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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-1. The Subject Matter And Distinctive Nature Of Admiralty And Maritime Law
American English has two terms--admiralty and maritime law--to signify the body of knowledge that is the
subject of our study. Although these terms are used synonymously today, etymologically they are quite distinct,
and this tells us something about our subject and its history. Maritime FN1 means "of or pertaining to the
sea." As such it has a broader scope than the word admiralty, FN2 which is derived from the connection
between the American law and the jurisdiction exercised by a specialized English court that originated in the
medieval period.
Admiralty, as practiced in the United States and the United Kingdom, typically refers to the law of ships and
shipping. Until recently, this also defined maritime law, since the law of the sea allowed ships the "freedom of
the seas," which meant freedom of navigation, both civil and military, and freedom to exploit the sea's resources,
essentially fish. FN3
In the past half-century, however, the law of the sea has taken on a dynamic character as coastal states have
asserted the right to exploit a greater variety of marine resources. The law of the sea has become very complex,
and new principles have been developed to accommodate not only different interests of coastal states but also
the conflicts arising from the new regimes for exploiting coastal resources and the traditional use of the sea for
navigation.
The term maritime law, then, 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. Admiralty
law is both narrower and broader than maritime law: it is narrower in the sense that it refers only to the private
law of navigation and shipping; FN4
it is broader in that it covers inland as well as marine waters.
From earliest times, maritime law was shaped by the practical needs of those engaged in maritime
commerce. The unique character of the sea and its hazards created the need for legal solutions and doctrines that,
in some cases, had no application on land. Many of these are still with us today, in the laws relating to
jurisdiction, liens, casualty, general average, insurance, liability for lost or damaged cargo, salvage, and the
rights of seamen and harbor workers.
Another distinctive feature of maritime law is its international character. Although its rules are a part of the
internal legal order of each country and, consequently, important national differences persist, the essential
concepts and institutions of maritime law are remarkably similar all over the world. Specialists in maritime law
tend to speak the same legal language, whether the underlying legal order is the civil law, the common law,
socialist law, or islamic law. Without at least broad agreement among nations as to basic principles of maritime
law, maritime commerce would be difficult or impossible.
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 The word is, of course, of Latin origin, derived from "mare" (the sea) and "maritima".
FN2 This word comes from the arabic amir meaning commander, which is always followed by al (of the) and
another word such as ma (water) or bahr (sea). This word was refashioned with the prefix ad and occurs in
English as early as 1205. It probably entered the English language through Spanish or French. See the Oxford
English Dictionary (1971).
FN3 The law of the sea recognized one small exception to freedom of the seas: a coastal state could exercise
exclusive rights in the territorial sea, a small band of waters close to shore, but this was subject to a right of
innocent passage for foreign vessels.
FN4 In the United States and the United Kingdom the term "admiralty law" is also limited by jurisdictional
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rules; this is not the case with "maritime law."
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-2. Beginnings: Early Maritime Law
There is an unbroken tradition and connection between contemporary maritime law and the customs of
earliest antiquity. FN1 Early maritime "law" arose out of necessity as man made use of ships to carry goods
and passengers. Shipping activity existed even in prehistoric times in the Persian Gulf and in the Arabian Sea,
and trade was carried on between the Sumerian and Akkadian people of the Tigro-Euphrates river basin,
southeastern Arabia, and possibly even the Harappan civilization of the Indus River valley. FN2 The Code of
Hammurapi (Hammurabi), which was written in Old Babylonian in cuneiform letters about 1800 B.C., contains
provisions dealing with marine collisions and ship leasing. FN3 Since this code is undoubtedly a compilation
of even earlier customary rules, it may reflect the even more ancient Sumerian customary law.
The Egyptians too must have contributed to early maritime law. According to Herodotus, Egyptian vessels
circumnavigated Africa, and Egyptian paintings depict vessels of considerable size. Egyptian laws concerning
loans and contracts of sales are extant, FN4 and these people must have also possessed a maritime law. FN5
There is reason to believe that a highly developed "international" system of maritime law existed in ancient
times centered around the basin of the Mediterranean Sea. This storied body of water around which the classical
civilizations of the West flourished, was ideal for a busy maritime commerce-- large enough for diverse people
with different resources and talents to coexist, but small enough to assure active contact between them. FN6
Egyptian vessels called at ports in the eastern Mediterranean as early as the third millenium B.C., importing
cedar and other products. FN7 Ships from Minoan Crete ranged over the sea and, after this civilization, a
Greek people, the Mycenaens, became dominant, establishing trading settlements in Melos, Thera, Rhodes,
Miletus, and Cyprus. FN8 After about 1200 B.C., the Phoenicians became important as did their principal
cities, Tyre and Sidon. FN9 Many scholars credit the Phoenicians with having a system of commercial and
maritime law that was derived from Babylonia and Assyria. FN10
After about 800 B.C., the Greek city-states asserted their dominance in the ancient world. Maritime
commerce continued to flourish and the principal centers administered an international maritime law in special
courts established for this purpose. FN11 In the Hellenistic period, the island of Rhodes and the city of
Alexandria were noted centers of maritime activity and law. The Greek maritime law was based upon constantly
recurring customs and transactions between buyers, sellers, shipowners, crews, and bankers. FN12
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 F. Sanborn, Origins of the Early English Maritime and Commercial law 3- 5 (1930); Gormley, The
Development of the Rhodian-Roman Maritime Law to 1681, With Special Emphasis on the Problem of
Collision, 3 Inter-Am.L.Rev. 317, 321 (1961); 1 Benedict on Admiralty § 1 (7th ed. 1983).
FN2 See J. Oates, Babylon 38, 58-59 (1979) and S. Wolpert, A New History of India 19 (2d ed. 1982). The
Indus Valley civilization was contemporary with the early middle eastern civilizations and was one of the most
advanced of ancient times. Unlike the middle eastern and Mediterranean peoples, however, the Indian peoples
did not develop an extensive maritime tradition, probably because of Hindu religious taboos. See M. Basham,
The Wonder that Was India 80 (1965).
FN3 Provisions of the Code of Hammurapi are quoted in 1 Benedict on Admiralty §
2 (7th ed. 1983).
FN4 F. Sanborn, supra note 1, at 3-4.
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FN5 Id.
FN6 In contrast to the ancient Mediterranean civilization, the other great early civilization of mankind which
developed around the great bend of the Yellow River in China, never developed an important maritime tradition.
The Chinese civilization was land-based and relatively self-sufficient, although there are isolated instances of
great feats of seamanship. See J. Fairbank, E. Reischauer, and A. Craig, East Asia, Tradition and
Transformation 197-99 (1978).
FN7 E. Gold, Maritime Transport 3 (1981).
FN8 See J. Bury, History of Greece 7-49 (3d ed. 1963).
FN9 1 Benedict on Admiralty §
2 (7th ed. 1983).
FN10 See Lobingier, The Maritime Law of Rome, 47 Jurid.Rev. 1, 2 (1935).
FN11 The organization and procedures of these special courts is treated extensively in E. Cohen, Ancient
Athenian Maritime Courts (1973).
FN12 F. Sanborn, supra note 1, at 5-7. The Greeks were using many arrangements that are antecedents of
modern transactions such as general average and bottomry loans at the lender's risk in case of shipwreck (a form
of insurance). Id.
