Maritime law also called admiralty law, or admiralty, the body of legal rules that govern ships and shipping. Maritime law and “law of the sea” have, etymologically, the same meaning.
The former term is generally applied to private shipping law, whereas the latter, usually prefixed by “international,” has come to signify the maritime segment of public international law. The Convention on the Law of the Sea, on the other hand, is a UN agreement regarding territorial waters, sea lanes, and ocean resources. 119 nations originally signed the Convention on Dec. 10, 1982.
Origins – Maritime law in the jurisprudence of the Rhodians
The Rhodians (people from the Greek island of Rhodes) were the earliest people that actually created, absorb and dictated a system of marine law. They obtained the governance of the seas approximately one thousand years before the Christian era and were celebrated for their naval power and discipline. Their laws concerning navigation were received at Athens, and in all the islands of the Aegean Sea, and throughout the coasts of the Mediterranean, as part of the law of nations. Thanks to the wisdom of Roman law for salvaging, through all the destruction of nations, segments of this once celebrated maritime code, whose parts are still incorporated in current maritime law.
The Athenians, though, became the incomparable masters of the seas which would mean the masters of the ancient world. Encouraged, by their laws, navigation, and trade; and there was a particular jurisdiction at Athens for the cognizance of contracts, and controversies between merchants and mariners. There were numerous laws relative to the rights and interests of merchants, and of their navigation; and in many of them there was an endeavor to remove, as much as possible, the process and obstacles which afflicted the operations of commerce.
We are, therefore, to look to the collections of, the Byzantine-Greek Emperor Justinian, for all that remains to us of the commercial law of the ancients. The Romans did not absorb nor were they interested in any code of maritime regulations, as they were primarily distinguished by the method and system which they gave to their municipal law. They were quite contented with the maritime codes of the republic of Rhodes. The genius of the Roman government was military and infrastructural, and not commercial.
The collection of laws, under the title of Rhodian laws, was published at Basle, in 1561, and at Frankfort, in 1596. The Rhodian laws, by this authoritative recognition, became rules of decision in all maritime cases in which they were not contrary to some express provision of the Roman law.
They were truly, as Valin (French jurist of the 18th century, specialized in maritime law) has observed; the cradle of nautical jurisprudence.
Maritime legislation of the middle ages – the Amalphitan Table
After the devastation of the Western empire of the Romans and the resumption of trade and commerce, maritime rules became necessary. The earliest code of modern sea laws was compiled for the free and trading republic of Amalphi, in Italy, about the time of the first crusade, towards the end of the eleventh century. This known became known as the Amalphitan Table and superseded the ancient laws, and its authority was acknowledged by all the states of Italy.
The Consolato del Mare
Other states and cities began to form collections of maritime law; and a compilation of the usages and laws of the Mediterranean powers was made and published, under the title of the Consolato del Mare. This commercial code is said to have been digested at Barcelona, in the Catalan tongue, during the middle ages, by order of the kings of Aragon. The Spaniards vindicated the claim for their country. Contrary to this claim come the Pisans, in Italy proving that they compiled this maritime code due to their maritime prosperity. Others lay claim that it is a collection of maritime laws De Jure Mercatorum, hold it to be a collection made in the time of the crusades, from the maritime ordinances of the Greek emperors, of the emperors of Germany, the kings of France, Spain, Pisans of Syria, Cyprus, the Baleares, and from those of the republics of Venice and Genoa. It was probably a compilation made by private persons; but whoever may have been the authors of it, and at whatever precise point of time the Consolato may have been compiled, it is certain that it became the common law of all the commercial powers of Europe.
The Laws of Oleron
The laws of Oleron were the next collection in point of time and celebrity. They were collected and promulgated in the island of Oleron, on the coast of France, in or about the time of Richard I, to include their interests for navigation on the coasts of the Atlantic.
