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Maritime Law as a Mixed Legal System

(with particular reference to the distinctive nature of American maritime law, which benefits from both its civil and common law heritages)

final version published in (1999) 23 Tul. Mar. L.J. 317

William Tetley, Q.C.(1)


I. Preface

II. Introduction

III. The Plan and Purpose of this Paper

IV. Maritime Law Is A Complete Legal System

V. The Two-fold Composition of Maritime Law

VI. Precedence of National Statutes and International Conventions

VII. The Civilian Origins of Maritime Law

    1) Maritime law as civilian

    2) The early maritime codes

    3) Early civilian concepts in the maritime law

    4) The Admiralty law of England

VIII. The Influence of the Common Law on Maritime Law

IX. The Reception of the General Maritime Law into U.S. Law

    1) Introduction

    2) Reception of the general maritime law

X. Classic Civil Law Principles Found in American Maritime Law

    1) Shipowners' limitation of liability and abandonment

    2) The attachment

    3) Proportionate fault

    4) The codification of maritime lien law

    5) Maritime liens are rights

    6) Wrongful death

    7) Liens on cargo for demurrage without contract

    8) Equity

    9) Marine insurance

    10) General average

    11) Salvage

    12) Maintenance and cure

XI. Classic Common Law Principles Found in American Maritime Law

    1) The ship mortgage

    2) The collision lien

    3) Arrest in rem

    4) No cure/no pay in salvage

XII. The Importance of Understanding the Civil and Common Law Origins of American Maritime Law

    1) Schiffaharts. Leonhardt & Co. v. A. Bottacchi, 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985) - the             attachment

    2) Ocean Ship Supply v. Leah, 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984) - recognition of foreign liens

    3) American marine insurance law - the absence of a statute

    4) Understanding the Hamburg Rules as opposed to the Hague and Hague/Visby Rules

    5) Understanding the redundancy of general average

    6) Understanding salvage old and new

XIII. Conclusion

XIV. Epilogue

(with particular reference to the distinctive nature of American maritime law, which benefits from
both its civil and common law heritages).

Prof. William Tetley, QC

I. Preface

My first words are to say how honoured I am to be invited to speak to you at this inaugural lecture of a series in my name. I am also very flattered that Chief Judge Morey L. Sear, Robert B. Acomb, Jr., Chairman of the Permanent Advisory Board of the Tulane Admiralty Law Institute, and so many members of the maritime bar of New Orleans are present, along with colleagues from the Tulane Law School, led by Dean Edward Sherman and Professor Robert Force, Director of the Tulane Admiralty Law Institute.

My connection with Tulane goes back to 1982, when I spoke at a Tulane Admiralty Law Institute Conference in Greece, and then in 1983, I became a Visiting Professor at the invitation of Paul R. Verkuil, who was Dean at that time.

Over the years, I have learned so much from the Tulane Law School, this great law faculty, and from the members of the Louisiana Bar, in that incomparable jurisprudential crucible called the Eastern District of Louisiana. It is I who am indebted and it is my writings which reflect the superb civil law/common law/maritime law matrix which has developed in the Tulane Law School and the New Orleans Bar.

Please therefore receive my sincerest thanks.

II. Introduction

Much has been written of late of "mixed jurisdictions" and the fact that Louisiana is an excellent example of such a jurisdiction, with its rich composite of civil and common law. Louisiana as well is a living example of a mixed jurisdiction, having recently adopted a vibrant new civil code.

On the other hand, most of Louisiana's public law statutes are common law in style and drafting and much of the jurisdiction, practice and procedure of the courts also follows the common law tradition.

Thus Louisiana is a vigorous, enlightened mixed jurisdiction.

But Louisiana has another important and distinctive asset, being the rich American maritime law, so actively practised in the Eastern District of Louisiana and the 5th Circuit. That American maritime law is civilian in origin, but heavily tempered by the common law. In fact, American maritime law, of all national maritime laws, best demonstrates this complete joinder of the civil law and the common law traditions.

It is essential for students of maritime law, practising lawyers, professors, judges and (hopefully) even the public, to understand the mixed nature of American maritime law and to know which parts are civilian and which parts are common law in origin. Only then can one understand the full purport, for example, of the maritime attachment (see Schiffaharts. Leonhardt v. Bottacchi 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985), marine insurance (see Standard Oil Co. of New Jersey v. U.S. 340 U.S. 54, 1951 AMC 1 (1950)), equity (see Vaughan v. Atkinson 369 U.S. 527, 1962 AMC 1131 (1962)), and American maritime liens (see Ocean Ship Supply v. Leah 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984)). Many, many American decisions have taken into account the civil/common law distinction, either impliedly or expressly.

It is a basic finding of this lecture that one ignores at one's peril the consequences of America's maritime law being both civilian and common law in its source and modern composition.

III. The Plan and Purpose of this Paper

This paper will first explain how maritime law is a complete legal system, in its two major components: 1) the general maritime law; and 2) national statutes and international conventions, with the latter source predominating over the former. It will then show how the civil law (the basic source of the general maritime law, even in England), together with the common law, both made major contributions to maritime law, and how the general maritime law was received into the United States.

Contemporary American maritime law will then be examined to demonstrate how its civilian heritage continues to be operative in various aspects, including: shipowners' limitation of liability, the attachment, proportionate fault in marine collision, the codification of maritime lien law, the concept of maritime liens as substantive rights, the wrongful death remedy, liens on cargo for demurrage without a contract, equity, marine insurance, general average, salvage and maintenance and cure. The common law influences, notably ship mortgages, collision liens, the action in rem and the "no cure/no pay" rule in salvage, will also be studied.

Finally, the importance of this mixed legal tradition from a practical standpoint will be outlined, with particular reference to the attachment, the recognition of foreign maritime liens, marine insurance, carriage of goods by sea under the Hamburg Rules, the redundancy of general average and salvage law, ancient and modern. A general conclusion will then be drawn.

Certain terms, whose discussion would only delay consideration of the principal subject of this paper (and which I assume in any event are understood and accepted by the reader), are nevertheless defined briefly for clarity in Appendix "A". They are "civil law", "common law", "mixed jurisdiction" and "mixed legal system" (see Appendix "A"). In addition, "some classic differences between the civil law and the common law" are summarized (see Appendix "B").

IV. Maritime Law Is A Complete Legal System

It is essential at the outset to make a basic constatation - that maritime law is a complete legal system, just as the civil law and the common law are complete legal systems. Maritime law incidentally is much older than the common law and probably contemporaneous with the advent of the civil law.

That maritime law is a complete legal system can be readily seen from its component parts. For centuries maritime law has had its own law of contract - of sale (of ships), of service (towage), of lease (chartering), of carriage (carriage of goods by sea), of insurance (marine insurance, being the precursor of insurance ashore), of agency (ship chandlers), of pledge (bottomry and respondentia), of hire (of masters and seamen), of compensation for sickness and personal injury (maintenance and cure) and risk distribution (general average), etc., etc. It is and has been a national and an international law (probably the first private international law). It also has had its own public law and public international law.

Maritime law has and has had, as well, its own courts and procedures from earliest times, so that the Rhodian law of (c. 800 B.C) and the Byzantine Rhodian Law (c. 800 A.D.) both crossed borders and applied in the whole western commercial world. The pied poudre ("piepowder") courts of England tried cases between merchants bringing wine and wares to and from ports of England and of the Atlantic coasts of what is now Spain, France, Belgium and Holland. The Rôles of Oléron, written in Oléron, France (near La Rochelle c. 1190), were the law in those seas, while the Consolato del Mare (c. 1300) was the law of the Mediterranean.

Maritime law with is broad substantive and adjectival scope, its own courts and jurisdiction and its own private and public law, is indeed a complete legal system.

V. The Two-fold Composition of Maritime Law

A second basic constatation of this paper is that maritime law, whether it be national or international, is composed of two constituent parts:

firstly - the general maritime law, that great ius commune, which has evolved from various maritime codes including Rhodian law (c. 800 B.C.), Roman law, the Rôles of Oléron (c. 1190), the Ordonnance de la Marine (1681) etc., all of which were relied on in Doctors' Commons, the English Admiralty Court and the maritime courts of Europe. This lex maritima, part of the lex mercatoria, or "Law Merchant" as it was usually called in England, was the general law (ius commune) applicable in all countries of Western Europe until the fifteenth century, when the gradual emergence of nation states caused national differences to begin creeping into what had been a virtually pan-European maritime law system. That system had the immense advantage of averting conflict of laws problems, because uniform principles and rules were applied to resolve disputes in all countries.

There is also a modern lex maritima. Today's general maritime law consists of the common forms, terms, rules, standards and practices of the maritime shipping industry - standard form bills of lading, charterparties, marine insurance policies and sales contracts are good examples of common forms and the accepted meaning of the terms, as well as the York/Antwerp Rules on general average and the Uniform Customs and Practice for Documentary Credits. Much of this contemporary lex maritima is to be found in the maritime arbitral awards rendered by arbitral tribunals around the world by a host of institutional and ad hoc arbitral bodies. Increasingly, arbitrators are following previous awards in applying the law to new arbitrations, thereby contributing, consciously or unconsciously, to the emergence of a modern maritime ius commune.

secondly - maritime statute law, whether national or international.

