Maritime Law in a Historical Perspective

1. Maritime Law in a Historical Perspective September 5, 2014 OlenaBokareva

2. What is Maritime Law? • Maritime law provides the legal framework for maritime transport. • Body of legal rules and concepts concerning the business of carrying goods and passengers by water • The word ”maritime” which is derived from Latin means ”of or pertaining to the sea” • Maritime law refers to the entire body of laws, rules, legal concepts and processes that relate to the use of marine resources, ocean commerce, and navigation

3. Other appellations of maritime law • Shipping law: law related to ships and shipping. • The term is used interchangeably with maritime law. • Admiralty law: originating in the office of the Lord High Admiral – root meaning derived from Arabic through the Latin languages. • Admiralty law is the term used in jurisdictions with Anglo – Saxon legal traditions

4. Other appellations of maritime law • Refers to the body of law including procedural rules developed by the English courts of Admiralty in their exercise of jurisdiction over matters pertaining to the sea. • Historically the jurisdiction was distinctively different from the jurisdiction of the common law courts. • The substantive admiralty law has its roots in continental civil law arising from disputes litigated in the courts of the “Cinque Ports” on the shores of England.

5. Other appellations of maritime law • Shipping law or maritime law is often divided into two categories colloquially termed “wet” and “dry”. • The wet laws, otherwise referred to as admiralty law comprise such subject matters as collision and salvage; dry laws comprise the commercial maritime law. • Commercial maritime law is divided into two subjects, namely, carriage of goods by sea and marine insurance.

6. Other appellations of maritime law • Carriage of goods by sea is subdivided into two categories, namely, carriage under bills of lading and carriage under charterparties. • Historically the entire body of private maritime law is derived from the Roman law referred to as the lex maritima and the lex mercatoria.

7. Public and Private Maritime Law • Public international maritime law is generally referred to as the law of the sea (LOS). • LOS deals with the oceans and its multifarious uses and resources in terms of broad fundamental principles. • The bifurcation between public and private maritime law is considered to be artificial and inconsequential by some scholars.

8. Public and Private Maritime Law • Professor Thomas J Schoenbaum is of the view that maritime law “… has taken on a new meaning, to refer to the entire body of laws, rules, legal concepts and processes that relate to the use of marine resources, ocean commerce and navigation”. • Professor Edgar Gold is of the view that in the new law of the sea codified through UNCLOS, “marine transport has been discussed in an almost abstract manner as if it did not really fit or belong within the public domain but needed to be confined to the more private region of international commerce”.

9. Public and Private Maritime Law • Some 77 years ago Professor Sanborn stated that maritime law addresses “the whole law which deals chiefly with the legal relations arising from the use of ships”. But he points out that earlier it also addressed the primitive ancestors of some branches of our modern commercial law including “the germs of that public law which we today style international law”. • It is apparent therefore that not all maritime law subject matters neatly fall within the “public” or “private” categorizations.

10. Maritime law subjects

11. The Genesis of Maritime Law • According to maritime historians our ancestors discovered the phenomenon of floatation and used floating logs as means of transportation by water before they invented the cart and the wheel. • Seafaring is among the oldest professions in the world. • The history of maritime law is lost in antiquity. • Historically law has evolved from custom and practice defined as “group behaviour in a societal setting tempered by collective perceptions of ethics and morality”.

12. The Genesis of Maritime Law • Even in primitive societies customs and practices were institutionalized which led to legal processes and legal systems. • Laws are substantive, legal systems provide the framework for their effectuation. • Legislation is formulated law codifying customs and practices.

13. Early Maritime Customs and Code • The earliest codified maritime laws are found in the Babylonian Code of Hammurabi (between 2000 and 1600 B.C.), the ancient Hindu Code known as the Manu Sanghita and, in the western hemisphere the Rhodian Sea Law. • Historians have recorded the existence of rules relating to marine collisions in the Code of Hammurabi and the practice of bottomry and leases of ships in the Manu Sanghita.

14. Early Maritime Customs and Codes • In the pre-Rhodian era historians had recorded the existence of brisk maritime trade during the late third and second millennium B.C. between the peoples of the Indus Valley Civilizations of Harappa and Mohenjo-Daro and the traders in the Persian Gulf and Arabian Sea areas and also with Sumerians and Akkadians of the Tigris-Euphrates basin. • Egyptians, Phoenicians and Greeks successively maintained maritime supremacy in the Mediterranean region.

