Case: De Lovio v Boit 7 F.Cas 218 (1815)
Outcome: discussed
This view had its roots in the seminal decision of Story J sitting as a Circuit Judge in De Lovio v Boit 7 F.Cas 218 (1815) in rejecting the view that had up to that point been expressed as to the linkage of the phrase "of admiralty and maritime jurisdiction" in Article III section 2 of the United States Constitution to the character and content of English jurisdiction at the time of Independence: see for example United States v McGill 4 US 426 (1806) at 429-30 (Washington J sitting as a Circuit Judge). Nevertheless, as can be seen from all the judgments in the Federal Court and the High Court in The 'Shin Kobe Maru' , the discerned width and scope of s 76(iii) was a product of the liberal construction of a provision of the Australian Constitution , though set against a context of the recognised international character of the jurisdiction amongst maritime nations of the world as incorporated in the United States Constitution , from which source (Article III Section 2) the words of s 76(iii) were taken. 50 The rich international character of the jurisdiction can be seen in the expression of the scope of the jurisdiction by Story J in De Lovio v Boit at 442-43: The clause however of the Constitution not only confers Admiralty jurisdiction, but the word `maritime' is superadded, seemingly ex industria, to remove every latent doubt. `Cases of maritime jurisdiction' must include all maritime contracts, torts and injuries, which are in the understanding of the common law, as well as of the Admiralty, `causae civiles et maritimae'. In this view there is a peculiar propriety in the incorporation of the term `maritime' into the Constitution . The disputes and discussions, respecting what the Admiralty jurisdiction was, could not but be well known to the framers of that instrument ... One party sought to limit it by locality; another by the subject matter. It was wise, therefore, to dissipate all question by giving cognisance of all `cases of maritime jurisdiction', or, what is precisely equivalent, of all maritime cases. Upon any other construction, the word `maritime' would be mere tautology; but in this sense it has a peculiar and appropriate force ... The language of the constitution will therefore warrant the most liberal interpretation; and it may not be unfit to hold, that it had reference to that maritime jurisdiction, which commercial convenience, public policy, and national rights, have contributed to establish, with slight local differences, over all Europe; that jurisdiction, which under the name of consular courts, first established itself upon the shores of the Mediterranean, and, from the general equity and simplicity of its proceedings, soon commended itself to all the maritime states; that jurisdiction, in short, which collecting the wisdom of the civil law, and combining it with the customs and usages of the sea, produced the venerable Consolato del Mare, and still continues in its decisions to regulate the commerce, the intercourse and the warfare of mankind. ... At all events, there is no solid reason for construing the terms of the Constitution in a narrow and limited sense, or for ingrafting upon them the restrictions of English statutes, or decisions at common law founded on those statutes, which were sometimes dictated by jealousy, and sometimes by misapprehension, which are often contradictory, and rarely supported by any consistent principle. The advantages resulting to the commerce and navigation of the United States, from a uniformity of rules and decisions in all maritime questions, authorise us to believe that national policy, as well as juridical logic, require the clause of the Constitution to be so construed as to embrace all maritime contracts, torts and injuries, or, in other words, to embrace all those causes, which originally and inherently belonged to the Admiralty, before any statutable restriction. 57 It will be necessary to return to aspects of s 4. For present purposes, it is only necessary to emphasise that it was not intended that the closed lists in s 4(2) and (3) would exhaust the scope of s 76(iii). Rather, the lists of claims were those which, conformably with the International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-Going Ships done at Brussels on 10 May 1952 (the "1952 Arrest Convention") and with comparative international admiralty practice of major trading partners, were seen to be appropriate to found the procedure central to Admiralty practice, the action in rem, and the consequential availability of arrest. (For instance, there would seem little doubt that one class of maritime contracts concerned with maritime commerce is marine insurance. Indeed, De Lovio v Boit itself is authority for the proposition, never doubted thereafter in the United States, that a policy of marine insurance is a maritime contract and therefore "of admiralty jurisdiction". Claims concerning disputes about marine insurance claims are not, however (with the exception of premiums or calls in s 4(3)(s) of the Act) general maritime claims.) 58 It is also important to understand the international or world-wide nature of the reach of the Act effected by s 5 which is in the following terms: (1) Subject to the succeeding provisions of this section, this Act applies in relation to: (a) all ships, irrespective of the places of residence or domicile of their owners; and (b) all maritime claims, wherever arising. (2) This Act does not apply in relation to a proceeding commenced before the commencement of this Act. (3) This Act does not apply in relation to a cause of action that arose: (a) in respect of an inland waterways vessel; or (b) in respect of the use or intended use of a ship on inland waters. (4) Paragraph (3)(b) does not have effect in relation to a cause of action if, at the time when the cause of action arose, the ship concerned was a foreign ship. 59 Section 12 of the Act deals with "associated jurisdiction". It is in the following terms: The jurisdiction that a court has under this Act extends to jurisdiction in respect of a matter of Admiralty and maritime jurisdiction not otherwise within its jurisdiction that is associated with a matter in which the jurisdiction of the court under this Act is invoked.