HISTORY AND DEFINITION OF MARITIME LAW

HISTORY AND DEFINITION OF MARITIME LAW

1. Historical Perspectives on Maritime Law

   1. Ius Commune

• 
  The ius commune is a law common to single or multiple jurisdictions and is composed of broad general principles and is usually unwritten at first and then often codified. It is composed of the maritime customs, codes, conventions and practices from the earliest times to the present. It has no international boundaries and exists in any particular jurisdiction unless limited or excluded by a particular statute.
  
• 
  General maritime law crosses national boundaries unless limited or excluded by statute – declared by Antoninus (see below).
  
• 
  Rhodian law, in the 8^th or 9^th century B.C. was a lex maritime, some of which was eventually recorded.
  
• 
  Rhodian Sea-Law also became a body of rules on liens and ship mortgages.
  
• 
  The lex maritime was quite uniform through Western Europe until the 16^th century – primarily oral at first then codified which brought it greater influence. The documents which exerted influence on it were a compilation of specific decisions rendered by merchant judges in real life cases accompanied by loosely formulated principles
  
• 
  The civil law also had an influence on this body of law.
  
• 
  The lex maritima is ius commune and exists in Canada and many of the world's shipping nations as the general maritime law. It has two main sources: (i) the lex maritima, which developed as part of the lex mercatoria and evolved primarily from the Roles of Oleron from the 12th century; and (ii) the common forms, terms and practices of the shipping industry (e.g., carriage of goods by sea under bills of lading, and the hire of ships and services under charterparties) that are international examples of accepted general maritime law.
  
• 
  Ask ourselves the question of whether there is a general maritime law and if so, how has it developed.
  

• 
  Early maritime law was not characterized by conflicts, because until at least the end of the 16th century in Europe, there was considerable homogeneity in maritime law. Courts were not faced with having to choose between competing substantive laws. The ius commune obviated the need for conflict of laws.
  

• 
  This uniformity did not exist for other types of laws, conflicts were well known on the Continent as early as the 13th century.
  
• 
  The tradition of the courts was to refuse to hear foreign cases or at these to refuse to apply foreign law. This practice thus rejected both conflicts and the ius commune.
  

1. Lex Maritima (U.K.)

• 
  There is an obvious civilian influence with respect to the lex maritima.
  
• 
  Sir Thomas Scrutton: "The foundations of admiralty are thus to be found in: (1) the civil law, (a) as embodied in the Law Merchant, especially in the Laws of Oleron, (b) as introduced by subsequent clerical judges, mainly in procedure; (2) in subsequent written and customary rules adopted in view of the developments of commerce."
  
• 
  Browne: “The instance court [of Admiralty] is governed by the civil law, the laws of Oleron, and the custom of the admiralty modified by statute law”.
  
• 
  In the Common Law, once you have jurisdiction, it means that you have a remedy – once the court’s jurisdiction is established, the substantive law is found in the general maritime law – the right of a lien exists without there being legislation creating maritime liens and mortgages. You do not need a Code of Procedure – in the Civil Law you do.
  

• 
  Today, the general maritime law still provides the following rights (among others):
  

1. 
   Maritime liens for wages
   
2. 
   Necessaries liens (statutory rights in rem)
   
3. 
   The divided damages rule in ship collision as opposed to contributory negligence or proportionate fault (remain unchanged until it was replaced by the proportionate fault rule by the Maritime Conventions Act, 1911)
   

2. General Maritime Law

Emporor Antoninus “I indeed am Lord of the World, but the law is lord of the sea. Let it be judged by Rhodian Law, prescribed concerning nautical matters, so far as no one of our laws is opposed”

1. General Maritime Law in Canada

• 
  Where the Federal Court of Canada exercises admiralty jurisdiction in Canada, a maritime right exists without a statute being required.
  

• 
  Canadian maritime law, as defined in s.2 of the Federal Court Act (and reinforced by s.42), is composed of 2 categories as was declared by the Supreme Court in Buenos Aires Maru: (a) English maritime law prior to 1934 as such law may have been amended by Parliament or has developed through judicial precedent; (b) statutory recognition of Canadian maritime law as a body of federal law dealing with all claims in respect of maritime and admiralty matters (unlimited jurisdiction in relation to maritime and admiralty matters, not frozen in time from 1934 and should be interpreted within the modern context of commerce and shipping)…
  