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-3. Maritime Law In Classical Times: The Mystery Of The Rhodian Sea Code
The Romans, who first began to build large ships in the time of the Punic Wars, did not invent their own
maritime law, but accepted and amplified the maritime law of the Greek world. FN1 Unlike the Greeks,
however, the Romans did not have separate maritime tribunals and did not conceive of maritime law as separate
from the corpus of their civil law system. We know the Roman maritime law today primarily from the maritime
provisions contained in the Digest of Justinian (completed 533 A.D.). These concern such subjects as the
relationships between the parties to the marine adventure [dominus navis (shipowner), exercitor (the ship
operator who may be the owner as well), magister (master), nautae (crew), mercator (one who ships cargo), and
the viator (passenger who carries only personal belongings) ], the ownership of vessels, danger from pirates and
collision, general average, liability for freight, the charter of vessels, salvage, and maritime loans (foenus
nauticum ). FN2 The Digest, of course, reflects legal rules of much earlier periods.
The earliest maritime code to come down to us is a three-part compilation known as the Rhodian Sea Code.
Part III of this Code contains 47 chapters and treats maritime concerns in a comprehensive and systematic
manner. FN3 Despite its name, the Rhodian Sea Code has been shown to be of Byzantine, not Rhodian origin,
and was probably written in the eighth century. FN4
The fact that the so-called Rhodian Sea Code is of Byzantine origin has caused some scholars to doubt the
existence of any Rhodian sea law. Robert D. Benedict in 1909 attacked the idea that the Romans used any
sources other than Roman law for their maritime law. FN5 His view that there was no Rhodian law is based on
the fact that the direct evidence we have of Rhodian law is limited to two obscure provisions in the Digest that
refer to Rhodian law. FN6
Several scholars have attacked Benedict's views. His leading critic is Lobingier, who argues that the
Romans had no tradition of maritime law since the Twelve Tables, the earliest codification in Rome (about 450
B.C.), contain no reference to maritime law. Lobingier and others see no reason to doubt the references to
Rhodian law in the Digest and by classical authors like Cicero who wrote about the nautical ability and laws of
the Rhodians. FN7
The most careful study of the Rhodian Sea Code was made by Walter Ashburner, FN8 who collected
and analyzed all the variant manuscripts. Ashburner confirms that the code is of Byzantine origin, but concludes
that it contains material from several sources:
The Sea-Law was put together from material of very different epochs and character. Some of it was
possibly from treatises in the nature of a "Complete Merchant" guide to a gentleman engaging in business. Other
parts may come from enactments of Byzantine Caesars; but the mass of it must be derived from local customs.
Some provisions which originally had nothing to do with maritime affairs have been doctored in order to bring
them within the purview of the Sea-Law. There are traces of a South Italian origin for some of the chapters. FN9
Thus, there may not have been a codification of maritime law by the Rhodians, but we know that Rhodes
was a great maritime center and that in fact a Rhodian maritime law did exist. It is interesting that those who
compiled the Byzantine maritime code in the eighth century A.D. felt impelled to name it after Rhodes to add to
its authority. This work was not a fabrication but in fact reflects the law of the eastern Mediterranean at that time
and for several centuries to come. The drafters included what they deemed the best judgments of the time as to
the content of the ancient law, modified to suit their particular needs.
A century later, Emperor Leo the Wise promulgated the Basilica (Royal Legislation), a comprehensive
collection of Byzantine laws arranged in 50 books. Book LIII, devoted to maritime law, is, according to
Ashburner, "simply a rifacimento of those passages in the Digest and the [Rhodian Sea] Code which seemed to
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its compilers to bear on maritime law." FN10 In fact Ashburner makes the interesting point that "Part III [of
the Rhodian Sea Code] and Book LIII [of the Basilica] fit in together and form a complete body of maritime law,
while each separately is imperfect. I therefore infer that a second edition of the Sea-Code was made either by, or
under the direction of, the men who compiled the Basilica. * * * Our texts represent the second edition * * * but
there are traces of the earlier one or even of the texts out of which the earlier one was composed." FN11
By considering Part III of the Rhodian Sea Code together with Book LIII of the Basilica, we can get a
picture of the substantive maritime law that applied in the eastern Mediterranean in the ninth century and no
doubt even before. Byzantine maritime law governed and dealt with matters such as access to the sea; fighting
and theft; damage to the ship or cargo; ship chartering; maritime loans and partnerships; equitable liens;
shipwreck; salvage; collision; and contribution in general average. FN12
The significance of this maritime legislation today is that it developed from a common substratum as a law
observed by all nations. For the Romans, this law was a part of the Jus Gentium, which applied to all peoples.
FN13
The maritime law of the later Roman Empire held sway even as that empire declined, and it was
applied by the vigorous new Italian city-state republics, such as Venice, Genoa, Pisa, and Amalfi, in the
formative years just before the flowering of these cultures and the development of Italian Sea Law. FN14 The
Roman legal tradition which passed to the western maritime cities was, in time, passed on to the rest of western
Europe in the later Middle Ages. FN15
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 F. Sanborn, Origins of the Early English Maritime and Commercial Law, 7- 8 (1930); Gormley, The
Development of the Rhodian-Roman Maritime Law to 1681, with Special Emphasis on the Problem of Collision,
3 Inter-Am.L.Rev. 317, 323 (1961); A. Desjardins, Introduction Historique a l'Etude du Droit Commercial
Maritime 10-11 (1890).
FN2 The maritime provisions of the Digest are summarized in Sanborn, supra note 1, at 10-18. They are quoted
at length in I.J.M. Pardessus, Collection des Lois Maritimes Anterieur au XVIII Siecle 85-132 (1828) and
Desjardins, supra note 1, Chapter 2.
FN3 The Rhodian Sea Law (Ashburner ed. 1909). Professor Sanborn summarizes the provisions of the Rhodian
Sea Code as follows:
Part I is a prologue, which purports to give an authorization to the sea law from the declarations of various
Roman emperors. Most of this is demonstrably false. Part II consists of nineteen chapters, mostly very short.
The first seven establish what shares the various members of the ship's company take in the profits of the
maritime adventure. Chapters 8 to 13 regulate the internal police of the ship--determine the space to be allotted
to each passenger; limit the number of servants a merchant may bring; fix the water allowance, and forbid
certain dangerous acts. Chapters 14 and 15 limit the captain's liability for a passenger's valuables to the case
where they have been deposited with him. Chapter 16 provides a method of valuing the ship for general average
purposes. Chapters 17 to 19 deal with maritime loans and loans in general. Part III contains 47 chapters,
generally grouped together according to the subject. Again the first chapters are questions of police. Chapters 1
and 2 deal with the theft of a ship's anchors or tackle; Chapter 3 with thefts by a sailor from a merchant or
passenger, and Chapter 4 fixes the responsibility as between captain and passengers for going to a place where
thefts are frequent. Chapters 5 to 7 relate to fights, whether of sailors among themselves, or of the captain or
merchants with sailors, and determine the responsibility for personal injuries. Chapter 8 establishes the liability
and the remedy where captain and crew abscond with the ship and its contents. Chapter 9 deals with jettison and
its results, and Chapter 10 fixes the responsibility for injury to ship or cargo where one of the parties is to blame.
Chapter 11 is hortatory. It advises merchants not to load heavy and valuable cargoes in old bottoms. It does not
sound like a legal rule, but it may perhaps be understood as limiting the conditions under which the owners of
freight are entitled to demand contribution. Chapters 12 to 14 treat of deposits, 13 substantially reproducing 14
and 15 of Part II. Chapter 15 relates to cases where the ship is obliged to put off suddenly and leave passengers
behind. There is an incidental reference to deposit, probably the reason why it is put here. Chapters 16 to 18 deal
with maritime loans or maritime partnerships. Chapters 19 to 25 (except chapter 21) deal with the hiring of the
ship by the merchants. Chapter 21 deals with contribution between two shipowners or two owners of cargo.