The laws of Oleron were borrowed from the Rhodian laws, and the Consolato, with alterations and additions, adapted to the trade of western Europe. They have served as a model for subsequent sea laws, and have at all times been extremely respected in France, and perhaps equally so in England, though not under the impulse of the same national feeling of partiality. They have been admitted as an authority on admiralty questions in the courts of justice in this country.
The Laws of Wisbuy
The laws of Wisbuy were compiled by the merchants of the city of Wisbuy, in the island of Gotland, in the Baltic Sea, about the year 1288. It had been contended by some writers, that these laws were more ancient than those of Oleron, or even than the Consolato. But Cleirac says, they were but a supplement to the laws of Oleron and constituted the maritime law of all the Baltic nations north of the Rhine, in like manner as the laws of Oleron governed in England and France, and the provisions of the Consolato on the shores of the Mediterranean. They were, on many points, a repetition of the judgments of Oleron, and became the basis of the ordinances of the Hanseatic League.
The renowned Hanseatic association was begun at least as early as the middle of the thirteenth century, and it originated with the cities of Lubec, Bremen, and Hamburgh. The free and privileged Hanse Towns became the asylum of commerce, and the retreats of civilization, when the rest of Europe was subjected to the iron sway of the feudal system, and the northern seas were infested by “savage clans, and roving barbarians.” Their object was a mutual defense against piracy by sea, and pillage by land. They were united by a league offensive and defensive and with an inter-community of citizenship and privileges. The association of the cities of Lubec, Brunswick, Dantzick, and Cologne, commenced in the year 1254, according to Cleirac, and in 1164, according to Azuni; and it became so safe and beneficial a confederacy, that all the cities and large towns on the Baltic, and on the navigable rivers of Germany, to the number of eighty-one, acceded to the union. One of the means adopted by the confederates to ensure prosperity to their trade, and to protect them from controversies with each other, was the formation of a code of maritime law. The consuls and deputies of the Hanseatic league, in a general convention at Lubec in 1614, added to their former ordinances of 1597, (or 1591, as Azuni insists,) from the laws of Oleron, and of Wisbuy, and establish a second and larger Hanseatic ordinance, under the title of the Jus Hanseaticum Maritimum. This digest of nautical usages and regulations was founded evidently on those of Wisbuy and Oleron, and from the great influence and character of the Confederacy, it has always been deemed a compilation of authority.
The development of maritime legislation into modern times
But all the former ordinances on maritime law were eclipsed by the French ordinance upon commerce in 1673, whose negotiability was prominent; and more especially by the celebrated marine ordinance of 1681. This monument of legislative wisdom in the reign of Louis XIV was erected under the influence of the genius and patronage of Colbert, who was not only the minister and secretary of state to the king but inspector and general superintendent of commerce and navigation. It was by the special direction of that minister, and with a view to illustrate the advantages of the commerce of the Indies. It required such a work as the ordinance, to consolidate the establishment of all the maritime power.
In continental Europe, loss of uniformity in the maritime law began with the late Renaissance and gained momentum with the rise of nationalism in the 17th century, which witnessed adoption of the Maritime Code of Christian XI of Sweden (1667), the Marine Ordinances of Louis XIV of France (1681), and the Code of Christian V of Denmark (1683). Of these, as we already described, the most significant was the Ordinances, prepared under Louis XIV’s finance minister, Jean-Baptiste Colbert,
The individuality of the maritime law—its “separation” from other types of law—was accentuated by the Ordinances, which gathered in one code all of the criminal, private, procedural, and public laws relating to the sea.
Although the Code de Commerce was widely adopted in the first half of the 19th century, in some cases by choice and others by conquest, the German Commercial Code of 1861, revised in 1897, marked a departure from French law, and revisions of the Spanish and Italian codes showed the influence of the new German law. These, in turn, had their effect in countries under an Italian and Spanish influence. The High Court of Admiralty, which sat in London, and the Vice Admiralty Courts, set up in the other ports, were a later development.