Thus maritime law today consists of the ever-evolving general maritime law, on one hand, and national maritime statutes and international maritime conventions, on the other.


VI. Precedence of National Statutes and International Conventions

A third essential, basic constatation concerning maritime law is that in the case of any conflict between the two sources of maritime law, it is national or international law which has precedence over the general maritime law.

The Emperor Antoninus (138-161 A.D.) said it succinctly (as recorded in the Digest of Justinian):

"I, indeed am Lord of the world, but the law is lord of the sea. Let it be judged by Rhodian Law, concerning nautical matters, so far as no one of our laws is opposed." (emphasis added)

Thus Rome received Rhodian maritime law as its own, in so far as it did not contradict Roman law existing or future.


In the United States, the precedence of the statutory over the general maritime was stated by the Supreme Court in Panama Railroad 264 U.S.375 at p. 386, 1924 AMC 551 at p. 555 (1924):

 "...when the Constitution was adopted, the existing   maritime law became known as the law of the United States  'subject to power in Congress to alter, qualify or supplement it as experience or changing conditions might  require.'

See also Detroit Trust Co. v. Barlum S.S. Co. 293 U.S. 21 at p. 43, 1934 AMC 1417 at 1428-29 (1934); Schiffaharts Leonhardt & Co.v. A. Bottacchi 773 F.2d 1528 at pp. 1531-1532, 1986 AMC 1 at pp. 5-6 (11 Cir. 1985 en banc).

In Canada, the precedence of national statutes over the general maritime law can be seen today in sect. 2(1) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads:

"In this Act 'Canadian maritime law' means that law the was administered by the Exchequer Court of Canada on its Admiralty side by virtue of the Admiralty Act... or any other statute, or that would have been so administered if that Court had, on its Admiralty side, unlimited jurisdiction in relation to maritime and admiralty matters, as that law has been altered by this or any Act of the Parliament."

VII. The Civilian Origins of Maritime Law

1) Maritime law as civilian

My fourth basic constatation is that maritime law was civilian in its original source, concept, and style and retains much of that tradition today in both the general maritime law and in national statutes and international conventions.

2) The early maritime codes

The source of the maritime law can be seen in the early maritime codes.

All the ancient sea laws were codes or "coutumes" and were civilian in concept, style and drafting. Examples are - the Rhodian law (circa 800 B.C.); Greek law (4th century B.C.); the maritime provisions in Roman law; (the Digests of Justinian, 6th century A.D.); the Byzantine/Rhodian Sea-Law (8th century A.D.); the Basilica (9th century A.D.), the Italian City Codes of Trani (1063), Amalfi (1150) and Pisa (1160); the Ley Maryne, being the customs of various cities, including Newcastle-upon-Tyne (1100-1135), Ipswich (1201) and certain Scottish cities; the Rôles of Oléron (1190); the Assises of the Bourgeois of the Kingdom of Jerusalem (1200); the Consolato del Mare (end of 13th century); the Laws of Visby (first printed 1505); le Guidon de la Mer (1556); l'Ordonnance de la Marine (1681): the French Code de Commerce (1807). All of these statutes were collected and kept in "The Blacke Booke of The Admiralty" (mid 15th century ) in Doctors' Commons in London and cited in the High Court of Admiralty in London and elsewhere. Collected again by Sir Travers Twiss, they were published in four volumes in the Black Book of the Admiralty from 1871 to 1876.

3) Early civilian concepts in the maritime law

Many modern-day principles are still found today in the general maritime law or in national statutes or international conventions.

For example, Rhodian law, which was probably an unwritten lex maritima, had three of its principles of general average, recorded in the Digest of Justinian (jettison, cutting the mast and cutting the anchor) and this is the authority today for general average, because the terms of general average are not set out in any national statute or international convention. (The York/Antwerp Rules are merely contactual terms of general average, which are applicable only by agreement of the parties, usually in a bill of lading or charterparty.)

Roman law gave us and still gives us, the bottomry bond, the shipbuilding lien, a lien for ship repairs, a lien for supplies for the crew and a freight lien on cargo.

The Rôles of Oléron gave and still gives us, amongst other things, more details on bottomry and more liens, the principles of salvage and the rights between partners in the ownership of a ship (probably the beginnings of company law).

The Admiralty had in particular the civilian saisie conservatoire (the seizure before judgment - the attachment) which was and is unknown in the common law.

Each code, in turn, built on its predecessor and each code itself evolved. For example, the oldest existing copy of the Rôles of Oléron has 24 articles and the most recent about 35 articles. The version published in 30 Fed. Cas. 1171 et seq. has 47 articles. There are 30 known copies of the Rôles extant today - one is in Spain, France (17), Flanders (2), the Netherlands (1) and England (10)). It is the general maritime law as it has evolved over the centuries that we have today.

4) The Admiralty law of England

The Admiralty law of England, it was noted above, was received into the general maritime law of the United States at the time of the American Revolution and was confirmed by the Constitution and a statute of the first Congress in 1789.

But what was that law?

It was the law adjudged in the Admiralty Court, (Doctors' Commons), where only Doctors of Civil Law could plead and take part. Theirs was the law found in the Blacke Booke of Admiralty, as it was ruled on in subsequent recorded judgments and in the occasional laws adopted by Parliament. There is an excellent new text of the Selden Society which has collected and commented on those decisions (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII of the Selden Society, London, 1992).

Thus the general maritime law advanced and evolved in England in the civilian court based on the early civilian admiralty codes.

VIII. The Influence of The Common Law On Maritime Law

Although Doctors' Commons was civilian in origin, structure and style, the common law had very considerable influence on the law of the Admiralty Court. This was because the common law courts, although younger than the commercial, admiralty, probate and church courts, were very jealous of their jurisdiction, and wished to restrict it. The courts of common law fought even with Chancery (the court of equity). In particular, Sir Edward Coke, the Lord Chief Justice of Common Pleas, used his great authority and prestige to limit Admiralty jurisdiction. His principal weapon was the writ of prohibition, which took away considerable jurisdiction from the Admiralty Court. As time passed, the Court even lost the right to issue writs of attachment. Thus much maritime law was practised in the common law courts by common lawyers, particulary in respect of matters arising ashore (and not outside the sight of land), such as marine insurance, stevedoring and chartering.

Other examples of the common law influence are the ship mortgage, the maritime tort lien, the writ in rem and the "no cure/ no pay" principle in salvage (see infra).

IX. The Reception of the General Maritime Law into U.S. Law

1) Introduction

To recapitulate what has been established, or at least argued, above - maritime law is a complete legal system and is composed of the general maritime law, as it has been tempered from time to time by national statutes and international maritime law conventions.

2) Reception of the general maritime law

Still to be considered is how the general maritime law was received into American law.

The colonial Vice-Admiralty and maritime courts established in America brought with them the general maritime of England (see David R. Owen and Michael C. Tolley, Courts of Admiralty in Colonial America: The Maryland Experience, 1634-1776, Carolina Academic Press in association with the Maryland Historical Society, Durham, N. Carolina, 1995; J.C. Sweeney, "The Admiralty Law of Arthur Browne," (1995) 26 JMLC 59; Matthew P. Harrington, "The Legacy of the Vice-Admiralty Courts" (1995) 26 JMLC 581 (Part I) and (1996) 27 JMLC 323 (Part II)). The reception of that law was confirmed in Panama Railroad v. Johnson 264 U.S. 375 at pp. 385-386, 1924 AMC 551 at pp. 554-555 (1924), where the U.S. Supreme Court, referring to the extension of the judicial power of federal courts to "all Cases of admiralty and maritime Jurisdiction" under art. III, sect. 2, clause 1 of the U.S. Constitution, declared:

"As there could be no cases of 'admiralty and maritime jurisdiction,' in the absence of some maritime law under which they could arise, the provision presupposes the existence in the United States of a law of that character. Such a law or system of law existed in colonial times and during the Confederation, and commonly was applied in the adjudication of admiralty and maritime cases. It embodied the principles of the general maritime law, sometimes called the law of the sea, with modifications and supplements adjusting it to conditions and needs on this side of the Atlantic. The framers of the Constitution were familiar with that system and proceeded with it in mind. Their purpose was not to strike down or abrogate the system, but to place the entire subject -- its substantive as well as its procedural features -- under national control, because of its intimate relation to navigation and to interstate and foreign commerce. In pursuance of that purpose the constitutional provision was framed and adopted.... After the Constitution went into effect, the substantive law theretofore in force was not regarded as superseded or as being only the law of the several states, but as having become the law of the United States..." (emphasis added)

It is also noteworthy that although it was English Admiralty law which was received into the United States, the strictures of English Admiralty jurisdiction were soon rejected by U.S. judges, in favour of a wide interpretation of the "admiralty and maritime jurisdiction" conferred by Art. III, cl. 2 of the Constitution.