Apparently it is inserted here because, like 20, it refers to a case where there is no written contract between the
parties. Chapters 26 to 44 (excepting 42) deal mainly with the question of contribution, i.e. the extent to which,
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where there is a maritime loss, ship or cargo in so far as saved is to make good ship or cargo in so far as injured
or lost. Under Chapter 26, sailors or captains who sleep off the ship are responsible for injuries done to the ship
in their absence. Chapters 27 to 33 fix the merchant's liability to contribute to injuries to the ship either while it
is being loaded (27-29), while it is on the voyage (30- 32), or after it has been unloaded (33). Chapter 34 fixes
the liability for injuries to goods of a character particularly subject to injury by damp. Chapter 35 provides for
contribution where the ship's mast is broken or cut away. Chapter 36 deals with collision. Chapters 37, 40, and
41 fix the proportions in which, where the ship is lost, contribution is to be made by money and other articles of
great value in small compass, if saved. These provisions partially repeat 30 and 31 and could logically follow
the latter chapter. Chapters 38 and 39 treat of grain ships or ships carrying provisions, and provide for
contribution either where the cargo or where the ship is injured. Chapter 42 gives the captain authority to
transfer the cargo to another ship where the original ship springs a leak. Chapters 43 and 44 contain very general
provisions as to contribution. Chapters 45 and 47 deal mainly with salvage and the rewards of salvors.
Sanborn, supra note 3, at 36-37.
FN4 Ashburner, supra note 3 at cxii.
FN5 Benedict, The Historical Position of the Rhodian Law, 18 Yale L.J. 223, 240 (1909). See also G. Gilmore
and C. Black, The Law of Admiralty 3 (2d ed. 1975).
FN6 The first of these provides as follows:
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. Digest 14.2.1.
This is stated in the Digest to be a principle of Rhodian law derived from the Sentences of Paulus, a Roman
lawyer of the third century A.D., who also attributes it to Rhodes.
The second reference to Rhodian law in the Digest is as follows:
The petition of Eudaemon of Nicomedia to the Emperor Antoninus. "Lord and Emperor Antoninus.
Making shipwreck in Italy [Icaria], we have been plundered by taxgatherers inhabiting the islands of the
Cyclades." Antoninus answers Eudaemon, "I am indeed lord of the world, but the law is the lord of the
sea. Let it be judged by the maritime law of the Rhodians, provided that no law of seas is opposed to it."
Digest 14.2.9.
Other provisions of Justinian's Digest, Novels, and Institutes, as well as the Codex Theodosianus (438 A.D.)
treat maritime matters, but Rhodian law is not expressly cited as a source.
FN7 Lobingier, The Maritime Law of Rome, 47 Jurid.Rev. 1, 6-8 (1935).
FN8 Ashburner, supra note 3.
FN9 Id. at cxiii.
FN10 Id. at cxx-xxi.
FN11 Id. at cxiii.
FN12 Id.
FN13 "It will be remembered that during all the years of the Roman Empire, the Mediterranean, at once the
center of the then known world and its chief highway, was in Roman control, and under Roman laws. Because
of this, the laws of the sea were uniform and universal, a characteristic never completely lost, even in our own
times, although it is not true today in anything like the extent that it then was. Indeed, it cannot be too strongly
emphasized that throughout classical antiquity, through the Dark and Middle Ages, and until comparatively
recent times, the greatest characteristic of maritime law has been that its uniform provisions were known and
enforced in every seaport of every nation. From time to time the law has changed and has developed, but even in
the days of the universal legislative authority of the Roman Empire no great and radical changes were ever made,
so that it has always been a matter of slow growth." Sanborn, supra note 1, at 19.
FN14 Id. at 35.
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FN15 Id. at 40.
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-4. The Sea Codes And Maritime Courts Of The Middle Ages
Although sea trade never died out in the Mediterranean during the ninth and tenth centuries, it became very
hazardous and declined with the fortunes of the Eastern Empire. The mantle of political leadership passed to the
Italian cities which, either legally or as a practical matter, asserted their independence from the authority of the
Empire and developed a vigorous maritime commerce.
For their maritime law the Italian cities took the principles of the Byzantine codes, the Rhodian Sea Law,
and the Basilica but they did not hesitate to modify them according to their own customs and usages. FN1 A
new maritime law was fashioned and applied in each of the important port cities. It also became common to
assign the task of resolving disputes to special judges or administrative officials trained in maritime matters.
The substantive rules of the new laws were somewhat different from the Roman and Byzantine laws and,
beginning in the eleventh century, they were reduced to writing, apparently to appease the citizenry who had
trouble keeping up the knowledge of the laws by oral tradition alone. FN2
Two of the earliest and most influential of these medieval Italian sea codes were the Ordinance of Trani
FN3 (circa 1063) and the Tables of Amalfi (manuscript of 1274 stating that this is a revision of the laws of
1010). FN4
Additional early codes and their dates have been determined by Ashburner: FN5
1156-1160 Constitutum Usus (Pisa)
1214 Curzola (earliest part)
1227 Ziani (Venetian)
1229-1236 Tiepolo (Venetian)
1255 Zeno (Venetian) and Marseilles
1258 Barcelona
1272 Ragusa and Tortosa
1298 Breve Curiae Maris (Pisa)
1312 Spaleto
1313-1344 Officium Gazarie (Genoa)
1331 Phara (Lesina)
1345 Consolatum Trapani
The crusades spread the new maritime law to the eastern Mediterranean as well. A compilation called the
Assizes of Jerusalem was edited in Jerusalem in 1187 FN6 to become the maritime laws of the Latin
population of Cyprus and Antioch. The Greek inhabitants were allowed to retain the maritime law of the two
Byzantine codes. FN7
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Probably the most important and influential of the medieval sea codes is the Rolls (Rules) of Oleron. FN8
The stimulus for the compilation of this work was the flourishing wine trade between Aquitaine and England
and Flanders. The date of the promulgation of the Rolls is disputed and cannot be determined with accuracy.
The oldest existing manuscript dates from the early fourteenth century, but most scholars accept an earlier date
in the second half of the thirteenth century (1266) or even before. As with the other medieval collections of sea
laws, there are several different versions of the Rolls of Oleron. FN9
The Rolls are of central importance in the development of modern maritime law. FN10 Derived from
Roman and Italian sources adapted to local customs, FN11 the Rolls became the basis of the common
maritime law of the North Sea and the Atlantic Ocean. They were adopted with little change by the seaports of
Brittany and Normandy and formed the basis of the Judgments of Damme, FN12 the earliest body of maritime
law in Flanders. The Rolls also provided the foundation for other late medieval collections, such as the laws of
Wisby, FN13 (a town on the island of Gotland in the Baltic Sea) and the laws of the Hanse League, FN14 a
commercial confederacy involving principally the towns of Lubeck, Brunswick, Danzig, and Cologne, but
extending in time to more than fifty cities from London to Novgorod in Russia. The Rolls of Oleron also
became the chief early authority relied upon by the English Admiralty.
After the consolidation of the power of nation-states in Europe, the Rolls of Oleron, the Judgments of
Damme, and the laws of Wisby became the foundation for the elaboration of national maritime and commercial
codes. In France, a commission appointed by Colbert drafted and promulgated the Ordinance de la marine of
1681, which became a model law for many other European countries. FN15 The laws of the Scandinavian
countries were influenced by the French codification and the laws of Wisby. FN16 The maritime sections of
the German Commercial Code of 1867 also derived from these codes, especially Hanseatic law.