15. Early Maritime Customs and Codes • Phoenicians developed maritime customs which remained the basis of much Mediterranean maritime law in subsequent eras. • Phoenicians dominated the Mediterranean sea for almost a thousand years; they occupied Cyprus, settled in Malta and founded Carthage in North Africa. They were eventually displaced by the Greeks. • As early as 400 B.C. the Greeks had established maritime courts in Athens known as dikai emporikai with orderly rules and procedures.

16. Early Maritime Customs and Codes • Cohen notes that the Athenian Maritime courts of the fourth century were characterized by “rapidity, supra nationality and rigour”. • The courts enforced bottomry and respondentia bonds which were the antecedents of marine insurance and mortgage. • There were contracts of foenus nauticum or marine usury which were loans for coverage of maritime risks • James Reddy notes that foenus nauticum, bottomry and respondentia were practiced in Hindu India as early as 900 B.C. as recorded in the Manu Sanghita.

17. Rhodian Code • The antiquity of the Rhodian Code is disputed by historians but there is no doubt that it was the earliest maritime code in the western hemisphere. • Much of the maritime law of the Greek city states including Athens and Alexandria were derived from the Rhodian sea law. • The Rhodians became a dominant maritime force in the Aegean Sea and reached the peak of their prosperity and achievements in the third century B.C.

18. Rhodian Code • It was eventually incorporated into the Roman legal system and prevailed through to the Byzantine era. Evidence of this is found in the Justinian digests under the caption De Lege Rhodia de Jactu (i.e., of the Rhodian Law of Jettison). • “By the Rhodian law it is provided that if, for the sake of lightening a ship, a jettison of goods has been made, what has been given for all shall be made up by the contribution of all”. • Antoninus answers Eudaemon “I, indeed, am lord of the world, but the law is the lord of the sea. Let it be judged by the Rhodian law, prescribed concerning nautical matters, so far as no one of our laws is opposed”.

19. Rhodian Code • Robert Benedict, Gilmore and Black and earlier Bynkershoek and Pardessus refute the proposition that Roman maritime law was derived from the Rhodian sea law and considered it a Greek fabrication.

20. Roman Law • Romans were not a seafaring people; they were an agrarian society where agricultural pursuits were held in high esteem and maritime ventures were viewed with horror. In later years, however, having conquered most of the then know western hemisphere they developed a sound body of maritime and commercial law. • The Justinian Digest and the writings of eminent contemporary lawyers such as Cicero and Servius covered a wide spectrum of subject matters.

21. Roman Law • The laws were not codified as such but were promulgated through the decisions of juri-consuls and Praetorian Edicts. Eventually, positive legislative sanction was given by the Emperor Augustus. • The law covered descriptions of vessels, trading areas, vessel acquisition, ship construction, conveyance or transfer by sale or bequest, co-ownership, partnership, joint and several liability, owners vicarious liability for fault of master and crew, maritime liens or privilege, priority rankings, contract of affreightment, demise, voyage and time charters, carrier liability, force majeure exceptions including damnum fatale caused by ship wreck or piracy.

22. Roman Law • The law also included the inherited Rhodian laws of bottomry and respondentia (foenus nauticum), pilotage, collisions and the lex aquilia.

23. The Consolato del Mare of Barcelona • During the tenth and eleventh centuries Barcelona rose to prominence in maritime trade and commerce and adopted usages and customs from Marseilles and Pisa. • The Consules Maris was conferred with jurisdiction over maritime matters separate from the ordinary jurisdiction and a tribunal was instituted to hear appeals from the decisions of the Consules.

24. The Consolato del Mare of Barcelona • The jurisdiction included the subject matters of lading charges, cargo damage, seafarers’ wages, shares in vessels, sales of vessels, cargo jettison, command of vessels, merchant and shipowner mutual obligations, maritime loans, creditors’ rights, salvage, etc. • Reddy refers to the complete collection of maxims and usages for the regulation of maritime trade and the equitable nature of its principles.