As early as 1815, Mr. Justice Story, in De Lovio v. Boit 7 Fed. Cas. 418 at p. 442 (No. 3776) (C.C. D. Mass. 1815), rejected the "locality test" which had confined the English Court of Admiralty and proclaimed that U.S. Admiralty jurisdiction comprehended: "...all maritime contracts, torts, and injuries. The latter branch is necessarily bounded by locality; the former extends over all contracts (wheresoever they may be made or executed, or whatsoever may be the form of the stipulations) which relate to the navigation, business or commerce of the sea...." (ibid. at p. 444). It is interesting that Story J., in reaching his historic decision in De Lovio, examined both the jurisdiction of the colonial vice-admiralty courts and of the maritime courts of other countries (notably those of civilian tradition).

In consequence, many contracts of truly maritime nature (e.g. charterparties, as in Morewood v. Enequist 64 U.S. (23 How.) 491 (1860), and marine insurance, as in Insurance Co. v. Dunham 78 U.S. (11 Wall.) 1 (1871)), which had been removed from the High Court of Admiralty in England by writs of prohibition because they occurred on land, were accepted as subject to adjudication in American federal district courts in the exercise of their Admiralty jurisdiction, because of their inherently maritime character. Similarly, America quickly disregarded the historic distinction in English Admiralty tort jurisdiction between events occurring within the ebb and flow of the tide and those transpiring on the High Seas (The Genesee Chief 53 U.S. (12 How.) 443 (1851)).

X. Classic Civil Law Principles Found in American Maritime Law

Many classic principles, rules and concepts derived from the historic lex maritima of Continental Europe, and therefore of essentially civilian character, continue to be fundamental elements of American maritime law. It is instructive to review some of them.

1) Shipowner's limitation of liability and abandonment

The American law of limitation of shipowners' liability of 1851, found in 46 U.S. Code Appx. 183(a), requires the calculation of the limitation to be based upon the value of the ship and pending freight after the casualty concerned (see Norwich & New York Transportation Co. v. Wright 80 U.S. (13 Wall.) 104 (1871)), rather than on the tonnage of the vessel as established before the mishap, which is the normal method of calculation today under the Limitation Conventions of 1957 and 1976, now in force in most other nations, and which was pioneered in England in the nineteenth century (Merchant Shipping Act Amendment Act, 1862, 25 & 26 Vict., c. 63, sect. 54, later consolidated as part of the Merchant Shipping Act, 1894, 57 & 58 Vict., c. 60, sect. 503). The only tonnage limitation known in the U.S. is the limitation of US $420 per ton in the event of personal injury and death claims. This limitation dates from 1935, when it was first established at US $60 per ton, and raised to its present level only in 1984 (46 U.S. Code appx. sect. 183(b)).

The American system of limitation may be traced back to the traditional European abandonment system of shipowners' limitation, found in the Ordonnance de la Marine of 1681 and later in France's Code de Commerce of 1807 (art. 216, now repealed), under which owners could restrict their responsibility for collisions, groundings, and other maritime claims by relinquishing their vessel and its earned freight to the claimants.

Another civilian feature of U.S. limitation law is that only shipowners and demise (bareboat) charterers have the right to limit their liability, whereas the 1957 Limitation Convention extends that right to all charterers, as well as to managers, operators, masters and crew (art. 6(2)), and the 1976 Convention further extends the right to salvors and insurers (art. 1(1), (3)and (6)).

The 1851 Act has resulted in some interesting conflict of laws decisions where the American law has clashed with the more modern tonnage-based limitation systems of the U.K., Canada or other countries (see, for example, The Titanic 233 U.S. 718 (1914); The Norwalk Victory 336 U.S. 386, 1949 AMC 393 (1949); Bethlehem Steel Lim. Procs. 435 F. Supp. 944, 1977 AMC 2203 (N.D. Ohio 1976), aff'd 631 F.2d 441, 1980 AMC 2122 (6 Cir. 1980), cert. denied 450 U.S. 921, 1981 AMC 2099 (1981); The Arctic Explorer 590 F. Supp. 1346, 1984 AMC 2413 (S.D. Tex. 1984)).

2) The attachment

Because the Thirteen Colonies left the British Empire in the period 1776-83, at a time when the Admiralty attachment was still extant (albeit moribund) in England, that pre-judgment procedure did not die out by non-user in the United States as it supposedly did in the U.K.(see W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 975-977, arguing that the Admiralty attachment may, in fact, still exist in England). Today, the maritime attachment is very much alive and well in America. It has been codified in Supplemental Rule B of the Federal Rules of Civil Procedure. Nevertheless, as the Eleventh Circuit en banc stressed in Schiffaharts. Leonhardt v. A. Bottacchi 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985), the attachment, which existed as part of the general maritime law during the colonial period and at the time of the adoption of the U.S. Constitution in 1789, may be invoked and employed apart from, and in addition to, the present-day Rule B process (see ibid., F.2d at p. 1533, AMC at p. 9: "...we find that the court had the authority, under its inherent power to apply traditional maritime law, to issue the writ of attachment; it need not have relied on any grant of authority under Rule B(1)." (emphasis added)

In its decision, the Eleventh Circuit recalled how the U.S. Supreme Court, in Manro v. Almeida 23 U.S. 473 (1825), had
affirmed that the attachment was available in the U.S., largely because of the provisions of the first and second Process Acts, adopted by the first Congress in 1789 and 1792.

The first Process Act (An Act to regulate Processes in the Courts of the United States, Act of Sept. 29, 1789, 1789, Statute 1, c. 21) required by its sect. 2 that: "...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".

The second Process Act (An Act for regulating Processes in the Courts of the United States and providing Compensations for the Officers of the said Courts, and for Jurors and Witnesses, Act of May 8, 1792, Statute 1, c. 36) required at its sect. 2: "That the forms, executions and other processes...shall be the same as are now used in the said courts... in those of equity and in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts of equity and to courts of admiralty respectively as contra-distinguished from courts of common law."

Citing Manro v. Almeida, the Eleventh Circuit held:

"Upon the whole, we are of opinion, that for a maritime trespass, even though it savors of piracy, the person injured may have his action in personam, and compel appearance by the process of attachment on the goods of the trespasser, according to the forms of the civil law, as engrafted upon the admiralty practice. And we think it indispensable to the purposes of justice, and the due exercise of the admiralty jurisdiction, that the remedy should be applied, even in cases where the same goods may have been attachable under the process of foreign attachment issuing from the common-law courts."

(Manro v. Almeida 23 U.S. 473 at pp. 495-496 (1825), cited in Schiffaharts. Leonhardt & Co. v. A. Bottacchi 773 F.2d 1528 at pp. 1532-1533, 1986 AMC 1 at pp. 7-8 (11 Cir. en banc 1985))


3) Proportionate fault

The civil law, since at least the nineteenth century, has applied the principle of division of damages according to the degree of comparative (proportionate) fault in delictual cases where the plaintiff's acts or omissions have partly caused the loss or damage sustained by him (see, for example, the French Civil Code of 1804, arts. 1382 and 1383). The common law, however, for centuries applied the "contributory negligence bar" (inherited from Roman law), which precluded a plaintiff even slightly at fault from recovering from a defendant, even where the latter's degree of blameworthiness was far greater (see Butterfield v. Forrester (1809) 11 East 60, 103 E.R. 926 (K.B.)). In England, the contributory negligence bar was only repealed by statute at the end of World War II, when Parliament enacted the Law Reform (Contributory Negligence) Act, 1945, 8 & 9 Geo. VI, c. 28. In the U.S., contributory negligence as a complete defence was repealed slowly and piecemeal by various state and federal laws.

Maritime law, for its part, attenuated the rigours of the contributory negligence bar by providing a rule of equally divided damages in ship collisions. This rule itself may be traced back to the Laws of Visby, the Consolato del Mare and the Ordonnance de la Marine, and was adopted by the High Court of Admiralty in England at least by 1815 (see Lord Stowell's decision in The Woodrup Sims (1815) 2 Dods. 83, 165 E.R. 1422) and in the United States at least by 1855 (see The Catharine v. Dickinson 58 U.S. (17 How.) 170 (1855)).

Eventually, the Collision Convention 1910, adopted by the largely-civilian countries belonging to the Comité maritime international (CMI), enshrined the civil law rule of proportionate fault in marine collisions in respect of damage to ship, cargo and even with respect to third parties, with equally divided damages recoverable only where the degrees of fault were equal or unascertainable (art. 4). The United Kingdom adopted proportionate fault in its Maritime Conventions Act, 1911, 1 & 2 Geo. V., c. 57, in respect of damages to ship and cargo only, as did other common law countries (e.g. Canada, by its Maritime Conventions Act, 1914, 4-5 Geo. V, c. 13).