An important institution of medieval maritime law was the practice of assigning disputes to special
maritime courts for decision. One of the earliest examples of this is the maritime court of Pisa, which was
established in 1200 by the Pisan maritime guild. FN17 This court had comprehensive jurisdiction over
maritime matters based upon the nature of the cause rather than the status or trade of the individual. From about
this time it became widespread in each port city to have a "sea counsel" or other official with jurisdiction over
maritime affairs. The maritime law courts operated like the better-known medieval commercial courts that were
used to be sure that the individuals deciding the cases would be familiar with the unique body of law
involved--the sea laws and customs or, in the case of commercial courts, the lex mercatoria.
The most famous of these medieval maritime courts was the Maritime Court of the city of Barcelona that
was administered by a corps of "sea consuls." An extensive compilation and digest of the decisions of this court
has come down to us, the Libro del Consulat del Mar. FN18 This body of jurisprudence exercised great
influence, particularly in Spain, France, Holland, and Germany. Scholars trace the origin of the Barcelona
maritime court directly to the Curiae Maris of Pisa. FN19 In turn, the consular courts of Barcelona provided
the model for the Admiralty of England and the maritime courts of the continent.
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 F. Sanborn, Origins of the Early English Maritime and Commercial Law, 43-44 (1930).
FN2 IV Black Book of the Admiralty xciv (T. Twiss ed. 1876).
FN3 These articles are set out in the Black Book of the Admiralty, id., at 522-543.
FN4 A manuscript containing these chapters and ordinances was discovered in the Imperial Library in Vienna in
1843. The text of the 66 articles is set out in the Black Book of the Admiralty, supra note 2, at 2-51.
FN5 The Rhodian Sea Law (Ashburner ed. 1909) at cxix-cxx.
FN6 Sanborn, supra 1, at 58-59. For the text of the Assizes see Black Book of the Admiralty, supra note 2, at
497-519.
FN7 According to Twiss the first specialized maritime law court was created by King Amauri I who reigned
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over the Latin Kingdom of Jerusalem from 1162- 1173. Black Book of the Admiralty, supra note 2, at xcvi.
FN8 For the text see I Black Book of the Admiralty 88-131 (Twiss ed. 1871). A different version is reprinted in
30 F.Cas. 1171. For other versions, see Black Book of the Admiralty, Vol. II, p. 210 and Vol. III, p. 4.
FN9 The most detailed research into the origin of the Rolls was carried out by Krieger, who concludes they date
from the last half of the thirteenth century. K.F. Krieger, Ursprung and Wurzeln der Roles d'Oleron 38-40
(1974). A later study fixes the date even earlier, about 1200. J. Shephard, Les Origines des Roles d'Oleron
181-186 (unpublished master's thesis, University of Poitiers, 1983).
There is a story that the Rolls of Oleron were promulgated by or even authored by King Richard I (the
Lion-hearted) of England. Most scholars doubt this, but it is possible that the Rolls were first circulated in the
name of that King to lend them greater authority. The Rolls were not ordinances and were apparently not
promulgated as law by any authority. Rather they were judgments gathered together to show how the maritime
court at Oleron would decide particular cases.
FN10 This substantive law contains many basic principles of modern maritime law. These include the ideas that
(1) the shipowner is relieved from responsibility for damage to cargo caused by damnum fatale, such as pirates
and shipwreck; (2) the exercitor (shipowner or charterer) is liable for contracts of the magister (master) made
within the limits of his authority, but not on those made by a seaman; (3) if goods are thrown overboard in order
to lighten a ship, what is sacrificed for the common benefit shall be made good by common contribution
(according to the Lex Rodia de Jactu); (4) if ships collide through an inevitable accident, there is no remedy; (5)
jettisoned goods continue to belong to the shipper, and he who takes them is a thief; (6) a maritime loan (foenus
nauticum ) involves a pledge or a hypothecation (hypotheca ) either of the goods purchased or other goods. Until
very late there was no limit on the interest that could be charged on maritime loans, which was a reflection of
the risk involved. An action to enforce the hypotheca was an actio hypothecaria, the forerunner of the action in
rem. The maritime loan developed into the loan on bottomry. It also represents the forerunner of premium
insurance since if the ship were lost, the creditor commonly received neither principal nor interest. See
Lobingier, The Maritime Law of Rome, 47 Jurid.L.Rev. 1, 18-30 (1935); Sanborn, supra note 1 at 10-18.
FN11 See Sanborn, supra note 1, at 37, 59.
FN12 Black Book of the Admiralty, supra note 2, 302-333. Damme was the port of Bruges, the principal city of
Flanders at the time. The Judgments of Damme are so close to the Rolls that many regard it to be simply a free
translation of the Rolls.
FN13 Reproduced in 30 Fed.Cas. 1189 and IV Black Book of the Admiralty, supra note 2, at 54-129. These
laws are also called "Gotland Sea Laws" and the "Hogeste Water-Recht."
FN14 Reproduced in 30 Fed.Cas. 1197. Wigmore has traced one of the aspects of maritime law--the law of
jettison--through the early codes:
The act of casting goods overboard in a storm to save the ship and its contents is known in the sea-law
as jettison; and when by jettison one man's goods are sacrificed, the others whose property is thus saved
must repay him, each a ratable share. But there was, in the old common law of the sea, a peculiar provision
for the procedure to be followed. In the Rhodian law as phrased in Greek at Byzantium, A.D. 700, Article 9
says on this point: "If the captain is deliberating about jettison, let him ask the passengers who have goods
on board, and let them take a vote what is to be done." Note this democratic idea of a joint enterprise; the
merchants must first be consulted before the captain can lawfully jettison.
This feature has totally disappeared in modern law. But we can trace it for nearly 2000 years in the old
law. Going west in the line of evolution, we next find it persisting in Art. 48 of the Code of Amalfi. This
draftsman, a philosopher, adds naively: "If the merchants are greedy, as some people always are, and would
rather die on the spot than sacrifice anything, so that by their extreme avarice they refuse to jettison, then
the captain after protest may proceed to jettison."
Then two centuries later, in the Consulado del Mar, of Barcelona, the same rule reappears, with much
elaboration; here, the author provides a set speech which the captain must deliver in the presence of the
mate and all on board: "Gentlemen, if we do not lighten the vessel we run great risk of losing our lives and
everything; but if you, gentlemen, consent to lighten ship, then by God's will we can save ourselves and a
large part of our goods; but if we do not cast them over, we shall lose ourselves as well as all that we have";
then if all or the majority of the merchants consent, the jettison may be made; but one of the merchants
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must first cast over something, then the captain may cast over the remainder.
Next, in the Laws of Oleron, the same rule is found once more, here again supplying the captain with a
speech, but a shorter one than in the Consulado.
And finally in the Wisby Code and the Hansa Code, Title VII, Art. II, it appears once more, with little
change, but without the words of the speech. And a notable thing, which marks the worldwide universality
of sea-rules, is that in a sea-code of the Malay Islands, in the East Indies, dating back to the first
Mohammedan Sultan, in the 1200's, is found an explicit provision of this identical nature, calling for a
consultation of the merchants, and fixing the rule for counting the votes of each.
3 Wigmore, A Panorama of the World's Legal Systems 881-83 (1928).
FN15 R. Rodiere, Droit Maritime 11-12 (9th ed. 1981).
FN16 The first Scandinavian maritime law was the Maritime Code of Denmark of 1551. Sweden enacted a
Maritime Code on June 12, 1667.
FN17 See Sanborn, supra note 1, at 56-57.
