Maritime Law Scope

Maritime Law: The Scope of Maritime Law

Introduction to Maritime Law Scope

Liability for common-law wrongs is enforced by the maritime law of the United States and the United Kingdom (see Common Law; Tort). Maritime torts include all illegal acts or direct injuries arising in connection with commerce and navigation occurring on navigable waters, including negligence and the wrongful taking of property. The law permits recovery only for actual damages. Maritime law also recognizes and enforces contracts and awards damages for failure to fulfill them.

The adjustment of the rights of the parties to a maritime venture in accordance with the principles of general average, which pertain to the apportioning of loss of cargo, is also an important function of maritime courts, and the doctrines pertaining to general average are among the most important of the maritime law. The British admiralty courts have acquired jurisdiction by statute over crimes committed on the high seas outside the territorial waters of the United Kingdom. Similar jurisdiction has been conferred by Congress on the U.S. federal district courts. International agreements have been made to handle the problems of safety at sea, pollution control, salvage, rules for preventing collisions, and coordination of shipping regulations.” [1]

Maritime Law System

Maritime Law as a Complete Legal System

It is essential at the outset to make a basic constatation – that maritime law is a complete legal system, just as the civil law and the common law are complete legal systems. Maritime law incidentally is much older than the common law and probably contemporaneous with the advent of the civil law.

That maritime law is a complete legal system can be readily seen from its component parts. For centuries maritime law has had its own law of contract – of sale (of ships), of service (towage), of lease (chartering), of carriage (carriage of goods by sea), of insurance (marine insurance, being the precursor of insurance ashore), of agency (ship chandlers), of pledge (bottomry and respondentia), of hire (of masters and seamen), of compensation for sickness and personal injury (maintenance and cure) and risk distribution (general average), etc., etc. It is and has been a national and an international law (probably the first private international law). It also has had its own public law and public international law.

Maritime law has and has had, as well, its own courts and procedures from earliest times, so that the Rhodian law of (c. 800 B.C) and the Byzantine Rhodian Law (c. 800 A.D.) both crossed borders and applied in the whole western commercial world. The pied poudre (“piepowder”) courts of England tried cases between merchants bringing wine and wares to and from ports of England and of the Atlantic coasts of what is now Spain, France, Belgium and Holland. The Rôles of Oléron, written in Oléron, France (near La Rochelle c. 1190), were the law in those seas, while the Consolato del Mare (c. 1300) was the law of the Mediterranean.

Maritime law with is broad substantive and adjectival scope, its own courts and jurisdiction and its own private and public law, is indeed a complete legal system.

The Two-fold Composition of Maritime Law

A second basic constatation of this paper is that maritime law, whether it be national or international, is composed of two constituent parts:

Firstly – the general maritime law, that great ius commune, which has evolved from various maritime codes including Rhodian law (c. 800 B.C.), Roman law, the Rôles of Oléron (c. 1190), the Ordonnance de la Marine (1681) etc., all of which were relied on in Doctors’ Commons, the English Admiralty Court and the maritime courts of Europe. This lex maritima, part of the lex mercatoria, or “Law Merchant” as it was usually called in England, was the general law (ius commune) applicable in all countries of Western Europe until the fifteenth century, when the gradual emergence of nation states caused national differences to begin creeping into what had been a virtually pan-European maritime law system. That system had the immense advantage of averting conflict of laws problems, because uniform principles and rules were applied to resolve disputes in all countries.

There is also a modern lex maritima. Today’s general maritime law consists of the common forms, terms, rules, standards and practices of the maritime shipping industry – standard form bills of lading, charterparties, marine insurance policies and sales contracts are good examples of common forms and the accepted meaning of the terms, as well as the York/Antwerp Rules on general average and the Uniform Customs and Practice for Documentary Credits. Much of this contemporary lex maritima is to be found in the maritime arbitral awards rendered by arbitral tribunals around the world by a host of institutional and ad hoc arbitral bodies. Increasingly, arbitrators are following previous awards in applying the law to new arbitrations, thereby contributing, consciously or unconsciously, to the emergence of a modern maritime ius commune.

Secondly – maritime statute law, whether national or international.

Thus maritime law today consists of the ever-evolving general maritime law, on one hand, and national maritime statutes and international maritime conventions, on the other.

Precedence of National Statutes and International Conventions

A third essential, basic constatation concerning maritime law is that in the case of any conflict between the two sources of maritime law, it is national or international law which has precedence over the general maritime law.

The Emperor Antoninus (138-161 A.D.) said it succinctly (as recorded in the Digest of Justinian):

“I, indeed am Lord of the world, but the law is lord of the sea. Let it be judged by Rhodian Law, concerning nautical matters, so far as no one of our laws is opposed.” (emphasis added)

Thus Rome received Rhodian maritime law as its own, in so far as it did not contradict Roman law existing or future.

In the United States, the precedence of the statutory over the general maritime was stated by the Supreme Court in Panama Railroad 264 U.S.375 at p. 386, 1924 AMC 551 at p. 555 (1924): “…when the Constitution was adopted, the existing maritime law became known as the law of the United States ‘subject to power in Congress to alter, qualify or supplement it as experience or changing conditions might require.’

See also Detroit Trust Co. v. Barlum S.S. Co. 293 U.S. 21 at p. 43, 1934 AMC 1417 at 1428-29 (1934); Schiffaharts Leonhardt & Co.v. A. Bottacchi 773 F.2d 1528 at pp. 1531-1532, 1986 AMC 1 at pp. 5-6 (11 Cir. 1985 en banc).

In Canada, the precedence of national statutes over the general maritime law can be seen today in sect. 2(1) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads:

“In this Act ‘Canadian maritime law’ means that law the was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act… or any other statute, or that would have been so administered if that Court had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this or any Act of the Parliament.” [2]

Resources

Notes and References

1. Information about Maritime Law Scope 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 Scope

Resources

Notes

1. William Tetley, Q.C., Mixed jurisdictions : common law vs civil law (codified and uncodified).

See Also