History of Maritime Law
Seaborne transport was one of the earliest channels of commerce. Rules to resolve disputes involving maritime trade developed along with it. Here are some ancient laws which governed sea, shipping and maritime matters.
- Code of Ur Nammu 2100 BC
- Code of Lipit Ishtar 1934 BC
- Laws of Hammurabi 1758 BC
- Laws of Rome 753 BC t0 565 AD
- Laws of Mauryan Dynasty 321 BC
- Phoenician Laws 300 BC
- Nomos Rhodion Nautikos 600 – 800 AD
- Ordinaments et Consuetudo maris 1063 AD
- Rules of Oleron 1160 AD
- Amalfian Laws, Italy about 1200 AD
- Laws of Hanseatic league 1300-1700 AD
- Islamic Laws and Byzantine Maritime Law.
‘Sea Laws’ was a title given by writers on maritime law in 16th century, to certain medieval collections of usages of the sea recognized as customary law, either by judgments of maritime courts or through usage of merchants and shipmasters. To the former class belong sea laws of Oleron, embodying usages of mariners of the Atlantic. Sea laws of Visby, reflected customs of mariners of North Sea and Baltic. Factories belonging to Visby merchants at Novgorod, linked trade of the Baltic to that of the Black Sea.
How and in what manner these “Medieval Judgments of the Sea” came to be collected is not known. Eleanor of Aquitaine, ordered records to be made of judgments of Maritime Court of Oleron to serve as law amongst mariners of Western Sea. Earliest collection of “Laws of Oleron,” is described in Black Book of the Admiralty. In England, justiciaries of the King were instructed to declare and uphold laws and statutes, made to maintain peace and justice amongst people of every nation passing through ‘Sea of England’. An English translation made by a Registrar of the court, was introduced into ‘Black Book of the Admiralty’. This manuscript came into the College of Advocates in 1685 but was lost. Re discovered much later, it was placed in archives of the Admiralty Court. Sea Laws of Oleron were translated into Castilian by order of King Alphonso VI. Its 15th century handwritten Gascon text is preserved in archives of Livorno.
Parent stock of Visby sea laws dated 1240 was apparently a code preserved in chancery of Lubeck, in the Old Saxon tongue. A manuscript of 1533 has been found in Guildhall of Lubeck. It contains a low German version of this collection, “the water law or sea law, which is the oldest and highest law of Visby.” Word “belevinge” (judgment) appears in front of each article. Introductory clause to its thirty-seventh article says “This is the ordinance which community of skippers and merchants have resolved upon, amongst themselves as ship law, which the men of Zeeland, Holland, Flanders hold, with the law of Visby, which is the oldest ship law.” After the seventy-second article is written, “Here ends the Gotland sea law, which community of merchants and mariners have ordained and made at Visby, that each may regulate himself by it”. Thus it appears that the Visby sea laws, like the Oleron sea laws, have gathered bulk with increasing years. Earliest historical records of Rhodian Law include Law and customs of the Hanseatic League. Exhaustive criticism of Rhodian sea law dated 1909 is valuable material not only on the Rhodian sea law, but on various other sea laws in force in the Mediterranean.
Admiralty Courts originated in England in Saxon times. Admiralty law was introduced into England by Eleanor of Aquitaine while she was acting as regent for her son, King Richard the Lionhearted. She had earlier published admiralty law in Oleron Island in 1160. Article VI of ‘Rolls of Oleron’ contains the doctrine of maintenance and cure and requires a ship owner to provide free medical care to an injured seaman serving the ship. Obligation of “maintenance” also involves providing a seaman basic living expenses while convalescing. Authority of kings to administer justice in respect of piracy, or other offences on the high seas was well established in time of Edward III in mid 14th century. Islamic law also influenced international Maritime Law including derivations from civil Law but is not rooted in it.
Term Admiralty law is peculiar to UK and some countries of former British Empire where separate courts may exist to administer laws governing maritime activities. Admiralty courts in UK are civil law courts largely based on Law of Justinian. They handle all admiralty cases in England and try to steer away from British common law. This includes relations between entities which operate ships across oceans for transportation, commerce and trade. Though each legal jurisdiction is governed by its own legislation on maritime matters, some features exist in all countries pertaining to law governing sea and ships. Significant volume of International Maritime Law has been developed recently through many conventions and multilateral treaties. It covers Maritime and commercial activities but differs from country to country. Today, Admiralty law is a body of both domestic law governing maritime activities, and private international law governing relationships between private entities which operate ships on the oceans. It deals with transportation of passengers and goods by sea, shipping, maritime commerce, navigation and seafarers and covers commercial activities even if land based but maritime in character.
Admiralty law is characterized by inclusion of international law but is distinct from ‘Law of the Sea’, which is a body of public international law dealing with navigational rights, mineral rights, jurisdiction over coastal waters and laws governing international relations. Each jurisdiction usually has its own enacted legislation governing maritime matters.