FN18 For a translation entitled The Judicial Order of the Courts of the Consuls of the Sea, see Black Book of
the Admiralty, supra note 2, at 451. A new translation is S. Jados, Consulate of the Sea and Related Documents
(1975). Many other ancient codes, such as those of Venice, Genoa, Pisa, Riga, and Sicily, no longer survive.
The code of the Consulat del Mar is notable for its comprehensiveness. The amount of detail is evident in
the following passages:
Every patron of a vessel or a boat which has a deck must provide the following food for the whole crew:
Meat three times per week. This means on Sunday, Tuesday, and Thursday. On the other days of the week he
shall provide soup for them in addition to the bread given to the crew each evening. Also, three times per week,
in the morning and the evening he shall provide them with wine. To supplement the bread ration they should be
given cheese or onions or sardines or other kind of fish. Art. 145.
A sailor shall not undress for the night unless the vessel is moored in the port for a winter layover.
Should be violate this rule, he should be punished for each transgression by being tied and dunked in the
ocean three times while held by a rope. If he should violate this rule three times, he shall lose his wages and
all the possessions he has aboard the vessel. Art. 170.
The sea-code of the Consul at del Mar was administered by special courts presided over by consuls elected
by the sea guilds and others engaged in the shipping trades. The jurisdiction of the consuls is described as
follows:
Consuls shall have jurisdiction in all matters relating to lading charges, damages suffered by the cargo
loaded aboard the vessels, wages of sailors, shareholders of vessels, sale of vessels, throwing of cargo overboard,
command of vessels entrusted to patrons or sailors, indebtedness of shipowners who took out loans to equip the
vessels, obligations of merchants to shipowners, obligations of shipowners to merchants, of all salvage found on
the sea and the seashore, outfitting of vessels, galleys, barques, and of all types of agreements which generally
refer to the customs of the sea. Art. 22.
FN19 Sanborn, supra note 1, at 86-87.
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-5. The Development Of The Admiralty Of England
In the Middle Ages the English were not known to be a seafaring people, and the development of maritime
law lagged behind the continent. Only in the thirteenth century did the need arise for the application of maritime
law. At that time courts were set up in seaport towns to deal with maritime and commercial matters. FN1
These courts at Yarmouth, Bristol, Ipswich, London, Rochester, Southampton, and other places applied
primarily the laws of Oleron as the basis of the custom prevailing among seaport towns. FN2 In this there was
no difference between English and continental practice.
What distinguished England politically from the continent was the relatively greater power of the Crown,
and the Admiralty Court was the result of that authority. The purpose of the creation of the Admiralty Court was
the Crown's need to control and supervise the jurisdiction over maritime and foreign affairs exercised by the
local courts. FN3
The title of admiral was used in England to denote an officer of the Crown in charge of a fleet either in a
particular district or for a military expedition. FN4 As naval officers, the admirals had responsibility for
discipline as well as for maintaining peace and order. In fourteenth century England, virtually all maritime cases
concerned piracy, spoil, reprisals, wreck, and admiral's droits. FN5 At least in principle, informal,
continental-style procedures were used, FN6 and the admirals' courts were itinerant, often presided over by
appointed deputy-admirals.
Conflicts of jurisdiction inevitably occurred, arousing the ire of the local courts and the Parliament. This
was especially true after 1360 when the Admiralty claimed a civil jurisdiction over charter parties, obligations,
and contracts made abroad or on the high seas. FN7 A statute of 1389, 13 Rich. II, c. 5 recited that "a great and
common clamor and complaint hath been often times made before this time and yet is, for that the Admirals and
their deputies hold their sessions within divers places within this realm, as well within franchise as without,
accroaching to them greater authority than belongeth to their office." It then declares that "the admirals and their
deputies shall not meddle from henceforth with anything done within the realm, but only of a thing done upon
the sea, as it hath been used in the time of King Edward, grandfather of our Lord the King that is now."
This must not have been specific enough, for in 1391, another act, 15 Richard II, c. 3, declared that "of all
manner of contracts, pleas, and quarrels, and all other things rising within the bodies of the counties (infra
corpus comitatus ), as well as by land as by water, and also of wreck of the sea, the Admiral's court shall have
no manner of cognizance, power nor jurisdiction." But, "nevertheless, of the death of a man, and of a mayhem
done in great ships, being and hovering in the main stream of the great rivers, only beneath the bridges of the
same rivers nigh to the sea (infra primos pontes ), and in none other places of the same rivers, the Admiral shall
have cognizance." Yet another statute of 1400, 2 Henry IV c. 11, provided that those sued wrongfully in the
Admiral's courts shall have a right of action for double damages.
In the fifteenth century the Admiralty Court remained controversial and its jurisdiction vague. The local
maritime courts successfully asserted exemptions from the Admiral's jurisdiction. Nevertheless, the several
courts of admiralty were consolidated during this time into a single court under one Lord High Admiral. FN8
Piracy and prize continued to be the most important type of cases heard by the admiral; there was no general
jurisdiction over maritime cases. Both the procedure and substantive law applied by the Admiralty Court were
recognized as different from the common law. The phrase in constant use by the court was secundum legem
maritimam. FN9
Under the Tudors in the sixteenth century, the Admiralty gained and consolidated its power. Beginning in
1524, regular records of the court's operation were kept and the civil and criminal jurisdiction expanded to
include merchant shipping cases. Henry VIII, in his patent to the Admiral, omitted the limitations under the
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statutes of Richard II, and inserted the words "statutis in contrarium non obstantibus." FN10 In 1541, the
Admiralty Court was expressly granted jurisdiction over charter parties, damage to cargo due to negligence,
contracts made abroad, bills of exchange, insurance, average, freight, nondelivery of cargo, negligent navigation,
and breach of warranty of seaworthiness. FN11 Queen Elizabeth I took the side of the Admiralty Court in a
jurisdictional dispute, writing to the Mayor and the Sheriffs of London that they should stop meddling with the
jurisdiction of the Admiralty over contracts and causes upon and beyond the sea. FN12 In the statute of 28
Eliz. c. 11, the jurisdiction in the admiralty was defined as including all offenses "as thereafter should be done
upon the main sea, or coasts of the sea, being no part of any country, and out of any haven or pier."
The rise of the common law courts created ever sharper conflicts with the Admiralty over jurisdictional
matters. In 1606, Sir Edward Coke became Chief Justice of the Court of Common Pleas and a leader of the fight
to absorb the jurisdiction of the Admiralty Court. Based upon the old laws of Richard II, Coke and the common
lawyers interpreted the phrase "within the body of a country" to preclude admiralty jurisdiction over all
contracts made on land, whether in England or abroad. The phrase "upon the sea" was held to refer to those
waters below low water when the tide was out, and only up to high water when the tide was in. FN13 In 1632,
after Coke had retired, a compromise was reached between the common lawyers and the "civilians," as the
admiralty partisans were called. Admiralty jurisdiction was conceded over (1) contracts made and injuries done
on the sea or abroad, (2) suits involving freight, wages, and charter parties for voyages "beyond the [English]
sea," (3) suits in rem regarding building, repairing, or supplying a vessel, and (4) suits over obstructions to
navigable waters below the first bridges. FN14
During the rebellion against royal authority and the period of the Commonwealth (1649-1660) the office of
Lord High Admiral was abolished and the 1632 compromise was disregarded. In 1648, however, an ordinance
defined "jurisdiction in maritime causes," declaring that "the Court of Admiralty shall have cognizance and
jurisdiction against the ship or vessel with the tackle, apparel, and furniture thereof, in all causes which concern
the repairing, victualling, and furnishing provisions for the setting of such ships or vessels to sea, and in all
cases of bottomry, and likewise in contracts made beyond the seas concerning shipping or navigation or
damages happening thereon, or arising at sea in any voyage; and likewise in all cases of charter-parties, or
contracts for freight, bills of lading, mariners' wages, or damages in goods laden on board ships, or other
damages done by one ship or vessel to another, or by anchors, or want of laying of buoys, except always that the
said Court of Admiralty shall not hold pleas, or admit actions upon any bills of exchange, or accounts betwixt
merchant and merchant or their factors." FN15 Shortly thereafter, three judges were appointed to preside
over the Admiralty.