Although the powers of the English Admiralty are today quite broad, in practice it is rare for cases other than those involving marine collisions and salvage to be brought before it. Controversies respecting charter parties, ocean bills of lading, and marine insurance, for example, are more generally brought before the Commercial Court.
In the United States, the federal district courts are by statute granted original jurisdiction, “exclusive of the courts of the States, meaning that if a maritime claimant wishes to have his claim litigated by admiralty procedure, he must invoke the admiralty jurisdiction of the district courts. However, he is free to sue in a state court, unless the defendant is a citizen of another state, in which case the suit may be tried as an ordinary civil action in the district court.
Components of maritime law
Although admiralty actions are frequently brought in personam, against individual or corporate defendants only, the most distinctive feature of admiralty practice is the proceeding in rem, against maritime property, that is, a vessel, a cargo, or “freight,” which in shipping means the compensation to which a carrier is entitled to the carriage of cargo.
Under American maritime law, the ship is personified to the extent that it may sometimes be held responsible under circumstances in which the shipowner himself is under no liability. The classic example of personification is the “compulsory pilotage” case. Some state statutes impose a penalty on a shipowner whose vessel fails to take a pilot when entering or leaving the waters of the state. Since the pilotage is thus compulsory, the pilot’s negligence is not imputed to the shipowner. Nevertheless, the vessel itself is charged with the pilot’s fault and is immediately impressed with an inchoate maritime lien that is enforceable in court.
Maritime liens can arise not only when the personified ship is charged with a maritime tort, such as a negligent collision or personal injury, but also for salvage services, for general average contributions, and for breach of certain maritime contracts.
In a proceeding in rem, the vessel, cargo, or freight can be arrested and kept in the custody of the court unless the owner obtains its release by posting a bond or such other security as may be required under the applicable law or as may be acceptable to the plaintiff. More frequently, however, the owner will post security to avoid a threatened arrest, and the property never has to be taken into custody. When the judgment is for the plaintiff in a proceeding in rem, there will be a recovery on the bond or other security if the owner of the property does not pay; or, if security has not been posted, the court will order the property sold, or the freight released, in order to satisfy the judgment. The sale of a ship by an admiralty court following a judgment in rem divests the ship of all pre-existing liens—and not merely those liens sought to be enforced in the proceeding in rem. By way of contrast, the holder of an in personam judgment against a shipowner can, like any judgment creditor, have the ship sold in execution of the judgment; but such a sale, unlike the sale under an admiralty judgment in rem, does not divest existing liens; the purchaser at the execution sale takes the ship subject to all such liens. Thus, an in rem proceeding has decided advantages over a proceeding in personam in a case in which the shipowner is insolvent.
Efforts have been made from time to time to increase the security value of ship mortgages, to encourage lending institutions to finance vessel construction, but these efforts have not been very successful, largely because of differences in national laws respecting the relative priorities of mortgages and maritime liens. (Under general maritime law there is a complex hierarchy of maritime liens; that is to say, in a proceeding that involves distribution of an inadequate fund to a number of lien claimants, liens of a higher rank will be paid in full in priority over liens of a lower rank, and in most countries a ship mortgage ranks lower than a number of maritime liens.) Attempts were made to harmonize some of these conflicts by international conventions signed in 1926 and 1976, but the first failed to win widespread support and, as of the end of 1983, the second had been ratified by only half of the signatories required for the convention to enter into force.
The function of ships, other than warships, pleasure craft, and service vessels of various types is of course transportation of cargoes and passengers. In the “jet age,” the passenger-carrying segment of the shipping industry has lost much of its former importance, but the quantity of goods transported by water continues to grow as the world economy expands.