25. Laws of Visby and the Hanseatic League • Since teutonic times there has been a great seafaring tradition in northern Europe. Nordic seafarers known as the Vikings sailed to North America in their long ships. • In Visby on the island of Gothland in the Baltic Sea, now a part of Sweden, was a prominent centre of maritime commerce in the eleventh century. According to some historians the Hogheste Water-Recht de Wisby(supreme maritime law of Visby) is the oldest of the maritime laws of the middle ages and is the source of the earliest part of the Rolls of Oleron.

26. Laws of Visby and the Hanseatic League • However, according to other historians the Laws of Wisby were derived from the Rolls of Oleron which were earlier in time. • In 1369 the Hanseatic League comprising the cities of Hamburg, Bremen and Lubeck adopted a private maritime law ordinance. The League rose to prominence after the Danes destroyed Wisby in 1361.

27. Rolls of Oleron • Oleron, a tiny island near Bordeaux in the Bay of Biscay was a major trading centre in the twelfth century when it was English territory. It is now a part of France. • The Roles d’Oleron, the most distinguished of the medieval maritime codes were based on earlier Mediterranean customs and practices including the Consolato del Mare. • The Rolls attributed to Richard I, were promulgated by Eleanor Duchess of Aquitaine or Guyenne, his mother.

28. Rolls of Oleron • The Rolls included the subject matters of charterparties, contract of affreightment, making a ship seaworthy at the commencement of the voyage, navigation, liability for cargo damage, cargo transhipment, liability for improper stowage or negligent cargo work, salvage, general average, rules relating to freight, demurrage or compensation for detention, master’s disbursements and hypothecation of ships.

29. Black Book of Admiralty • The Black Book of Admiralty which is the basic source of modern English maritime law drew from the Rhodian sea law and incorporated the Rolls of Oleron. • Today much of English maritime law is statutory; however, there is a large component of non-statutory law, the principles of which have been drawn from the lex mercatoria and the lex maritima. • Sea port courts heard disputes from tide to tide and were presided over by merchants and local port officials who adopted the law of the Rolls of Oleron.

30. Black Book of Admiralty • In the fourteenth century piracy, insubordination and disorderly conduct amongst seafarers became rampant. The office of the Lord High Admiral was established in 1360 which marked the beginnings of the admiralty court. • The Admiral had executive and regulatory jurisdiction over ships and seafarers, and over piracy and prize.

31. The Code of Malacca • Sir Stamford Raffles recorded in his writings that in as early as the thirteenth century the islands of Malacca had a maritime code. Also the traders of Bugis and Macassars who were different from the Malayas had a maritime code that was even older. • The Malaccan Code was compiled around 1276 during the reign of Sultan Mohammed Shah, the first Malayan sovereign who adopted and established the Islamic faith in his domain. • The Code was written by “nakhodas” or ship masters and the laws were enforced in ships, junks and prahus. The code had the status of positive enactment sanctioned by the sovereign.

32. The Code of Malacca • Subject matters included demurrage, salvage and jettison as historians such as Reddy have observed. The practices with respect to jettison were strikingly similar to those that prevailed in the Mediterranean city states. • The universality of the law of jettison and its antiquity is thus evidence of the ways in which the maritime law evolved through the centuries from prehistoric times.

33. Outline: Historical Evolution of Law of the Sea • Roman law doctrines of res communis and res nullius. • Confinement of jurisdiction of states to near coast areas. • Doctrine of mare liberum – freedom of the seas – Grotius. • Division of the seas between Portugal and Spain. • Rise of British dominance; Dutch and French expansions. • 1930 – League of Nations; 1945 Truman Proclamation. • 1958 – First LOS Conference – four conventions adopted.

34. Outline: Historical Evolution of Law of the Sea • 1960 – Failure of second LOS Conference to settle territorial sea breadth. • 1967 – Pardo Resolution; doctrine of common heritage of mankind. • 1970 – Establishment of Preparatory Committee for third LOS Conference. • 1973 – First session of third LOS Conference in Caracas, Venezuela. • 1982 – Adoption of UNCLOS at Montego Bay, Jamaica. • 1994 - Entry into force of UNCLOS

35. International Maritime Organization (IMO) • A conference held by the United Nations in 1948 adopted a convention establishing the International Maritime Consultative Organization (IMCO) as the first ever international body devoted exclusively to maritime matters. • In 1981 its name was changed to International Maritime Organization (IMO). One of its purposes is to provide machinery for co-operation among Governments in the field of governmental regulation and practices relating to technical matters of all kinds affecting shipping engaged in international trade, and to encourage the general adoption of the highest practicable standards in matters concerning maritime safety and efficiency of navigation. • IMO is mostly involved in issues of regulatory law and not so much in commercial aspects of shipping.