After the Restoration of Charles II (1660), however, this ordinance was repudiated, and the common
lawyers and judges triumphed. Hence forth, according to Sir Matthew Hale, FN16 the Admiralty jurisdiction
"is confined by the laws of this realm to things done upon the high sea only: as depredations and piracies upon
the high sea, offences of masters and mariners upon the high sea; maritime contracts made and to be executed
upon the high sea; but touching contracts, or things made within the bodies of English counties, or upon the land
beyond the sea, though the execution thereof be in some measure upon the high sea--as charter-parties, or
contracts made even upon the high sea-- touching things that are not in their own nature maritime, as a bond or
contract for payment of money, & c., these things belong not to the admiral's jurisdiction; and thus the common
law and the statutes of 13 Rich. II. c. 5, 15 Rich. II c. 3, confine and limit their jurisdiction to matters maritime,
and such only as are done upon the high sea."
This assimilation of the jurisdiction of the Admiralty Court by the common law courts had two
consequences: the court itself became a minor judicial body with little to do FN17 ; and the body of maritime
law largely lost its international character and became English national law. In the eighteenth century, prize
cases once again dominated the court, and this jurisdiction was looked upon as distinct from the traditional
"Instance" jurisdiction over criminal, civil, and droits cases.
Nevertheless, the tradition of a separate Admiralty Court refused to die, and Lord Stowall, who in 1798 was
appointed judge, began the publication of the Admiralty Reports at that time. A treatise FN18 published by
Arthur Browne, Professor of Civil Law at the University of Dublin, chronicled the court and advocated a
broadened jurisdiction.
In the middle of the nineteenth century the importance of seapower in Britain increased and the jurisdiction
of the Admiralty Court was broadened. A series of statutes enacted in the time of Queen Victoria FN19 gave
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the Admiralty general jurisdiction over actions concerning title to and mortgages of ships, salvage, towage, the
construction and repair of ships, supply contracts, damage to cargo, seamen's wages, and claims for any
damages done by a ship. Litigants in these civil matters were given the option of proceeding in the law courts or
using the summary process of the Admiralty Court.
Finally, in 1873, the Judicature Act merged the Admiralty Court into the High Court of Justice, abolishing
the Admiralty as a separate court. Within the High Court, separate divisions were retained, but the complete
jurisdiction could be exercised by any division. As a matter of practice, maritime cases were assigned to the
Probate, Divorce, and Admiralty Division. Under the Administration of Justice Act of 1970, the divisions of the
High Court were reorganized, and an Admiralty Court was constituted within the Queen's Bench Division of the
High Court, which as a matter of practice and convenience, handles most of the maritime cases and applies the
specialized procedural rules that still exist. The English Admiralty Court exists today, however, solely as a
matter of administrative convenience, and has no special jurisdictional function. FN20
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 F. Sanborn, Origins of the Early English Maritime and Commercial Law, 267-69 (1930). Special liberties
and franchises were extended in particular to the so-called Cinque Ports--Dover, Hastings, Romney, Hythe, and
Sandwich to which Wichelsea and Rye were added in the time of Richard I. This was because of their
importance in commanding the English Channel and the fact that they were located on the traditional path of
invasion from the continent. Mears, The History of the Admiralty Jurisdiction, 2 Select Essays in
Anglo-American Legal History 312, 313 (1908).
FN2 5 W. Holdsworth, A History of English Law 120, 129 (2d ed. 1937).
FN3 Id., vol. I at 533.
FN4 Holdsworth tells us that the earliest mention of the term Admiral is in a Gascon roll of 1295, in which
Bernardo de Sestars was appointed Admiral of the Baion fleet. I A History of English Law at 544.
FN5 These cases involved relations with other nations or rights of the Crown. Admiral's droits were certain
rights to property found at sea or stranded upon the shore. The Crown was also liable to foreign merchants who
suffered losses due to piracy or spoil. If compensation was not paid, the result might be the declaration of
reprisals--the right of self-help. The admirals were ordered by royal writs to take such cases, considered too
important to be left to the local courts. Merchants' cases, however, were still considered under the jurisdiction of
the local courts. Sanborn, supra note 3, at 266-67.
FN6 The procedure and practice of courts was modeled after the civil law. See I Black Book of the Admiralty
178-220 (T. Twiss ed. 1876), 246-280, 345-94.
For an interesting review of English admiralty jurisdiction over seamen's cases and an argument that the
common law courts in England freely allowed Admiralty courts to exercise jurisdiction over seamen's wage and
hypothecation cases, see Rebecca Emily Rapp, Uncommon Preservation: Common Law Recognition of
Admiralty Jurisdiction in Seamen's Wage and Hypothecation Cases, 67 U. of Chi. L. Rev. 1409 (2000).
FN7 The Cinque Ports as well as Yarmouth, Bristol, Southampton, and Harwich were strong enough to free
themselves from the authority of the Admiral. Sanborn, supra note 1 at 308.
FN8 Holdsworth I, 545.
FN9 R. Marsden, Select Pleas of the Court of Admiralty I, pp. xiii, xvi, xxiv, xviii, n. 1.
FN10 Mears, supra note 1, at 352.
FN11 32 Hen. VIII c. 14.
FN12 Mears, supra note 49, at 353.
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FN13 Holdsworth, I, at 553-554. For details of the struggle between the common lawyers and the admiralty, see
Mathiason, Some Problems of Admiralty Jurisdiction in the 17th Century, 2 Am.J.Leg.Hist. 215 (1958).
FN14 Id. at 556.
FN15 Scobell's Acts and Ordinances, c. 112 (1648).
FN16 History of the Common Law, 6th ed., ch. 2, p. 39, quoted in Mears, supra note 1 at 359-60.
FN17 Samuel Pepys gives us a rare firsthand view of the Admiralty: "I perceive that this court is yet but in its
infancy (as to its rising); and [the judges'] design and consultation was, I could overhear them, how to proceed
with the most solemnity, and spend time, there being only two businesses to do, which of themselves could not
spend much time." Pepys' Diary, March 17, 1662- 63.
FN18 Compendious Views of the Civil Law and the Law of Admiralty (1802). This work was dedicated to Lord
Stowall.
FN19 3 & 4 Vict. c. 65 (1840); 9 & 10 Vict. c. 99 (1846); 17 & 18 Vict. c. 104 (1854); 24 Vict. c. 10 (1861); 31
& 32 Vict. c. 71 (1868).
FN20 R. Grime, Shipping Law 2, 6 (1978); Jackson, Admiralty Jurisdiction-- The Supreme Court Act of 1981, 2
L.M.C.L.Q. 236 (1982).
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 1. Admiralty And Maritime Law: Background And Development
§
1-6. The Reception Of Admiralty And Maritime Law In The United States
In the seventeenth century, maritime cases that arose in the British colonies in North America were decided
by the local courts. Concurrent jurisdiction (at least in in personam actions) was exercised by common law
courts and the governor and his court of assistants. Matters of procedure were not very important, but these
judicial bodies knew and applied the in rem as well as the summary, non-jury practice of the court of admiralty.