The United States, however, which never became party to the Collision Convention 1910, clung to the historic Admiralty rule of divided damages until 1975, when the U.S. Supreme Court, in United States v. Reliable Transfer Co. 421 U.S. 397, 1975 AMC 541 (1975), on grounds of equity and having regard to the desirability of international legal harmonization, finally embraced proportionate fault as the proper apportionment mechanism for "both-to-blame" collisions in respect of damage to ships.

Reliable Transfer, however, did not impose proportionate fault on cargo, so that under U.S. law even today, cargo may recover 100% of its loss from the non-carrying vessel, even if that vessel is at fault to only a partial degree. While out of step with the rest of the world, which generally follows the 1910 Convention in applying proportionate fault to cargo, the American rule, dating back to the U.S. Supreme Court's decision in The Atlas 93 U.S. 302 (1876), is arguably more equitable (and thus more in keeping with the general maritime law tradition), because it permits innocent cargo owners to recoup their losses fully from the colliding vessel. This is an especially valuable right, because in carriage of goods cases subject to the Hague/Visby Rules or to U.S. COGSA 1936, cargo can recover nothing from the carrying ship if the carrier establishes one of the defences of arts. 4(2)(a) to (q).

Also noteworthy is that the United States eliminated the common law contributory negligence bar in maritime torts other than ship collisions as early as 1890 (see The Max Morris 137 U.S. 1 (1890)), replacing it with the then applicable divided damages rule governing collisions. In due course, proportionate fault was introduced by statute in personal injury cases. By comparison, Canada floundered in uncertainty as to whether the bar still obtained in one-ship torts under Canadian maritime law, until the Supreme Court of Canada finally eliminated it in favour of comparative fault in Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3 S.C.R. 1210, but only in 1997!

4) The codification of maritime lien law

The civilian heritage of American maritime law may also be seen in the drafting of U.S. legislation (46 U.S. Code, Chap. 313) governing maritime liens and ship mortgages, now generally known as the "Commercial Instruments and Maritime Liens Act" or the "Maritime Commercial Instruments and Liens Act" (46 U.S. Code 30101, 31301-31309, 31321-31330, 31341-31343, approved November 23, 1988 and in force January 1, 1989, and also sometimes referred to under older names, such as the "Federal Maritime Liens Act" or the "Ship Mortgage Act of 1920 as amended").

Corresponding statutes in other common law countries, such as the United Kingdom and Canada, do not specify what types of maritime claims give rise to maritime liens. They merely list the various maritime claims over which the Admiralty Court has jurisdiction (see Supreme Court Act 1981, U.K. 1981, c. 54, sect. 20(2)(a) to (s) and Federal Court Act, R.S.C. 1985, c. F-7, sect. 22(2)(a) to (s)). Nor do those statutes mention any order of ranking of the various maritime claims falling within Admiralty jurisdiction.

By comparison, the United States statute defines the different types of claims which constitute "necessaries" and "preferred maritime liens" (46 U.S. Code sect. 31301(4) and (5)) and declares expressly that providing "necessaries" to a ship gives rise to a maritime lien enforceable by a civil action in rem (46 U.S. Code sect. 31342(a)). In addition, the ranking of both preferred and contract maritime liens and ship mortgages is provided for at sect. 31326. American therefore has a virtual codification of its maritime lien law (although the statute does not define the term "maritime lien"). This codification closely resembles that of civilian jurisdictions such as France, which, by its Law no. 67-5 of January 3, 1967 (J.O. January 4, 1967, p. 106), also states expressly what claims give rise to maritime privileges (art. 31) and provides an order of ranking (arts. 32, 33, 37 and 38).

5) Maritime liens are rights

It is not surprising that maritime liens, codified in the U.S. legislation as they are in civilian countries such as France, are regarded as substantive rights in American maritime law.

In the United Kingdom and many British Commonwealth countries, a very different understanding prevails. There, the right exists only because the court hasjurisdiction over the claim. This view, reflected in the mode of drafting of the applicable statutes, is very deep-seated, harkening back to the long centuries of conflict between the Admiralty and common law courts in England and the historic common law preoccupation with forms of action. Neither civilian countries nor America experienced those conflicts or that fixation.

In consequence, one does not look to the statute to find what maritime liens are recognized in the U.K. or Canada, as one does in the U.S. Rather, one must look primarily to the case law of the old High Court of Admiralty and its successors to ascertain the six traditional maritime liens recognized in those jurisdictions (seamen's and masters' wages, masters' disbursements, salvage, damage, bottomry and respondentia).

Moreover, the U.S. is very civilian in conferring full maritime lien status on many claims which in British Commonwealth countries are secured by only a statutory right in rem (notably, claims for necessaries, general average contributions, and contract maritime liens for cargo damage and breach of charterparty).

6) Wrongful death

In 1970, the United States Supreme Court recognized the existence in the general maritime law of a remedy for wrongful death in Moragne v. States Marine Lines, Inc. 398 U.S. 375, 1970 AMC 967 (1970). Justice Harlan made the following perceptive comment in rendering judgment:

"Maritime law had always, in this country as in England, been a thing apart from the common law. It was, to a large extent, administered by different courts; it owed a much greater debt to the civil law; and, from its focus on a particular subject matter, it developed general principles unknown to the common law. These principles included a special solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable sea voyages." (398 U.S. at pp. 386-387, 1970 AMC at pp. 976-977.

The United States Supreme Court, in Yamaha Motor Corp., U.S.a. v. Calhoun 116 S.Ct. 619, 1996 AMC 305 (1996), has more recently held that the general maritime law remedy for wrongful death granted by Moragne did not preclude non-seafarers (i.e. persons other than seamen and longshoremen) from recovering damages for wrongful death occurring in state territorial waters under the wrongful death statute of the U.S. state concerned. Such decedents (e.g. recreational boaters and jet-skiers) would also enjoy the general maritime law wrongful death remedy granted to seamen. The ancient right is thus being extended to cover new situations.

7) Liens on cargo for demurrage without contract

Traditional English common law and Admiralty law granted the carrier a possessory lien on cargo for freight (i.e. a right to retain the cargo on which freight was payable at delivery as long as it remained in the carrier's possession, until the freight owing upon it was paid in full). The carrier's lien was limited to freight, however, and did not extend to other claims, such as demurrage, unless the charterparty or bill of lading expressly conferred such a lien on the carrier. (Demurrage is really liquidated damages payable for delay in loading or discharging cargo beyond the "laytime" allowed for these operations under the charterparty.)

Civilian maritime law, on the other hand, did not require the carrier's right of retention of cargo for unpaid demurrage to be expressly granted by contract, but recognized its existence as part of the general maritime law. It was the civilian rule that was accepted in the United States. Lowell D.J. in The Hyperion's Cargo 12 Fed. Cas. 1138 (No. 6987) (D. Mass. 1871), aff'd sub nom. Donaldson v. McDowell 7 Fed. Cas. 887 (No. 3985) (D. Mass. 1873), after reviewing the French commercial code and referring to the writings of civilian authors including Valin and Pardessus, and also taking note of the Rôles of Oléron, concluded:

"My own conviction is that the privilege of the ship-owner in the admiralty is not limited by the master's lien at common law, but depends on the law- merchant, and that by the law-merchant the privilege extends to all charges, damages and expenses arising out of the affreightment." (12 Fed. Cas. at p. 1139).

The general maritime law rule on this matter was codified at sect. 25 of the Pomerene Act of 1916 (formerly 49 U.S. Code sect. 105), recodified in 1994 as the U.S. Bills of Lading Act (49 U.S. Code sect. 80101 et seq.). Sect. 80109 now provides in pertinent part:

"Liens under negotiable bills
"A common carrier issuing a negotiable bill of lading has a lien on the goods covered by the bill for --
(1) charges for storage, transportation, and delivery (including demurrage and terminal charges), and expenses necessary to preserve the goods or incidental to transporting the goods after the date of the bill; ..."

The U.S. carrier is thus protected as regards all costs of the shipment, even if the contract of carriage is silent, although in practice American bills of lading and charterparties usually provide for the carrier's lien to encompass all such expenses.

Also, the carrier in the U.S. may enforce his lien for freight by in rem proceedings, a right not available in British Commonwealth jurisdictions such as the U.K. and Canada, where only the carrier's cargo lien is purely possessory. Again, American maritime law resembles the law of France, where the master (as representative of the carrier) enjoys a privilege on cargo for freight for fifteen days after delivery (Law of June 18, 1966, art. 23), which privilege is enforceable at law (Decree of December 31, 1966, art. 53).

