Admiralty or maritime law concern legal rules that relate to maritime matters. Countries, especially those that have access to the sea have enacted and developed laws that deal with matters such as marine insurance, carriage of goods by sea, seaworthiness of ships, matters of safety of personal at sea, salvage, maritime liens and many others. In admiralty, jurisdiction can be understood to be the power or competence of a court to hear and determine matters, statutorily or customarily prescribed, as “maritime claims”.1 Admiralty jurisdiction may be exercised over a dispute between two peregrines concerning a cause of action which arose outside the court’s area of jurisdiction. In the case of Kandagasabapathy v MV Melina Tsiris2 it was said that, “this court, sitting as a Court of Admiralty, has jurisdiction even though the claim is between foreigners and in terms of a contract concluded outside its jurisdiction; in short, even though neither parties nor the subject matter of the claim have any connection with this country”. Furthermore, admiralty jurisdiction is also discretionary, and an admiralty court may, in appropriate circumstances, decline to exercise its jurisdiction, leaving it to the plaintiff to enforce his right in some other competent forum.3 It is important that when maritime cases are brought before court, the court should exercise jurisdiction. In addition, the court must not only have jurisdiction but also be able to enforce a maritime claim that has been decided by a court of another jurisdiction. These paper discuses the historical background of admiralty jurisdiction in Namibia and the applicable law.
Historical background of admiralty jurisdiction in Namibia and the applicable law Maritime law begins with the presence of the European at the Cape of Good Hope in 1652. The Dutch settled at the Cape of Good Hope and with the Dutch came the application of Roman-Dutch law. This law (Roman-Dutch law) was applied under the legal authority of Dutch Estates-General.4 However, South Africa was not only a colony of the Dutch, it was also a British colony. Thus, after the Dutch occupation of the Cape of Good Hope continued for a century and a half, South Africa was also colonized by the British in 1806. During this 154 years period, the laws of the areas of South Africa falling under the Dutch rule developed in parallel with those of Europe, in particular English law.5 The admiralty legislation in Namibia can be traced back to the start of colonization of the country in the 18th century. While the recorded history of Namibia’s admiralty jurisdiction indicate that it was important from South Africa, it is assumed that before Namibia became a South African colony, the German colonial authorities implemented the admiralty legislation applicable in Germany at the time. However, with the presence of English authorities in Walvis Bay that was annexed by the British in 1870 which later became part of Cape of Good Hope, English admiralty law was applied at the enclave of Walvis Bay. After the World War 1, Namibia became a c-mandate territory under the League of Nations. Accordingly, the laws regarding the administration of admiralty affairs in South Africa became applicable in Namibia by virtue of the Administration of Justice Proclamation 21 of 1919. This proclamation also transferred the Roman Dutch law applicable at the Cape of Good Hope at that time to Namibia.6 As far as admiralty matters are concerned, initially, the applicable law in this respect was English law that was transferred to South Africa. This was because the Admiralty Court was only in England at that time. For instance, the Admiralty Court Act of 1840 stipulates that all courts in British colonies that applied English law had powers for the purposes of admiralty jurisdiction as well as purposes of other civil jurisdiction.7 In terms of this provision, it means that all courts that exercised admiralty jurisdiction...
Please join StudyMode to read the full document