The judges acquired their familiarity with the general maritime law through the English books of the time. FN1
Toward the end of the seventeenth century, the English Crown began a policy of greater royal control of the
American colonies. Acts of trade were passed to regulate commerce with the colonies and to control illicit trade
by the colonists. In order to enforce these new laws it became necessary to establish a new judicial system since
it was thought that the local courts would not act in these matters. The English Board of Trade accordingly
recommended the establishment of a new system of Vice-Admiralty courts and this was approved by the Privy
Council. By 1700 the Vice Admiralty Courts were constituted in each colony by commission of the King. FN2
The extent of the jurisdiction of the Vice Admiralty Courts as specified in these commissions was, of course,
very broad. This fact was noted by commentators and was important in the historical development of admiralty
law in the United States. Justice Story states the predominant view in DeLovio v. Boit. FN3
"In some of the states, and probably in all, the crown established, or reserved to itself the right to establish,
admiralty courts; and the nature and the extent of their jurisdictions depended upon the commissions of the
crown, and upon acts of Parliament conferring additional authorities. The commissions gave the courts a most
ample jurisdiction over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas.
The statutes enacted for the government and regulations of the High Court of Admiralty proprio vigore do not
extend to the colonies. And acts of Parliament enlarged, or rather recognized, this jurisdiction by giving or
confirming cognizance of all seizures for contraventions of the revenue laws. Tested by this exposition, the
admiralty jurisdiction of the United States would be as large as its most strenuous advocates ever contended
for."
Recent scholarly research has established that Story's view, while not wholly incorrect, is certainly
exaggerated. In fact, there was a significant disparity between the extent of jurisdiction granted in the
commissions and the jurisdiction actually exercised by the Vice Admiralty Courts. Extensive analysis of the
court records shows that these courts heard cases involving maritime commercial matters that would not have
been within the English jurisdiction at that time; nevertheless, the Vice Admiralty courts were controlled both
by writs of prohibition issued by the common law courts and in more subtle political ways by the colonial
assemblies. FN4 Professor Robertson points out that the jurisdictional struggles did not turn on legal theory or
ideology:
The admiralty judges obeyed writs of prohibition not because they accepted the limits implied but because
they were orders of a more powerful court. The key to the conflict is not to be found in generalizations as to
distrust of the civil law or love of the jury. The real causes were more practical. The admiralty judges were
appointed from without, whereas the common law judges were generally elected by the colonial assembly. FN5
After the Revolution and during the period of the Confederation, each state exercised sovereign powers.
There was no system of national courts under the Articles of Confederation, and states enacted laws setting up
state tribunals including admiralty courts. FN6 The experience of the uncontrolled and divergent activity of
these state maritime courts was largely responsible for the apparently uncontroverted view among the delegates
and drafters of the United States Constitution that there should be a system of national admiralty courts. FN7
Surprisingly little is known about the precise origin of the final operative language of the Constitution,
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Article III, section 2, that extends the judicial power of the United States "to all cases of admiralty and maritime
jurisdiction." We know that the idea of a federal admiralty jurisdiction was contained in the original Pinckney
plan for the Constitution, but the exact language of the grant was drafted by the Committee of Detail during the
deliberations. FN8 We have no record of the reasoning or discussions of the delegates. FN9 It appears,
however, that it was not a matter of great debate. In the Federalist, No. 80, Hamilton declares simply that the
"most bigoted idolizers of State authority have not thus far shown a disposition to deny the national judiciary the
cognizances of maritime causes. These so generally depend on the law of nations, and so commonly affect the
rights of foreigners, that they fall within the considerations which are relative to the public peace."
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of Law,
George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of Georgia.
FN1 See D. Robertson, Admiralty and Federalism 67-70 (1970).
FN2 For an example of such a commission, see I Benedict on Admiralty §
64
(7th ed. 1983).
FN3 7 Fed.Cas. 418, 442 (C.C.D.Mass.1815) (No. 3776).
FN4 See especially Setars, The Formative Era of American Admiralty Law, 5 N.Y.L.F. 9 (1959); Wiener, Notes
on the Rhode Island Admiralty, 46 Harv.L.Rev. 44 (1932); Wroth, The Massachusetts Vice Admiralty Court
and the Federal Admiralty Jurisdiction, 6 Amer.J.Legal History 250 (1962); and Robertson, supra note 1, at
77-93.
FN5 Robertson, supra note 1, at 93.
FN6 This, of course, differed from state to state. For the text and a comparison of the various state laws, see I
Benedict on Admiralty § 81, § § 83- 89 (7th ed. 1983).
FN7 Robertson, supra note 1, at 103.
FN8 Compare Robertson, supra note 1, at 6-17 with Putnam, How the Courts were Given Admiralty Jurisdiction,
10 Corn.L.Q. 460 (1925).
FN9 Many of the records that did exist were deliberately destroyed. See Robertson, supra note 1, at 7-9.
For a survey of the maritime experience of the United States, see James M. Morris, Our Maritime Heritage:
Maritime Developments and Their Impact on American Life (1979).
For an interesting argument that the origin of admiralty jurisdiction grew out of the founders' concern that
public law maritime cases be handled by the federal judiciary, see William R. Castro, The Origins of Federal
Admiralty Jurisdiction in an Age of Privateers, Smugglers, and Pirates, 37 Am.J. of Legal History 117 (1993).
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ADMMARL § 2-1
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Admiralty and Maritime Law
Thomas J. Schoenbaum FNa
Chapter 2. International Shipping And The Law Of The Sea
A. Introduction
§
2-1. International Maritime Law
As detailed in Chapter 1 of this treatise, international maritime law--the lex maritima--was a feature
of the ancient and medieval worlds. The lex maritima developed and grew with the spread of maritime
commerce rather than by the will of any lawmaking authority. With the rise of the nation-state,
particularly beginning in the seventeenth century, the lex maritima was overwhelmed by national law.
FN1
The
lex maritima was part of a larger body of "international" law, the lex mercatoria or law
merchant, which has a similar history.
FN2
Although the lex maritima largely was submerged into national law, it never disappeared entirely.
There always has been an undercurrent of general maritime law recognized by most national courts. FN3
In recent years, with the rise of international trade and the phenomenon of "globalism," a new lex
maritima is emerging. This has two parts. On the one hand, there is a private international law of lex
maritima which consists of norms derived from customs and usage, international arbitrations, contractual
forms in general use such as bills of lading and charter parties, and a growing number of international
conventions. On the other hand, there is a growing public international law of the sea which deals with
ocean space, international shipping and protection of the marine environment. FN4
Today we distinguish the international law of the sea from admiralty and maritime law. The law of
the sea, which we may define as the rules governing the relationships between states regarding the use
and control of the sea and its resources, was not of great importance until the present century. This is
because, until this century, the only important uses of the sea were navigation and fishing. The character
and scope of these traditional maritime pursuits did not require a sophisticated law of the sea.
Until the 17th century, it was assumed that political control and even sovereignty could be asserted
over the sea. In the ancient world, maritime powers such as Rhodes and Carthage sought to control the
use of the sea off their shores. FN5
The Romans took for granted that the Mediterranean was mare
nostrum and under the control of the Empire. FN6
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the two world maritime powers of the 15th century, Spain and Portugal, prevailed upon Pope
Alexander VI to issue a Papal Bull in 1493 that assigned each of them spheres of sovereignty over the
seas. The Spanish obtained the better of the deal since they were awarded everything west of a line
running north and south "one hundred leagues West of the Azores and the Cape Verde Islands."