A similar possessory lien for charter hire exists under the general maritime law of the United States, which, in the words of Justice Clifford in The Bird of Paradise: "...arises from the usages of commerce, independently of the agreement of the parties, and not from any statutory regulations." (72 U.S. (6 Wall.) 545 at p. 555 (1866)). No such lien exists without a contractual stipulation in the U.K. or Canada, however, but a corresponding privilege is recognized in France (Law no. 66-420 of June 18, 1966, art. 2), which privilege is also enforceable by civil action (Decree no. 66-1078 of December 31, 1966, art. 3).

8) Equity

One of the clearest traces of the general maritime law in the United States is the use of equity, understood, not as the body of law administered in England by the Court of Chancery, but rather in the civilian sense of a general principle of fairness. As early as 1836, the Circuit Court for the District of Massachusetts declared in Brown v. Lull 4 Fed Cas. 407 at p. 409 (No. 2018): "Courts of admiralty... act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity." The U.S. Supreme Court echoed those sentiments in 1950 in Swift v. Compania Colombiana del Caribe 339 U.S. 684 at pp. 691-692, 1950 AMC 1089 at p. 1095 (1950): "We find no restriction upon admiralty by chancery so unrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issues wholly within admiralty jurisdiction." The Supreme Court reiterated the point affirmatively in 1962 in Vaughan v. Atkinson 369 U.S. 527 at p. 530, 1962 AMC 1131 at p. 1133 (1962), when it held that equity is :"...no stranger in admiralty; admiralty courts are, indeed, authorized to grant equitable relief."

Consistent with these statements, American maritime decisions applying equity can be found in a dazzling array of marine cases. Examples include: 1) the awarding of attorney's fees as a sanction for callousness by an employer in withholding maintenance and cure from a seaman (Vaughan v. Atkinson, ibid.); 2) ordering the payment of wharfage expenses as expenses in custodia legis where such a payment inured to the common benefit of the mass of the creditors (The Poznan 274 U.S. 117 at p. 121, 1927 AMC 723 at pp. 725-726 (1927)); 3) granting an "equitable lien" to a person who had advanced money to repair a ship when he expected to form a company to operate the ship with the owner (The Zizania 1934 AMC 770 at pp. 774-775 (D. Mass. 1934)); 4) permitting the U.S. Government to claim against the judicial sale proceeds of a ship for damage to navigational aids (United States v. Maryland Casualty Co. 235 F.2d 50 at p. 54, 1956 AMC 1822 at p 1826 (5 Cir. 1956); and 5) altering the normal rules of ranking where equitable considerations warrant doing so (see Payne v. S.S. Tropic Breeze 423 F.2d 236 at p. 239, 1970 AMC 1850 at p. 1855 (1 Cir. 1970); Ramsay Scarlett v. Koh Eun 462 F. Supp. 277 at p. 288, 1979 AMC 970 at p. 984 (E.D Va. 1978)).

The use of marshalling in the ranking of maritime claims and the application of the doctrine of laches in respect of maritime liens are further examples of how equity continues to play a significant role in American Admiralty jurisprudence (See W. Tetley, Maritime Liens & Claims, 2 Ed., Blais, Montreal, 1998 at pp. 857-858 (marshalling) and 863-868 (laches); see also ibid. generally at pp. 859-863 (re equity generally in U.S. Admiralty).

9) Marine insurance

Marine insurance is of European Continental origin, having been developed by Lombard merchants in northern Italy in the twelfth century, from which it was imported into England and the cities of the Hanseatic League as early as the mid-thirteenth century (Alex L. Parks, The Law and Practice of Marine Insurance and Average, vol. 1, Cornell Maritime Press, 1987 at pp. 4-8). It usages came to be codified in various ordinances and early codes (see, for example, the Ordinances of Barcelona (1434, 1458, 1461 and 1484); Florence (1523), Burgos (1538), Bilbao (1560), Middleburg (1600), Rotterdam (1604, 1635 and 1655); the Guidon de la Mer (Rouen, 1556-1584), the Us et Coutumes de la Mer by Cleirac (1656) and the Ordonnance de la Marine (1681)).

In England, Lord Mansfield, Chief Justice of King's Bench from 1756 to 1788, that great architect of English commercial law, frequently referred to Continental ordinances and codes to find legal principles applicable to marine insurance. Moreover, the lex mercatoria has been preserved by legislation in the Marine Insurance Act, 1906 (6 Edw. VI, c. 41), the mother of all marine insurance statutes, where sect. 91(2) provides: "The rules of the common law including the law merchant, save in so far as they are inconsistent with the express provisions of the Act, shall continue to apply to contracts of marine insurance." (see also Canada's Marine Insurance Act, S.C. 1993, c. 22, sect. 90, referring to "usages of the trade").

10) General average

General average is perhaps the oldest principle in maritime law, being a lex maritima concept found in the Rhodian Law of c. 800 B.C., of which a few fragments were preserved in Justinian's Digest (Book XIV, Title 2, De Lege Rhodia de Jactu) some 1300 years later; Abbott, C.J. in Simonds v. White 2 B. & C. 805 at p. 811, 107 E.R. 582 at p. 584 (1824) observed: "The principle of general average... is of very ancient date and of universal reception among commercial nations. The obligation to contribute, therefore, depends not so much upon the terms of any particular instrument as upon a general rule of maritime law." It may be found in the old European sea codes, notably in the Rôles of Oléron (art. IX).

In the United States, general average was recognized from the earliest part of the nineteenth century and its origin in the ancient (civilian) law of the sea was acknowledged (Case v. Reilley 5 Fed. Cas. 332 (No. 2538) (Cr. Ct. D. Pa. 1814) (where Valin's commentaries on the Ordonnance de la Marine of 1681 are referred to, together with the writings of Bynkershoek and other continental jurists); Columbian Insurance Co. v. Ashby and Stribling 38 U.S. (13 Peters 331 (1839) (where Justice Story gave considerable attention to the Pandects of Justinian) ; U.S. v. Wilder 28 Fed. Cas. 601 (No. 16, 694) (D. Mass. 1838) Dupont v. Vance 60 U.S. (19 How.) 162 at pp. 169-170 (1856) (where Pothier and Emerigon are relied upon).

Today, general average is usually subject to the York/Antwerp Rules, first adopted as the Glasgow Resolution in 1860, and last amended by the Comité maritime international (CMI) at Sydney, Australia in 1994. The Rules, however, are purely an agreement of merchants (an example of what might be termed a "modern lex mercatoria") which apply solely because they are incorporated by reference in bills of lading and charterparties.

Many today question whether general average should be abolished, in view of the many problems to which its application can give rise, and particularly because it seems increasingly unnecessary and outmoded as marine insurance becomes more extensive. Because general average is so deeply-engrained a part of the maritime law of so many countries, however, one must remember that merely repealing the York/Antwerp Rules will not eliminate general average. That could be done only by way of an international convention and national laws.

American maritime law of general average, because of its civilian heritage, provides cargo with a preferred maritime lien for general average contributions (Commercial Instruments and Maritime Liens Act, 46 U.S. Code sect. 31301(5)(E)). This is similar to French law, which confers a privilege for general average contributions payable by the ship (see French Law no. 67-5 of January 3, 1967, art. 31(4)).

By comparison, the U.K. grants only a possessory lien and a statutory right in rem for such claims under jurisdictional provisions (Supreme Court Act 1981, U.K. 1981, c. 54, sect. 20(2)(q) and 21(4)). Canadian maritime law, for its part, provides a "quasi maritime lien" for general average, inasmuch the claim follows the ship but ranks after, rather than before, ship mortgages (see Federal Court Act, R.S.C. 1985, c. F-7, sect. 22(2)(q) and 43(3); W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 451-452).

11) Salvage

The European maritime law of "assistance" is arguably attributable to the civilian concept of negotiorum gestio, or management of the affairs of another, whereby a party who voluntarily comes to the aid of another, without any contract being concluded between them, is entitled to claim expenses he incurs in rendering the assistance, even if his intervention proves unsuccessful.

The common law, on the contrary, provided no compensation for lending a helping hand. Nevertheless, by virtue the "Good Samaritan doctrine", a volunteer coming to the aid of another was relieved of liability for harm caused through his fault or negligence to the party assisted, as long as the helper did not act recklessly or rashly.

English Admiralty law took a position different from both the civil and the common law in respect of salvage. The Admiralty Court granted salvage remuneration only where the salvor's voluntary efforts to salve the ship and/or cargo in danger were successful. This rule was incorporated into American maritime law from the outset, as is evident from Chief Justice Marshall's 1804 decision in Mason v. The Blaireau 6 U.S. (2 Cranch) 240 at p. 266 (1804). It was also enshrined in the Salvage Convention 1910 (to which the U.S. did become party), which, although it referred to both salvage and assistance (art. 1), in effect plumped for the English rule in providing that no remuneration was due if the services rendered had no "beneficial result" (art. 2).