Islamic law departed from Roman and Byzantine maritime laws to make major contributions to admiralty law such as Muslim sailors being paid a fixed wage “in advance” with an understanding that they would owe money in the event of desertion or malfeasance, in keeping with Islamic conventions in which contracts should specify “a known fee for a known duration.” In contrast, Roman and Byzantine sailors were “stakeholders in a maritime venture, in as much as captain and crew, with few exceptions, were paid proportional divisions of a sea venture’s profit, with shares allotted by rank, only after a voyage’s successful conclusion.” Muslim jurists also distinguished between “coastal navigation, or cabotage”, and voyages on the “high seas”, and made shippers “liable for freight in most cases except for seizure of both the ship and her cargo”. Islamic law “departed from Justinian’s Digest and the Nomos Rhodion Nautikos in condemning slave jettison.” Islamic Qirad was a precursor to the European commenda, limited partnership. “Islamic influence on the development of an international law of the sea” can thus be discerned alongside that of the Roman influence.
High Court of Admiralty in UK, was an instrument of the Lord High Admiral to hear disputes and offences by a judge deputed by him. In due course it also started hearing civil disputes pertaining to sea thus usurping jurisdiction of Common Law Courts. In the 13th and 14th centuries, Lawyers of Common Law Courts objected to this encroachment. Admiralty Jurisdiction Act, 1389 catered to this objection and by 1391, pleas and quarrels, whether on land or sea became triable by Common Law Courts. During the time of William IV, wrecks at sea, collision, salvage, possession of ships, bottomry and seamen’s wages came under Admiralty Court. Most common law countries follow English statutes and case law. Other countries such as Panama, have also established their own maritime courts which regularly decide international cases. Malayasia has recently established its own Admiralty court.
After U.S. Constitution was adopted in 1789, admiralty law was gradually introduced into US Law through admiralty cases. American lawyers such as Alexander Hamilton in New York and John Adams in Massachusetts who were prominent in the American Revolution were practicing admiralty and maritime lawyers. Dr. Lushington became Judge of the High Court of Admiralty in 1838. Admiralty Courts act was passed in 1840. Its jurisdiction included cognizance of mortgage of ships, questions of legal title, division of proceeds of sale on suits of possession, claims for salvage services, provision of necessaries to a ship as well as claims for towage.
From 1840 to 1861, Laws were enacted for right of arrest of ships for claims of necessaries supplied and towage services rendered to foreign ships. Justice Oliver Wendell Holmes was an admiralty lawyer before ascending to the Supreme Court of USA. In Rem jurisdiction was expanded in 1873-75 by Supreme Court of Judicature Act, Consolidated by a 1925 Act, replaced by Administration of Justice Act, 1956 and again by Supreme Court Act of 1981.
Article III, Section 2 of US Constitution, grants original jurisdiction to U.S. federal courts over admiralty and maritime matters. But this jurisdiction is not exclusive. Maritime cases can also be heard in state or federal courts. Some cases can only be heard in federal courts such as Limitation of Ship owner’s Liability, Arrests in Rem etc., because they basically require the court to exercise jurisdiction over maritime property. Claims for cargo damage shipped in international trade are governed by US COGSA, based on Hague Rules.
Admiralty Courts assume jurisdiction if a ship is present in their territorial waters irrespective of whether she is national or not and whether registered in that country or not and regardless of residence or domicile of her owners. Thus a ship is arrested to retain jurisdiction. State owned ships are usually immune from arrest. Banks which loan money to purchase ships, vendors who supply ships with necessaries like fuel and stores, seamen who are due wages, and many others have a lien against the ship to guarantee payment. The ship must be arrested or seized to enforce such a lien. When property is lost at sea and rescued by another, the rescuer is entitled to claim a salvage award on that property. This Law applies only to saving of property, not life.
An action in Rem lies in Indian High Courts, against a foreign owned ship, not having place of residence or business in India, for cause of action alleged to have arisen by reason of a tort or a breach of obligation arising from carriage of goods from a port in India to a foreign port.
Theoretically, Admiralty jurisdiction exercised by Indian High Courts, is still governed by the English Admiralty Courts Act, 1861, Colonial Courts of Admiralty Act, 1890 and by Colonial Courts of Admiralty (India) Act, 1891. The 1890 British Act did not incorporate any English statute into Indian law but equated admiralty jurisdiction of Indian High Courts over places, persons, matters and things to that of English High Court. Thus jurisdiction of Indian High Courts was not frozen by the 1890 Act and could not be fettered to the 1861 Imperial Statute, which was substantially repealed later. Today all Indian high courts have Admiralty Jurisdiction.
Entire institution of Maritime liens was devised only because a ship goes from country to country. If she earned a liability in a foreign country it would be difficult if not impossible to trace and hold the owners to account to satisfy local claims. When a ship is in local jurisdiction, it is expedient to hold HER responsible to satisfy claims of locals. But if she is in her own country, owners can be held accountable to satisfy all claims of locals. This scenario changed from twentieth century with ships being registered under flags of convenience when owners are not nationals of that country. Thus, law pertaining to maritime liens needs to be widened especially since, a maritime lien cannot be effective for liabilities which are more than value of the ship. In todays scenario a ship can earn liabilities many times her own value. Therefore owners ought to be answerable for ALL her liabilities regardless of her value. This has been alleviated somewhat, with CLC and Fund conventions.
Capt. A K Bansal,
L.L.B. (Hons) London,
Master Mariner, Bar at Law