Even though such claims were ignored by rival powers, it was not until the Dutchman Hugo Grotius
(de Groot) wrote his book Mare Liberum (1608) that the foundations of the legal doctrine of freedom of
the seas were laid. Drawing on natural law, Grotius maintained that the sea is the common property of
mankind and, therefore, ships of every nation are free to navigate the seas. This thesis was disputed by an
English scholar, John Selden, who argued in his book Mare Clausum (1635) that sea frontiers should be
established and that foreign vessels may be allowed to sail in sovereign waters only as a privilege, not by
right.
The doctrine of freedom of the seas triumphed as customary international law, but the reason for its
acceptance was less a matter of intellectual conviction than practical necessity. The maritime nations
realized that each had more to gain than to lose by the doctrine of freedom of the seas, since none were in
a position to monopolize or control the major portion of the oceans.
In recent years, however, the doctrine of freedom of the seas has been substantially modified. Rapid
advances in knowledge about the oceans, their resources and the technological progress necessary to
exploit them have produced profound changes in man's relationship to the sea. FN8
The law of the sea is international law. Since there is no law-giver on the international level,
international law has only one real source--the common will of states. FN9
The acceptance of a rule of
international law by a state may be the result of a positive act, such as a treaty, diplomatic note, or other
official statement; it may also be the result of silence and acquiescence through lack of protest in the face
of an assertion by other states of a rule of law that is generally accepted by the international community of
nations. FN10
Extensive and uniform state practice--even over a relatively short period of time--is
sufficient to create customary international law, which is a general recognition among states that a rule of
law or a legal obligation is involved. FN11
However, a new rule--even if accepted by a great number of
states--is not binding upon a state that has from the beginning opposed it. FN12
Treaties and customary international practice are sources of the law of the sea. Moreover, the
development of the law of the sea has blurred any clear distinction between treaty law and customary law;
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treaties have both declared and codified existing customary law as well as provided the basic impetus for
new state practices that have subsequently become customary law. FN13
This complex process of
lawmaking is likely to continue.
Since World War II, there have been a series of international conferences on the law of the sea, and
negotiations have been almost continuous. In 1958, the Geneva Conference on the Law of the Sea
produced four conventions: (1) The Convention on the Territorial Sea and the Contiguous Zone;
FN14
(2) The Convention on the High Seas;
FN16
FN15
(3) The Convention on the Continental Shelf;
and (4) The Convention on Fishing and the Conservation of the Living Resources of the High Seas. FN17
A second conference on the law of the sea was held in the 1960s, but it adjourned without coming to
any agreement. The third conference on the law of the sea was convened by the General Assembly of the
United Nations in 1973. After several negotiating sessions, this conference produced a Convention on the
Law of the Sea (LOS Convention)
FN18
in 1982. The new convention builds on previous treaties and
attempts a comprehensive and detailed settlement of law of the sea issues. On April 30, 1982, the LOS
Convention was approved by a vote of 130 to 4 (the United States, Israel, Turkey, and Venezuela voted
no) with 17 abstentions. The convention entered into force in 1994 and has been ratified by over 130
nations.
FNa Professor of International Studies, International Christian University, Tokyo, Visiting Professor of
Law, George Washington University, Dean and Virginia Rusk Professor of Law Emeritus, University of
Georgia.
FN1 Gordon W. Paulsen, American and International Maritime Law: Comparative Aspects of Current
Importance, 57 Tul. L. Rev. 1065 (1983).
FN2 A. Lando, The Lex Mercatoria in International Commercial Arbitration
(1985) I.C.L.Q. 747.
FN3 See William Tetley, The General Maritime law, 20 Syracuse J. Int'l & Com. 105 (1994).
FN4 For a comprehensive survey, see R.R. Churchill and A.V. Lowe, The Law of the Sea (3d ed. 1999).
FN5 Early claims to portions of the sea are detailed in Reppy, The Grotian Doctrine of Freedom of the
Sea Reappraised, 19 Fordham L.Rev. 243, 247-51 (1950).
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FN6 The Roman jurist Ulpian is quoted in the Digest of Justinian (8.14.13) as stating that "the sea, which
by nature is open to all, cannot be subjected to private servitude."
This took for granted the political
control of the Roman state.
FN7 There are many examples of assertion of a right to sovereignty over the seas. After the Battle of
Sluys in 1340, the English Crown asserted sovereignty over the "English sea" (Channel). In Venice, it
was the custom of the ruling Doge to perform a ceremony of marriage every year between the city and the
sea. Throwing a ring of gold into the sea, he would speak the words: desponsamus te mare, in signum veri
perpetuique domini, signifying Venice's claim to the Adriatic Sea.
FN8 For a brief summary of these advances in knowledge, see T. Schoenbaum and A.N. Yiannopoulos,
Admiralty and Maritime Law 10-16 (1984). Nations increasingly have become concerned with
establishing property and other rights to exploit the resources of the sea.
Each year the San Diego Law Review prints a symposium devoted to recent developments in the law
of the sea. See Law of the Sea XIX, 24 S.D.L.Rev. 595-793 (1987) and Law of the Sea XX, 25 S.D.L.Rev.
425-579 (1988).
A useful source of documentation is the Annual Review of Ocean Affairs, Law & Policy, bringing
together conventions, decisions, and documents enacted by major international governmental
organizations. Volumes 1 & 2--1985-1987--were published in November 1988 by UNIFO Publishers, Inc.
New volumes will be published each year.
FN9 See Sohn, The Law of the Sea: Customary International Law Developments, 34 Am.U.L.Rev. 271,
279 (1985).
FN10 For example, in 1945, President Truman proclaimed United States jurisdiction and control over the
mineral and other resources of the continental shelf. Presidential Proclamation No. 2667, 59 Stat. 884.
This unilateral act was generally accepted by other states either because they made similar claims or did
not oppose the U.S. claim. This jurisdiction was later confirmed in the 1958 Convention on the
Continental Shelf as reflecting the customary international law on the subject. See generally, Sohn, supra
note 9.
FN11 The International Court of Justice has noted that "the passage of only a short period of time is not
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necessarily, or of itself, a bar to the formation of a new rule of customary international law," provided
there is an "extensive and virtually uniform" state practice on the matter. The North Sea Continental Shelf
Case, [1969] I.C.J.Rep. 3, 43.
FN12 Fisheries Case (U.K. v. Norway), [1951] I.C.J.Rep. 116, 131. International law is based firmly on
reciprocity, and precedents established by a state can be applied against it as well.
FN13 See Gamble and Frankowska, The 1982 Convention and Customary Law of the Sea: Observations,
a Framework, and a Warning, 21 San Diego L.Rev. 491 (1984). See Case Concerning the Delimitation of
the Maritime Boundary of the Gulf of Maine (Canada/United States), [1984] I.C.J. 246, 294, where the
tribunal said that the provisions of the Law of the Sea Convention (1982) covering the continental shelf
and the exclusive economic zone can be regarded as customary international law since they were adopted
"without any objections."
FN14 15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205.
FN15 13 U.S.T. 2312, T.I.A.S. No. 5200, 450 U.N.T.S. 82.
FN16 15 U.S.T. 471, T.I.A.S. No. 5578, 399 U.N.T.S. 311.
FN17 17 U.S.T. 138, T.I.A.S. No. 5969, 559 U.N.T.S. 285.
FN18 United Nations Convention on the Law of the Sea, done at Montego Bay, Dec. 10, 1982 (1982);
U.N.Pub.E. 83 V.5 (1983), reprinted in 21 I.L.M. 1261 (1983). [hereinafter cited as LOS Convention].
For more on the sources of international law, especially the effect of technology on the law of the sea, see,
Pardo, The Law of the Sea: Its Past and its Future, 63 Or.L.Rev. 7 (1984).
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