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The development and comparative aspects of Australian Maritime Law

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Wong, JCK (1987) The development and comparative aspects of Australian Maritime Law. PhD thesis, University of Tasmania.

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Abstract

The development of Australian maritime law was closely associated
with Britain's Empire-building. To promote, and later consolidate,
trade and security links within til£'1 Empire, a large merchant
fleet to be manned almost t exclusively by British seamen was created.
For merchant shipping to operate as an effective and coherent force,
a single body of law was specially enacted to regulate this enterprise.
Maritime law was a domain for the Parliament of Great
Britain and later the United Kingdom. The nature and content of
this subject, as imported, administered and developed in the Australian
colonies, and later States, are analysed in the light of the Imperial
goals. This body of law developed and changed in conformity with
the Imperial objectives. The use of paramount legislation, the invalidation
of inconsistent colonial laws and the establishment of
courts in the colonies, and later States, to administer Imperial maritime
law were clearly part of a coordinated Imperial strategy. The mechanisms
for exacting compliance by Commonwealth legislators continued
until the Statute of Westminster 1931 (Imp.) was adopted.
One of the main problems which the High Court had to resolve
was the recurring conflict between Commonwealth and State legislation
on shipping. The cause in most cases was the lack of precision
between the powers conferred under the Commonwealth Constitution
and those exercisable by meeting the requirements of the Imperial
legislation. Several High Court decisions have significantly enlarged
the role of Commonwealth legislation at the expense of State legislative
powers.
The major differences between the maritime laws of Australia
and the United Kingdom are traceable to several factors. First
there was delay or failure by the Commonwealth and State Parliaments
to extend to Australia or the States the operation of those provisions
of' the United Kingdom's legislation that would not otherwise
apply. Second, the existing backwardness of Australian maritime law
has stemmed from a prolonged indifference to a number of international
conventions which have produced vital changes in maritime
law. Third, Australia's departure from the strict "British ship" concept has
led to a marked relaxing of the requirements for owning
Australian ships or shares therein.
Wherever considered appropriate, emphasis is placed on the
advantages which proceedings in rem have over common law actions.
The comparative analysis has brought to light many anomalies. With
regard to a number of maritime matters the laws of the Commonwealth
and several States are inconsistent. In many instances, it is patently
illogical for penalties and strict liability to be imposed personally on
shipowners and the master under the anti-pollution laws. Often the
enforcement of such laws may also result in the unjustified destruction
of maritime property, with the consequent loss of the existing maritime
liens and other claims against the ship and freight. A workable
solution may be found by integrating anti -pollution legislation with
maritime law. Moreover, the methods for enforcing payment of statutory
compensation for accidental injury or death suffered by seamen
are examined with the view to strengthening the position of
claimants.
The various problem areas and anomalies highlighted are dealt
with in the context of the reforms and changes which are deemed
desirable to upgrade Australian maritime law. Chapter Nine discusses
the important benefits and new protection that will be conferred on
maritime claimants when the Draft Admiralty Bill 1985 enacted as
law.

Item Type: Thesis (PhD)
Additional Information:

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Date Deposited: 18 Dec 2013 04:26
Last Modified: 15 Sep 2017 01:06
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