Ethics in Maritime Law - New Zealand

• Author: Judge Tom Broadmore
• Position: Judge of the District Court in Wellington, New Zealand. This paper was presented to the 2014 Annual Conference of the Maritime Law Association of Australia and New Zealand, held in Queenstown, New Zealand from 10-12 September 2014. In addressing some aspects of this paper I have drawn inspiration from an article by Marko Pavliha, ?Essay on ...
• Pages: 58-68

(2014) 28 ANZ Mar LJ

58

ETHICS IN MARITIME LAW – NEW ZEALAND

Judge Tom Broadmore

*

The Uluburun Wreck

Perhaps it was a dark and stormy night. The ship was nearing harbour. It was carrying a range of industrial

and commercial cargoes fr om a number of places. The helm sman seems to have lost situational awareness and the

ship struck a rocky headland.

It’s a story that sounds like it might end badl y, and it does; but the situation does not differ markedly from those

of hundreds of other casualties. Fo r me, I am reminded of the stranding of Pacific Charger on Ba ring Head, at the

entrance to Wellington Harbour, in Ap ril 1981.

The Uluburun ship sank. Sadly its crew seems to have perished an d the cargo was lost. It had struck Cape

Uluburun on the south coast of Turkey. Its wreck was not found until 1982. Give or take a few years, it sank in

about 1300BC.

Seeing the remains of this ship and its cargo in the Underwater Archaeological Museum in Bodrum, Turkey, in

June this year set me on a train of thought which has inspired part of what I have to say today. My hypothesis

thus far is this. From the evidence of this ship and other recent discoveries in the Eastern Mediterranean region,

inferences can be drawn as to the origins of maritime law. In particular, that it has a strong ethical foundation,

which marks it out as different from other branches of the law.

So today I aim to develop this hypothesis by reference to examples. And, for those concerned about CLE points, I

promise a lso to deal with eth ics in a more traditional way, by discussing the topic with reference to lawyers and

judges in New Zealand.

What Do We Mean By ‘Ethics’?

As lawyers, when we think of ethics in a legal context, our first thought is f or the ethical standards

expected of lawyers – in our case, lawyers practising maritime law. But that is too narrow a focus. Besides which,

perhaps fortunately, there is not much material to work with. When we talk of ethics, we are, I believe, talkin g

about the moral standa rds which govern behaviour. (I accept that these few words sweep ligh tly over two

and a half thousand years of philo sophical thought.)

In the context of maritime law, I address the way in which ethical considerations constrain behaviour in relation

first to participants in the m aritime sector – ship owners, cargo o wners, insurers, charterers, of ficers and crew,

port interests and all the other interests which go to make up the maritime world; secondly to maritime

lawyers; and finally to j udges.

Ethics and Participants in Maritime Activity

Whether they b e individuals or organisations, the moral constraints operating on the behaviour of participants in

maritime activity come from a number of sources:

1. Immemorial constraints. An obvious example is the duty laid on seaf arers to go to the aid of

those in distress, which now has a statut ory basis.

2. Constraints arising from international conventions, primarily the United Nations Convention on

the Law of the Sea,1 and international instruments of various kinds; a nd customary international

law.

* Judge of the District Court in Wellington, New Zealand. This paper was presented to the 2014 Annual Conference of the Maritime Law

Association of Australia and New Zealand, held in Queenstown, New Zealand from 10-12 September 2014. In addressing some aspects of

this paper I have drawn inspiration from an article by Marko Pavliha, ‘Essa y on Et hics in International Maritime Law’ (2012) 47

European Transport Law 461. I also express my thanks to Lucy Kean, Research Counsel at the District Court in Wellington, for

uncovering Mr Pavilha’s article and drawing my attention to other helpful material.

1 (UNCLOS) 1982, 1833 UNTS 3.