The 1989 Salvage Convention successfully joins the common law "no cure/no pay" principle with the civilian principle of assistance, in respect of pollution damage. While art. 12(1) and (2) still requires a "useful result" as the basic condition of payment of a salvage reward, art. 14 on "special compensation" permits a salvor to recover 130%, or in some cases even 200%, of his expenses reasonably incurred in salving a vessel which, by itself or its cargo, threatened to damage the environment, even if he fails to salve any part of the ship and cargo. The salvage operations must, however, have "prevented or minimized damage to the environment" (art. 14(2)). The U.K., Canada and the U.S. are now party to the Salvage Convention 1989, so that there is (perhaps) the beginning of a modern ius commune in this area, which, as regards salvage of polluting vessels, combines common law "no cure/no pay" with civilian assistance.

Moreover, virtually all jurisdictions grant a maritime lien for salvage. The lien is also recognized at art. 20 of the 1989 Convention, so that there is now a distinctly international maritime law in this important domain. In the United States, the lien has long been recognized (see, for example, The Sabine 101 U.s. 384 (1879)).

Once again, however, true to its civilian Admiralty heritage, the United States codifies that lien in the Commercial Instruments and Maritime Liens Act (46 U.S. Code sect. 31301(5)(F), conferring "preferred maritime lien" status on claims for salvage, including contract salvage), as does France in its Law no. 67-5 of January 3, 1967, at art. 31(4). The United Kingdom and Commonwealth countries, on the other hand, lacking a codified lien law, must rely on jurisdictional rules (see Supreme Court Act 1981, U.K. 1981, c. 54, sect. 20(2)(j) and 21(3); Federal Court Act, R.S.C. 1985, c. F-7, sect. 22(2)(j) and 43(2)), coupled with judicial precedents, as sources of their salvage lien.

12) Maintenance and cure

Maintenance and cure, being the right of seamen who sustain illness or injury in the service of their ship to be cared for at the expense of the shipowner for a reasonable time until maximum possible cure is effected, is among the oldest principles of the general maritime law. It was introduced into the old European sea codes to encourage seamen to participate in defending the vessel and cargo against piracy (see John W. Sims, "the American Law of Maritime Personal Injury and Death: An Historical Review (1981) 55 Tul. L. Rev. 973; John B. Shields, "Seamen's Rights to Recover Maintenance and Cure Benefits" (1981) 55 Tul. L. Rev. 1046; Rôles of Oléron, arts. VI and VI, as reproduced in 30 Fed. Cas. 1171 at p. 1174; Laws of Visby, arts. XVIII and XIV, reproduced in 30 Fed. Cas. 1189 at p. 1191; Laws of the Hanse Towns (c. 1597), arts. XXXV and XLV, reproduced in 30 Fed. Cas. 1197 at pp. 1199-1200).

The right to maintenance and cure was recognized by the U.S. Supreme Court in The Osceola 189 U.S. 158 (1903) and is considered an implied term of the seaman's employment contract (Evans v. Blidberg Rothchild Co. 382 F.2d 637 at p. 639 (4 Cir. 1967). The right is also secured by the preferred maritime lien for seamen's wages under 46 U.S. Code sect. 31301(5)(D), thus outranking ship mortgages (46 U.S. Code sect. 31326(b)(1)).

Other countries also confer maintenance and cure rights, but frequently these rights are circumscribed by specific statutory rules which have departed from the general maritime law. The U.K's Merchant Shipping Act 1995, U.K. 1995, c. 21, for example, makes no mention of a lien for maintenance and cure. Moreover, as the United States Supreme Court noted in Lauritzen v. Larsen 345 U.S. 571 at p. 575, 1953 AMC 1210 at pp. 1213-1214 (1953), "...while we [the United States] limit this [maintenance and cure] to the period within which maximum possible cure can be effected,... the Danish law, limits it to a fixed period of twelve weeks, and the monetary measurement is different." The Court also noted that disability benefits in Denmark were provided for by statutes comparable to U.S. workmen's compensation legislation, whereas in the U.S. disability compensation, in sums generally exceeding the government benefits available in Denmark, could be recovered by litigation, but only if the claimant could prove fault or negligence on the part of the shipowner (Ibid., U.S. at p. 576, AMC at p. 1214).

XI. Classic Common Law Principles Found in American Maritime Law

Despite the essentially civilian origin of the general maritime law, and therefore of American maritime law, the immensely important contributions of the common law to maritime law cannot be ignored or minimized. The United States has preserved these contributions in its Admiralty law, together with those inherited from the civilian sources, and they are readily apparent.

1) The ship mortgage

Although the general maritime law included bottomry (the pledging of the ship-- literally the vessel's "bottom" -- as security for a loan) and respondentia (pledging the cargo as security for a loan), both bottomry and respondentia became impractical with the advent of steel ships in the nineteenth century and the needs for large amounts of capital to operate merchant vessels and fleets. Improvements in ship-to-shore communication (e.g. wireless and later marine radio technology) and the growth of international banking facilities also made it less necessary for masters to enter into "bottomry bonds" in foreign ports to procure funds needed to purchase supplies or repairs required to complete the voyage. Instead, advances could be obtained more quickly and easily by contacting the shipowner and arranging credit through banks or ships' agents in virtually any part of the world. Moreover, creditors became less and less willing to risk large sums on bottomry, because bottomry claims literally sank with the ship.

The common law filled the gap nicely with the ship mortgage, an adaptation of the common law land mortgage to shipping. The ship mortgage permitted the vessel to become security for a loan without the attendant risk of loss of the security should the vessel perish. England recognized the ship mortgage early in the nineteenth century (The Portsea (1827) 2 Hagg. 84, 166 E.R. 175; The Exmouth (1828) 2 Hagg. 88n, 166 E.R. 176; R. Temperley, The Merchant Shipping Acts, 7 Ed., 1976 at para. 59), and the Admiralty Court acquired concurrent jurisdiction over such mortgages with the common law courts by the Admiralty Court Acts of 1840 (3 & 4 Vict., c. 65, sect. 3) and 1861 (24 & 25 Vict., c. 10, sects. 11 and 35).

The civil law, for its part, could not conceive of the hypothecation of a movable such as a ship (see French Code de Commerce of 1807, art. 190, whereby ships were categorized as movables), because hypothecation was traditionally restricted to immovables (i.e., lands and buildings) . The civil law hypothèque also differed considerably from the common law mortgage, particularly in that it conferred on the hypothecary creditor no immediate right to possession of the property, but only a right against the proceeds of sale of the property after enforcement of the right in judicial proceedings.

The common law mortgage, on the other hand, gives an immediate right of property, if not ownership, to the mortgagee, who can take possession of the property by a simple notice, without the necessity of taking suit, as well as a right of foreclosure at law.

The ship mortgage (or "maritime hypothec") was finally accepted by civilian countries in the latter half of the nineteenth century, when Portugal in 1833, followed by Prussia in 1861, France in 1874 and Spain in 1893, introduced the maritime hypothec into their respective commercial codes (W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at p. 474; see also the modern French maritime hypothec, provided for in Law no. 67-5 of January 3, 1967 at arts. 43-57 and Decree no. 67-967 of October 27, 1967 at arts. 13-25). The ship mortgage and maritime hypothec were both recognized and assigned a definite ranking among maritime claims in the Mortgages and Liens Convention 1926 (arts. 2 and 3), and in the Mortgages and Liens Conventions 1967 and 1993 (arts. 1, 2 and 5).

In the United States, ship mortgages (as in England prior to 1840) were originally held not to fall within Admiralty jurisdiction (Bogart v. The John Jay 58 U.S. (17 How.) 399 (1854)), and the mortgagee's claim ranked after all maritime claims in the distribution of judicial sale proceeds, making the ship mortgage less than viable as a form of maritime security (The Hendrik Hudson 11 Fed. Cas. 1087 (No. 6385) (N.D. N.Y. 1855); The Lottawanna 88 U.S. (21 Wall.) 558 (1874); The J.E. Rumbell 148 U.S. 1 (1893)).

The ship mortgage was, however, transformed by the Ship Mortgage Act of 1920 (Act of June 5, 1920, known as the Merchant Marine Act, c. 250, 41 Stat. 1000, 46 U.S. Code Appx, former chapter 25, former sect. 911-984), which codified the formalities, recognition and ranking of "preferred mortgages" in American maritime law. The Act was extended in 1954 to apply to foreign ship mortgages validly executed and recorded under applicable foreign laws. (Act of June 29, 1954, c. 419, 68 Stat. 323, 46 U.S. Code Appx., former sect. 951, second para.).

Today, preferred ship mortgages, domestic and foreign, are regulated by the Commercial Instruments and Maritime Liens Act of 1988, 46 U.S. Code, especially at sects. 31321-31330). As in other jurisdictions, the ship mortgagee enjoys a relatively high ranking, his "preferred mortgage lien" (codified by 46 U.S. Code sect. 31325) taking priority over all claims against the vessel, except for expenses and fees allowed by the court, court costs and "preferred maritime liens" (46 US. Code sect. 31326(b)(1)).

Modern U.S. ship mortgage law thus helps make America a major centre of international ship finance.

