Public and Private Maritime Law

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HISTORICAL EVOLUTION
OF MARITIME LAW
Professor P.K. Mukherjee
Lund University
Sweden
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.
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
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.
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.
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.
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.
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”.
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.
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”.
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.
Early Maritime Customs and Codes
•
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.
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.
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.
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.
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.
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”.
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.
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.
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.
Roman Law
•
The law also included the inherited Rhodian laws of bottomry
and respondentia (foenus nauticum), pilotage, collisions and
the lex aquilia.
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.
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.
Laws of Wisby 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 Wisby 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
Wisby) is the oldest of the maritime laws of the middle ages
and is the source of the earliest part of the Rolls of Oleron.
Laws of Wisby 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.
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.
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.
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.
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.
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.
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.
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.
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.
Outline: Historical Evolution of Law of the Sea
•
1994 – Entry into force of UNCLOS.
•
Prep. Com. – Part XI Agreement and Straddling Stocks
Agreement.
•
Codification of customary law.
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