Maritime Law History

Maritime Law History

Introduction to Maritime Law History

The origins of maritime law go back to antiquity. Because no country has jurisdiction over the seas, it has been necessary for nations to reach agreements regarding ways of dealing with ships, crews, and cargoes when disputes arise. The earliest agreements were probably based on a body of ancient customs that had developed as practical solutions to common problems. Many of these customs became part of Roman civil law. After the fall of the Roman Empire, maritime commerce was disrupted for about 500 years.

After maritime activity was resumed in the Middle Ages, various disputes arose and laws were formulated to deal with them. Gradually the laws of the sea were compiled; among the best-known collections of early maritime law are the Laws of Oleron and the Black Book of the Admiralty, an English compilation prepared during the 14th and 15th centuries. Special courts to administer sea laws were set up in some countries. In Britain today, maritime law is administered by courts of the admiralty.” [1]

Consulado del Mar

In 1258 James I. of Aragon empowered Barcelona to issue its famous Consulado del Mar, a code of maritime law recognized as authoritative by many European states. Consuls represented Barcelona at the principal commercial centres on or near the Mediterranean; and the city was among the first communities to adopt the practice of marine insurance.

Origins of the Field

The Civilian Origins of Maritime Law

Maritime law as civilian

(…) Mritime law was civilian in its original source, concept, and style and retains much of that tradition today in both the general maritime law and in national statutes and international conventions.

The early maritime codes

The source of the maritime law can be seen in the early maritime codes.

All the ancient sea laws were codes or “coutumes” and were civilian in concept, style and drafting. Examples are – the Rhodian law (circa 800 B.C.); Greek law (4th century B.C.); the maritime provisions in Roman law; (the Digests of Justinian, 6th century A.D.); the Byzantine/Rhodian Sea-Law (8th century A.D.); the Basilica (9th century A.D.), the Italian City Codes of Trani (1063), Amalfi (1150) and Pisa (1160); the Ley Maryne, being the customs of various cities, including Newcastle-upon-Tyne (1100-1135), Ipswich (1201) and certain Scottish cities; the Rôles of Oléron (1190); the Assises of the Bourgeois of the Kingdom of Jerusalem (1200); the Consolato del Mare (end of 13th century); the Laws of Visby (first printed 1505); le Guidon de la Mer (1556); l’Ordonnance de la Marine (1681): the French Code de Commerce (1807). All of these statutes were collected and kept in “The Blacke Booke of The Admiralty” (mid 15th century ) in Doctors’ Commons in London and cited in the High Court of Admiralty in London and elsewhere. Collected again by Sir Travers Twiss, they were published in four volumes in the Black Book of the Admiralty from 1871 to 1876.

Early civilian concepts in the maritime law

Many modern-day principles are still found today in the general maritime law or in national statutes or international conventions.

For example, Rhodian law, which was probably an unwritten lex maritima, had three of its principles of general average, recorded in the Digest of Justinian (jettison, cutting the mast and cutting the anchor) and this is the authority today for general average, because the terms of general average are not set out in any national statute or international convention. (The York/Antwerp Rules are merely contactual terms of general average, which are applicable only by agreement of the parties, usually in a bill of lading or charterparty.)

Roman law gave us and still gives us, the bottomry bond, the shipbuilding lien, a lien for ship repairs, a lien for supplies for the crew and a freight lien on cargo.

The Rôles of Oléron gave and still gives us, amongst other things, more details on bottomry and more liens, the principles of salvage and the rights between partners in the ownership of a ship (probably the beginnings of company law).

The Admiralty had in particular the civilian saisie conservatoire (the seizure before judgment – the attachment) which was and is unknown in the common law.

Each code, in turn, built on its predecessor and each code itself evolved. For example, the oldest existing copy of the Rôles of Oléron has 24 articles and the most recent about 35 articles. The version published in 30 Fed. Cas. 1171 et seq. has 47 articles. There are 30 known copies of the Rôles extant today – one is in Spain, France (17), Flanders (2), the Netherlands (1) and England (10)). It is the general maritime law as it has evolved over the centuries that we have today.

The Admiralty law of England

The Admiralty law of England, it was noted above, was received into the general maritime law of the United States at the time of the American Revolution and was confirmed by the Constitution and a statute of the first Congress in 1789.

But what was that law?

It was the law adjudged in the Admiralty Court, (Doctors’ Commons), where only Doctors of Civil Law could plead and take part. Theirs was the law found in the Blacke Booke of Admiralty, as it was ruled on in subsequent recorded judgments and in the occasional laws adopted by Parliament. There is an excellent new text of the Selden Society which has collected and commented on those decisions (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII of the Selden Society, London, 1992).

Thus the general maritime law advanced and evolved in England in the civilian court based on the early civilian admiralty codes.

The Influence of The Common Law On Maritime Law

Although Doctors’ Commons was civilian in origin, structure and style, the common law had very considerable influence on the law of the Admiralty Court. This was because the common law courts, although younger than the commercial, admiralty, probate and church courts, were very jealous of their jurisdiction, and wished to restrict it. The courts of common law fought even with Chancery (the court of equity). In particular, Sir Edward Coke, the Lord Chief Justice of Common Pleas, used his great authority and prestige to limit Admiralty jurisdiction. His principal weapon was the writ of prohibition, which took away considerable jurisdiction from the Admiralty Court. As time passed, the Court even lost the right to issue writs of attachment. Thus much maritime law was practised in the common law courts by common lawyers, particulary in respect of matters arising ashore (and not outside the sight of land), such as marine insurance, stevedoring and chartering.

Other examples of the common law influence are the ship mortgage, the maritime tort lien, the writ in rem and the “no cure/ no pay” principle in salvage. [2]

Resources

Notes and References

  1. Information about Maritime Law History in the Encarta Online Encyclopedia
  2. Maritime Law as a Mixed Legal System (with particular reference to the distinctive nature of American maritime law, which benefits from both its civil and common law heritages), William Tetley, Q.C. (1999) 23 Tul. Mar. L.J. 317

Guide to Maritime Law History


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