2) The collision lien

A second major contribution of the common law to Admiralty law is the tort lien. A maritime lien was recognized as arising from collision damage done by a ship, at least by the time Sir John Jervis decided The Bold Buccleugh in 1851 ((1851) 7 Moo. P.C. 267, 13 E.R. 884 (P.C.); see also Gorrell Barnes J. in The Ripon City [1897] P. 2226 at p. 242, who referred to a maritime lien arising out of service done to a ship or "injury caused by it"). The Admiralty Court's jurisdiction was extended to damages done by a ship by the Admiralty Court Acts of 1840 (3 & 4 Vict. c. 65, sect. 6) and 1861 24 & 25 Vict., c. 10, sects. 7 and 35). Not only property damage, but bodily injury claims as well were covered by the jurisdiction and the lien (see The Sylph (1867) L.R. 2 A. & E. 24). The lien has proven especially beneficial in the twentieth century in cases of marine pollution (see The Eschersheim [1976] 1 Lloyd's Rep. 81 (C.A.), upheld [1976] 2 Lloyd's Rep. 1 (H.L.)).

Traditional civil law, however, could not accept the concept of a privilege arising out of delict, because civilian privileges were purely contractual in nature (see the Ordonnance de la Marine, 1681 and the Code de Commerce of 1807, neither of which contemplated a delictual privilege). The frequency of marine collisions and allisions, however, made the English tort lien an attractive aspect of the common law, which civilians eventually realized to be a useful addition to their own maritime law, because it gave the injured party a recourse against the ship itself (Rodière, Le navire, Dalloz, Paris, 1980 at para. 146 saw the incorporation of the common law maritime tort lien into the Mortgages and Liens Convention 1926 as a welcome addition). France first enacted a maritime privilege for damage in 1949 (Law no. 49-226 of February 19, 1949, J.O., February 20, 1949 at p. 1890) and has retained that right under its present Law. no. 67-5 of January 3, 1967 at art. 31(5)).

The Maritime Liens and Mortgages Convention 1926 (art. 2(4)) granted maritime liens for both personal injury and material damages done by ships, which liens are also recognized in the 1967 Convention (art. 4(1)(iii) and (iv)) and the 1993 Convention (art. 4(1)(b) and (e)).

The United States had no difficulty with the maritime tort lien, because it fit so neatly into the "personification theory" of maritime liens which has always flourished in America (W. Tetley, Maritime Liens and claims, 2 Ed., 1998 at p. 53 and authorities cited there). As Gray J. held in The John G. Stevens (170 U.S. 113 at p. 120 (1898):

"The foundation of the rule that collision gives to the party injured a jus in re in the offending ship is the principle of the maritime law that the ship, by whomsoever owned or navigated, is considered as herself the wrongdoer, liable for the tort, and subject to a maritime lien for the damages. This principle,...has been more clearly established, and more fully carried out, in this country than in England."

The U.S. early on abandoned the distinction between torts arising on the High Seas and those arising within the ebb and flow of the tide, a "hangover" from the old limitations on English Admiralty jurisdiction (The Genesee Chief 53 U.S. (12 How.) 443 (1851)). Nor did America have difficulty extending the lien to cover oil pollution damage in the twentieth century (State of California v. S.S. Bournemouth 307 F. Supp. 322, 1970 AMC 642 (C.D. Cal. 1969). American judges have also taken an expansive view of the lien, applying it not only to ship damage, personal injury and death claims, damages to port installations and waterways, but also to such claims as conversion and governmental wreck removal and pollution clean-up (see W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 396-398 and decisions cited there). The Commercial Instruments and Maritime Liens Act confers a "preferred maritime lien", outranking even ship mortgages, for all "damage arising out of maritime tort" (46 U.S. Code sect. 31301(5)(B) and 31326(b)(1)).



3) Arrest in rem

The arrest in rem, now codified in the United States in Supplemental Rule C of the Federal Rules of Civil Procedure, is another basic component of American maritime law which traces its lineage back to English maritime law, as influenced by English common law.

The in rem process, as well as the old Admiralty attachment, were both offshoots of a single Continental form of process, the processus contra contumacem, which grew up in medieval Europe and became entrenched in the English High Court of Admiralty by the sixteenth century. The original Continental procedure and its English variant are more fully described in a publication of the Selden Society (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII of the Selden Society, London, 1992, Introduction at pp. xxxviii to xlvii).

The primary purpose of the processus contra contumacem was to counteract the defendant's contumacious refusal to appear before the court and contest the suit brought against him. The person and/or the property of the defendant could be arrested, at the same time as he was cited to appear. If the defendant defaulted to appear after receiving a series of citations, the plaintiff, after the fourth such default, could formulate his claim in the form of a "draft sentence upon first decree". The Admiralty Court, in a first decree (primum decretum) would then award possession of the property arrested to the plaintiff. Any property of the defendant, including, but not limited to, ships and cargoes (and indeed even goods of the defendant in the possession of third parties) could be seized by this process, nor was it necessary for the plaintiff to assert any hypothecation or maritime lien.

The English variant of the procedure, however, did require the plaintiff, in the draft sentence upon first decree, to identify the property of the defendant which had been arrested. Moreover, if the plaintiff's suit was allowed, execution was limited to the property so arrested. These features of the process in England gradually led, in the seventeenth and eighteenth centuries, to the view that the ship itself, as opposed to its owner, was liable for certain debts (e.g. seamen's wages and salvage remuneration). Arrest of the "wrongdoing" res came to be seen as the exclusivemode in which Admiralty jurisdiction could be exercised. As a result, a sharp distinction began to be drawn in England between what came to be called the "action in rem" and the "action in personam" (a distinction, incidentally, which was never made on the Continent).

The Admiralty Court's in personam practice slowly atrophied, beginning after the Restoration in 1660, to the benefit of the courts of common law. The distinction between suing in rem and in personam was supported and promoted largely by common lawyers and judges, who for centuries had been at odds with the civilian advocates and judges sitting at Doctors' Commons. The distinction served as a useful argument favouring further restrictions on Admiralty jurisdiction, restrictions enforceable by the issue of writs of prohibition (see, for example, Johnson v. Shippen (1703) 2 Ld. Raym. 982 (K.B.); Clay v. Snelgrave (1700) 1 Ld Raym. 576 (K.B.); Hale and Fleetwood, supra, at pp. xlvii, note 3 and lxiii-lxiv.)

The action in rem was an integral and distinct part of English Admiralty law by the time of the American Revolution and therefore became an integral part of American maritime law following the Treaty of Paris of 1783 and the adoption of the U.S. Constitution in 1789. Fortunately for America, however, as pointed out above, the attachment, which also sprang from the old processus in contumacem, also became part of the maritime law of the United States, having not yet completely disappeared from the practice of the English Admiralty Court when the new Republic was born.

Thus, as a result of its particular history, American maritime law today can offer maritime creditors two effective procedural remedies for the enforcement of their rights against vessels, while other countries of English legal heritage now (supposedly) have only one: the action in rem.

4) No cure/no pay in salvage

As outlined above, English and American maritime law traditionally granted a reward for salvage only where the salvor's exertions produced some useful result (i.e. where the ship and/or its cargo had been preserved from danger in whole or in part by the salvor's voluntary efforts) (see in the U.S. The Blackwall 77 U.S. (10 Wall.) 1 at p. 12 (1869); W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at p. 348 and other decisions cited there). This requirement for success as a condition of remuneration originated in the common law "no cure/no pay" principle incorporated into English maritime law, and differed from the more liberal Continental rule of assistance, rooted in civilian negotiorum gestio. "No cure/no pay" remains the fundamental rule of salvage under art. 12(1) and (2) of the 1989 Salvage Convention, although art. 14 on "special compensation" for pollution-related expenses partly reintroduces civilian assistance into modern international salvage law.

As the foregoing review shows, a blend of civil and common law rules and principles informs and enriches American maritime law, making it truly a "mixed legal system" of great efficiency and dynamism at the end of the twentieth century.

XII The Importance of Understanding the Civil and Common Law Origins in American Maritime Law

Understanding the origin of the different rights, remedies and procedures underlying contemporary American maritime law is not merely a matter of satisfying an academic interest in legal history. Knowing the origin of these legal concepts is also eminently practical, because comprehension of their mixed civil law/common law pedigree serves to clarify the role which these ideas play in the everyday decision-making of U.S. courts in various fields of modern shipping law. A few examples illustrate the point.

1) Schiffaharts. Leonhardt & Co. v. A. Bottacchi, 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985) - the attachment

The attachment, as explained above, is in essence the saisie conservatoire (conservatory attachment) of civilian jurisdictions, transplanted from England to America before its supposed disappearance from the High Court of Admiralty, and as subsequently adapted to American needs. Maritime attachment is utilized daily in the federal district courts of the United States, in conjunction with actions in personam. It permits the court to order the seizure before judgment in the district of any goods or chattels belonging to a defendant who cannot be found in the district. It provides pre-judgment security for the plaintiff's claim, founds the court's jurisdiction and generally succeeds in securing the appearance of the defendant to respond to the claim asserted against him.