36. Comite Maritime International (CMI) • The Comite Maritime International was founded in Antwerp in 1897, with the object of contributing by all appropriate means and activities to the unification of maritime law in all its aspects. • CMI establishes national associations of maritime law and co-operates with other international organisations. Today, the major role of the CMI is the unification of private maritime law on a global scale.

37. Other international organizations • International Civil Aviation Organization (ICAO) • Intergovernmental Organization for International Carriage by Rail (OTIF) • International Labour Organisation (ILO) • The United Nations Economic Commission for Europe (UNECE) • The United Nations Commission on International Trade Law (UNCITRAL) • The United Nations Conference on Trade and Development (UNCTAD)

38. Other NGO’s • International Institute for the Unification of Private Law (UNIDROIT) • International Chamber of Commerce (ICC) • The Baltic and International Maritime Council (BIMCO) • International Chamber of Shipping (ICS)

39. Transportation law • Transportation law is much younger than maritime law and its development started only in the eighteenth century. • The oldest of the international transport conventions is the International Convention on Rail Carriage adopted in 1890. • The rail law in Western Europe stemmed from administrative law. • At the international level, the first rail organization - Office central des transports internationaux par chemins de fer (OCTI) - was created in Bern in 1890. The International Convention Concerning Carriage of Goods by Rail (CIM) was the outcome of this conference.

40. Transportation law • Legislation pertaining to carriage of good by road, unlike rail started from a private law approach. • The first international convention was drafted byECE in 1956 under the name “Convention on the Contract for the International Carriage of Goods by Road” (CMR). • The CMR is primarily a European Convention. It has the force of law in practically all European states.

41. Transportation law • Development of air law conventions bears certain similarities with maritime law in that they have global application. • The Convention on the Carriage of Passengers and Goods by Air (Warsaw Convention) was adopted in 1929. • The original Warsaw Convention 1929 was amended several times by Protocols, and later by a new convention - the Montreal Convention1999 which entered into force in 2003. Unlike other transport conventions it applies to carriage of both cargo and passengers.

42. Unification of maritime and transportation law • Proshanto K. Mukherjee “the lack or inadequacy of uniformity in international maritime law leads to serious practical and legal difficulties for those involved in the business of ocean trade and shipping” • John Henry Merryman – “international unification could be regarded as a natural requirement of maritime law”. • Plinia Manca - “Maritime trade having an international character, the logical corollary flowing from this truth is that the ideal legal system to govern it be a uniform one, that is identical in every State: uniformity belongs to the very essence of maritime law… The promulgation of uniform maritime laws is necessary, first of all, on account of the urgent need for certainty in the law. Uniformity of the maritime laws cannot be achieved by rules of private international law, although adopted by many States, inasmuch as they are only fit for identifying, among several laws in conflict, the one which must prevail and be applied in the specific circumstance. A notable contribution to uniformity is made by the international maritime Conventions”

43. Implementation and Interpretation of Transport Conventions • Successful unification of law cannot be achieved without two significant components which are implementation and interpretation. • Distinction between private law conventions and regulatory or public law conventions. • Both types of instruments are governed by rules of public international law, since the States are parties to these conventions. • As distinguished from public law conventions, private law conventions govern relationships between individuals or corporate entities and not between States. • Achieving uniformity in private matters is more difficult that in regulatory matters for the reasons of conflicting interests, private rights and liabilities.

44. Professor Berlingieri points out- • There are various degrees of uniformity in maritime law and various ways of reaching it. The ideal solution is that the same provisions should exist in the national legal systems and that such provisions should be interpreted in the same manner in all countries in which they are in force; • uniformity of interpretation is essential in order to achieve actual uniformity of maritime law.