Theory versus policy in the reform of admiralty jurisdiction

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.