In addition, because the attachment is an adjunct of an action in personam, rather than of an action in rem, the attachment is not limited to ships, cargo or freight, as is arrest in rem under Supplemental Rule C. In consequence, an eventual judgment favouring the plaintiff can be executed not only against the attached property, but also against all other assets of the defendant.

Maritime attachment thus provides one of the great practical advantages of American maritime jurisdiction and law, not generally available in the U.K. or British Commonwealth jurisdictions, where, because of the supposed demise of the Admiralty attachment two hundred years ago, only arrest in rem is possible.

Finally, because the American maritime attachment, as held in Schiffaharts. Leonhardt v. A. Bottacchi, is derived from the general maritime law which existed in colonial America and at time of the drafting of the U.S. Constitution, it is a recourse available to creditors, even apart from its codification under Supplemental Rule B.

2) Ocean Ship Supply v. Leah, 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984) - recognition of foreign liens

Because domestic maritime liens arising under the Commercial Instruments and Maritime Liens Act are codified and understood as substantive rights in the United States, it is scarcely surprising that foreign maritime liens and claims are also properly recognized as substantive rights in American conflict of laws (see, for example, Ocean Ship Supply v. The Leah 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984) and other decisions cited in W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 552-565), even where such liens and claims differ in their character from the rights to which corresponding claims would give rise in American maritime law.

On the contrary, in the United Kingdom and in many Commonwealth countries (e.g. Australia, New Zealand and South Africa) and countries of British legal heritage (e.g. Cyprus), the jurisdictional/procedural view of liens prevails. Because of that procedural theory, foreign maritime liens are not recognized or as ranked as such, unless they are the same as domestic ones (see The Halcyon Isle [1981] A.C. 221, [1980] 2 Lloyd's Rep. 325, 1980 AMC 1221 (P.C.)). In consequence, the true, substantive character of maritime liens (derived from the lex maritima) is violated. Forum shopping is invited. The legitimate expectations of bunker suppliers, repairers and other suppliers of "necessaries", who contract in jurisdictions like France or the U.S. in reliance on their claims being secured by a lien, are dashed. And a fundamental conflict of law principle is breached. (See W. Tetley, International Conflict of Laws, 1994 at pp. 570-573 re The Halcyon Isle).

The United States approach is better suited to the demands of justice in respect of the recognition and enforcement of non-American maritime liens and claims, and it avoids the many pitfalls inherent in the procedural theory of liens.

Canada, virtually alone among British Commonwealth countries, recognizes and enforces foreign maritime liens and ranks them as such, even where the underlying claims do not give rise to maritime liens under Canadian maritime law (see The Ioannis Daskalelis, [1974] S.C.R. 1248, [1974] 1 Lloyd's Rep. 174, 1973 AMC 174 and other Canadian decisions cited by W. Tetley, Maritime Liens and Claims, 2 Ed., 1998 at pp. 565-569). American influence on Canada in this regard has been particularly beneficial and deserves to be acknowledged.

3) American marine insurance law - the absence of a statute

Although the United States has yet to adopt a marine insurance statute, the American Supreme Court has made a conscious effort to keep American marine insurance law in line with the general principles of English marine insurance inherited from the "Law Merchant", as codified in the English Marine Insurance Act, 1906. The ius commune character of that law has thus been safeguarded and international uniformity in this vital area of shipping law has been well served (see Standard Oil Co. of New Jersey v. U.S. 340 U.S. 54 at p. 59, 1951 AMC 1 at p. 5 (1950); Queen Ins. Co v. Globe & Rutgers Fire Ins. Co 263 U.S. 487 at p. 493, 1924 AMC 107 at p. 109 (1924); Calmar S.S. Corp. v. Scott 345 U.S. 427 at p. 443, 1953 AMC 952 at p. 965 (1953); Leslie J. Buglass, Marine Insurance and General Average in the United States, 3 Ed., Cornell Maritime Press, 1991 at p. 4).

4) Understanding the Hamburg Rules as opposed to the Hague and Hague/Visby Rules

In the important field of carriage of goods by sea, the Hamburg Rules are drafted in a very civilian style, whereas the Hague and Hague/Visby Rules reflect a characteristically common law type of draftsmanship.

The difference between civil law and common law legislative drafting styles is really one between concision and precision. A typical example of the concise civilian style of the Hamburg Rules is art. 5(1), which provides:

"5(1) The carrier is liable for loss resulting from loss of or damage to the goods, as well as from delay in delivery, if the occurrence which caused the loss, damage or delay took place while the goods were in his charge as defined in art. 4, unless the carrier proves that he, his servants or agents took all measures that could reasonably be required to avoid the occurrence and its consequences."

By comparison, the Hague and Hague/Visby Rules, at art. 4(2)(a) to (q), list various specific grounds of exoneration of the carrier and the ship from responsibility for cargo loss or damage (error in navigation or management of the ship, fire, perils of the sea, Act of God, Act of war, Act of public enemies, etc., etc.). This kind of enumeration of particular exceptions to a general rule is a hallmark of the precision on which common law legislative drafters pride themselves. Precision prevails at the expense of concision.

In the civil law, however, drafters strive to formulate a simple and comprehensive principle which can be elegantly expressed in the fewest possible general words or phrases. Art. 5(1) of the Hamburg Rules, exculpating the carrier where he has taken "all measures that could reasonably be required to avoid the occurrence and its consequences", is such a general principle, reflecting the civil law tradition of concision in drafting.

Because of the civilian origin of so much of American maritime law, the Hamburg Rules, in their concision and generality, should be more readily understood and applied in the United States than in England or British Commonwealth countries, where jurists are more comfortable with the precision and particularity characteristic of common law legislation.

This matter is far from purely theoretical, however, because the civil law drafting style of the Hamburg Rules is one of the major reasons why many common law States have so far refused to adopt them, fearing to lose the "certainty" supposedly afforded by the precision and detailed enumerations of Hague and Hague/Visby, as interpreted by the courts over the years.

5) Understanding the redundancy of general average

An understanding of the deep roots of general average in the lex maritima also facilitates a correct understanding of the challenge facing those who wish to abolish that institution. Those who regard general average as redundant in the fact of contemporary marine insurance sometimes make the mistake of assuming that general average could be abolished merely by calling an assembly of the Comité maritime international and repealing the York/Antwerp Rules by a majority vote of the CMI delegates present. The mistake is the assumption that the York/Antwerp Rules found or constitute general average itself. In fact, the Rules are but one formulation of general average, voluntarily adhered to by merchants through their incorporation by reference in their bill of lading and charterparty forms.

If general average is to be abolished, an international convention and (at least in jurisdictions such as the U.K. and the U.S.) mandatory national statutes will be necessary, because G.A. is much older than the York/Antwerp Rules and does not depend on those Rules for its legal existence.

6) Understanding salvage old and new

The possibility for the salvor, under art 14 of the Salvage Convention 1989 to recover, as "special compensation" 130%, and sometimes even 200%, of the expenses he reasonably incurs in preventing or minimizing threatened environmental damage, even if neither the ship nor the cargo has been salved, must be understood as a reinsertion into international salvage law of the principle of assistance, originating in negotiorum gestio of the civil law. Assistance will thus coexist with the basic common law "no cure/no pay" rule, in states party to the 1989 Salvage Convention.

XIII. Conclusion

Maritime law as practised in the United States today, in both its general (i.e. judge-made) and statutory dimensions, blends together significant influences of both the civil law and the common law traditions. The result is a fascinating and complete legal system, which, far from being of purely academic interest, also has important practical ramifications for lawyers, judges and merchants involved with contemporary maritime commerce. This lecture has attempted to trace the civil law or common law sources underlying many of the principles, rules and procedures comprising American Admiralty law, as well as to identify some of the practical consequences of the dynamic interplay of the two legal traditions in several specific maritime matters.

The inexorable conclusion is that American maritime law is a mixed legal system which enriches the United States and has much to offer the world.

XIV. Epilogue

If nothing else, I hope I have demonstrated that maritime law, and American maritime law in particular, is a growing, evolving, complete legal system with historic roots in both the civil and common law. I also wish to reiterate that the maritime law programme at Tulane and the rich maritime practice in the Eastern District of Louisiana reflects the best in the development and evolution of that law. Finally, I wish to thank the Tulane Admiralty Law Institute and the Tulane Law School for having so honoured me. I am very, very gratified and indebted.


* * Professor of Maritime Law, McGill University; Distinguished Visiting Professor of Maritime and Commercial Law, Tulane University; counsel to Langlois Kronström Desjardins of Montreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A., B.C.L., in the preparation and correction of the text.

* *** The inaugural lecture of the William Tetley Maritime Law Lectures, delivered at Tulane Law School on January 27, 1999.