to the High Court.
You may be wondering, why this topic? Well, Namibia is a Maritime State with a pulsating maritime industry. Having a maritime industry is good for the economic development of a country on the one side, but on the converse side, it brings a fountain of complicated needs and problems which lead to litigation. A wide range of problems are associated with shipping today than in the past, making it necessary to have updated maritime laws. The 1890 Act is not only archaic but extremely ineffective to provide for Admiralty jurisdiction in Namibia.
To start with, Admiralty jurisdiction as it was in 1890 is limited, uncertain and underdeveloped. To understand what the jurisdiction was, the court must go back in time and compile from the old sources the jurisdiction of the English High Court of Admiralty as crystalized in 1890. From these sources, one can pick out various heads of jurisdiction over which the Namibian Admiralty court can exercise its jurisdiction. It was stated in the Freiremar case that there’s only six maritime claims that can be entertained by a court in terms of the 1890 Act, being salvage, collision damages, seamen’s wages, bottomry, master’s wages and master’s disbursement. Surely, the vibrant maritime industry presents a lot more maritime claims than these, including foreign maritime claims, pilotage, loss of life at sea, personal injury at sea and damage done by and to a ship.
Section 7 of the 1890 Act empowers the High Court, sitting as an Admiralty court, to make rules regulating procedure and practice, but no such rules have been promulgated post-independence. The Vice Admiralty Rules made in terms of the 1840 and 1861 Acts, the Rules for the Vice-Admiralty Courts in Her Majesty’s Possessions Abroad of 1883, together with the Rules of the High Court of Namibia of 1990 as amended are applicable to admiralty practice and procedure. In terms of these rules, a person may lodge actions in rem or actions in personam but limited to the six maritime claims above. What happens if a claim falls out of that list? Furthermore, our admiralty jurisdiction rules are not liberal enough to ensure that:
a) Obligations duly incurred in other ports are not evaded by the perpetrator’s trickery; and
b) Namibia, a Maritime State, is a suitable or a potential forum for settling maritime matters. This will lead to underdevelopment of our maritime jurisprudence and a state of inertness.
This limited Admiralty jurisdiction cripples the administration of justice in general, and the handling of Namibia’s maritime affairs. This in turn will disadvantage Namibians who find themselves in maritime related disputes and make Namibia vulnerable to piracy, sabotage, terrorism, pollution as well as exploitation of marine resources. From all former British colonies/protectorates, Namibia is the only country still applying 1890 Act, centuries later.
Fedden Mainga Mukwata – Legal Pundit