• 
  Canadian maritime law is a body of federal law encompassing the common law principles of tort, contract and bailment…it is uniform throughout Canada…and is that body of law defined by s.2 of the Federal Court Act…that law is the maritime law of England as it has been incorporated into Canadian law and is not the law of any province of Canada – regrettably overlooked the essentially civilian nature from which this body of law flows (Chartwell Shipping may have rectified this)
  

• 
  The Supreme Court has declared that the following subjects (which have no appropriate federal substantive statute) are nevertheless of the Federal Court of Canada's admiralty jurisdiction:
  

1. 
   Shipment by sea from France to Canada (Tropwood)
   
2. 
   General maritime law and not provincial law applies to the sale of a ship (Antares Shipping)
   
3. 
   Third party claim from defective resocketting of towing cable fell within scope of jurisdiction (Wire Rope Industries)
   
4. 
   Also applies to marine insurance even though at the time there were only provincial acts (Triglav) - in 1993, Parliament adopted the Canadian Maritime Insurance Act, confirming that provincial marine insurance acts were ultra vires
   
5. 
   English common law of agency is part of the Canadian maritime law and applies to contracts made by a shipping agent with a stevedore, even in Quebec (Chartwell Shipping)
   
6. 
   Maritime torts, even in respect of pleasure craft on inland navigable waterways are governed by general maritime law (Whitbread) – only two ship collisions are covered by the Canada Shipping Act…
   
   • 
     “…a ius commune in maritime la developed, first orally, and then in writing, and still exists and flourishes
     

(CB 132).

1. General Maritime Law in the US

• 
  The whole body of general maritime law existing in 1789 became part of US law. Much of American maritime law today is civilian in nature and origin. Much is unwritten and appears in the modern American lex maritima.
  
• 
  The civil law influence on the U.S. Maritime Law: One of the first laws adopted by the American Congress - “and the forms and modes of proceedings in causes of equity, and of admiralty and maritime jurisdiction, (a) shall be according to the course of the civil law…course of English admiralty was not a guide in such matters…the body of general maritime law existing in 1789 became part of U.S. law.
  

• 
  In the US, where marine insurance is still uncodified, there is a conscious effort by the USSC to keep American decisions in line with the general principles of English law on marine insurance.
  
• 
  General Principles
  
• 
  abandonment – U.S. Limitation Act of 1851 – responsible only up to value of ship after collision and freight due, if any, and $420 per ton for all personal injury or death claims
  
• 
  liens for repairs, supplies, towage, use of dry dock, etc. legislated upon with U.S. Ship Mortgage Act of 1920
  
• 
  divided damages abandoned in 1975 with Reliable Transfer
  
• 
  remedy for wrongful death recognized in Moragne – civilian principles invoked
  
• 
  conflict decisions in US maritime cases (domestic/international) stress the general maritime law as a separate body of law, applicable in all cases of maritime jurisdiction to the exclusion of state law
  
• 
  the US doctrine of forum non conveniens originates in federal maritime law and has been a prominent concept of that law since 1801
  
• 
  maintenance and cure expenses, the costs of normal medical care and treatment for a reasonable period of time, must be borne by the ship-owner
  
• 
  Also, equity has been applied as part of the general maritime law of the US. Because equity is also known in the civil law, its application in US admiralty cases may be seen as an example of a ius commune in a contemporary maritime law, linking civil and common law traditions.
  

1. Schiffs Leonhardt v. A. Bottachi (1986), AMC 1 (11^th Circuit, USA)

• 
  Constitution established a separate jurisdictional base in the federal courts for admiralty cases, extending the judicial power of the U.S. to all cases of admiralty and maritime jurisdiction. This grant of jurisdiction implied the adoption of the then existing maritime law as the law of the U.S.
  
• 
  Federal courts are empowered to apply maritime procedure and law as it existed at the time of the Constitution’s adoption with such modifications as changing needs and circumstances require, subject to congressional alteration of that law.
  
• 
  Process Act of 1789 required federal courts to apply civil rather than common law in maritime courts. Also, the 1792 Process Act required applying principles/rules which belonged to admiralty courts not common law.
  
• 
  Thus, admiralty attachment clearly exists in US maritime law and can fit under the requirements of procedural due process
  

1. Other Examples of the General Maritime Law

• 
  In England, prior to the enactment of the Marine Insurance Act 1906, the law of marine insurance was part of the common law. The lex mercatoria therefore continues to play a significant role in this vital area of maritime law. In Canada, the Marine Insurance Act 1993 is a virtual replica of the UK Act.
  

these are both very civilian concepts but are now contemplated by statutorily jurisdictional provisions in the U.K. and Canada – they are never practices today

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