9.1 Introduction

9.1.1 Jurisdiction generally

The developed law of mortgages, whether of property or ships, is the joint product of common law, equity and statute influenced by rules about usury. But mortgages were made and executed on land—not at sea. The statutes of Richard II confined the Admiral's Court to things done upon the sea in any event. In The Exmouth ¹ Sir Christopher Robinson in the High Court of Admiralty said that the interest of a mortgagee “is not a question for the Court of Admiralty”. The US Supreme Court explained this in Bogart v Steamboat John Jay ² : this was not a jurisdiction denied by the jealousies of the common law courts but a mere mortgage, other than that of an hypothecated bottomry, “is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it without reference to navigation or perils of the sea”. So mortgages lacked maritime character. However, as explained in the Canadian decision in Wolfe v SS Clearpool, ³ the position in England was altered first by the Admiralty Court Act 1840 and then by the Admiralty Court Act 1861, and admiralty gained both in rem and in personam jurisdiction in ship mortgage cases. But still no maritime lien was created.