The great majority of the contracts governing the carriage of goods by water are evidenced either by charter parties or by bills of lading. The term charter party (a corruption of the Latin Carta Partita, or “divided charter”) is employed to describe three widely differing types of contracts relating to the use of vessels owned or controlled by others. Under a “demise” or “bareboat” charter, the shipowner delivers possession of the vessel to the charterer, which engages the master and crew, arranges for repairs and supplies, and, in general, functions in much the same way as an owner during the term of the charter. A much more common arrangement is the “time” charter, where the shipowner employs the master and crew, and the charterer simply acquires the right, within specified limits, to direct the movements of the vessel and determine what cargoes are to be carried during the charter period. Under both demise and time charters, the charterer pays charter hire for the use of the vessel at a specified daily or monthly rate.
The third type is the “voyage” charter, which is essentially a contract of affreightment, or carriage. Most voyage charters provide for the carriage of full cargoes on one voyage or a series of voyages, but occasionally a charterer contracts for the use of only a portion of the carrying capacity of the vessel, in which case the governing contract is described as a “space” charter. Under a voyage charter, it is customary for the master or his agent to issue a bill of lading to the shipper, who is usually the charterer, although as between shipowner and charterer the voyage charter remains the governing contract of carriage; the bill of lading serves only as a receipt and as a document of title to the goods. Ocean bills of lading are usually in the order form; that is, they call for delivery to the order of the shipper or of some other designated party. Such a bill of lading may be negotiated in much the same way as a check, draft, or another negotiable instrument, which means that a bona fide purchaser of the bill of lading takes it free and clear of any defects not appearing on its face. Thus, if cargo is externally damaged on shipment, but the damage is not noted on the bill of lading, the carrier will be barred from establishing that the cargo was in fact damaged before it came into the carrier’s custody. Once a bill of lading issued under a voyage charter is negotiated to a bona fide purchaser, it becomes the governing contract between the carrier and the holder of the bill.
When a ship strands or collides with another vessel, substantial cargo loss or damage may result. If the casualty is found to have been caused by a sea peril or an error in navigation, there will be no liability if the goods are being carried under a statutory or contractual provision based upon the Brussels Convention on Limitation of Liability (1923), which incorporated the so-called “Hague Rules.” If, however, the casualty was the result of the carrier’s failure to exercise due diligence to make the ship seaworthy and to see that it was properly manned, equipped, and supplied, the carrier will be held responsible.
Limitation of Liability
A distinctive feature of the maritime law is the privilege accorded to a shipowner and certain other persons (such as charterers in some instances) to limit the amount of their liability, under certain circumstances, in respect of tort and some contract claims. In some countries, including the United States, the limit, except as to claims for personal injury and wrongful death, is the value of the ship and the earnings of the voyage on which it was engaged at the time of the casualty. On the other hand, in the United Kingdom and the other countries that have ratified the Brussels limitation of liability convention of 1957 or enacted domestic legislation embracing its terms, the limit is £28, or its equivalent, multiplied by the adjusted net tonnage of the vessel, regardless of its actual value. The basic condition of the privilege is that the party asserting it must be free from “privity or knowledge,” in the words of the United States statute, or “actual fault or privity,” in the words of the convention. This formula means, generally speaking, that the shipowner is entitled to limit his liability for the negligence of the master or crew, but not for his negligence or that of his managerial personnel. In a sense, the limited liability of shipowners may be compared to the limited liability that any investor may now achieve by incorporating his enterprise. The limited-liability idea in maritime law, however, long antedates the emergence or invention of the modern corporation or limited company; its early appearance in maritime law may be taken as a recognition of the extraordinary hazards of seaborne commerce and the need to protect the adventurous shipowner from the crushing burden of liability—that is, in the days before even the most primitive forms of insurance had become available. Some modern commentators have suggested that the peculiar features of maritime limitation of liability have outlived their usefulness and that the development of insurance and the modern limited-liability company has radically altered the conditions out of which the shipowners’ privilege originally grew. Although no maritime country has yet gone to the length of abolishing limitation of liability, ship owning interests, appear to have become concerned about the possibility of such a development.