A Tradition Unbroken

by Nicholas Walsh, PA

This is my last column, folks. I’m going to reprise a column I wrote back in 2012, one which captures the grandeur and tradition of admiralty law, the practice of which has been my bread and butter, and my profession, since 1988.

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John Masefield, of “Sea Fever” fame, also wrote “Cargoes”:
Quinquireme of Nineveh from distant Ophir,
Rowing home to haven in sunny Palestine,
With a cargo of ivory,
And apes and peacocks,
Sandalwood, cedarwood, and sweet white wine.

Stately Spanish galleon coming from the Isthmus,
Dipping through the Tropics by the palm-green shores,
With a cargo of diamonds,
Emeralds, amythysts,
Topazes, and cinnamon, and gold moidores.

Dirty British coaster with a salt-caked smoke stack,
Butting through the Channel in the mad March days,
With a cargo of Tyne coal,
Road-rails, pig-lead,
Firewood, iron-ware, and cheap tin trays.

No doubt if he’d written in 2018 the next verse would have portrayed a 30 knot, 20,000 TEU container ship charging across the Pacific, packed with flat screen televisions.

The poem describes ships spanning three millennia, yet the sea-law applying to each ship would have been familiar to any admiralty lawyer practicing today. As Professor Schoenbaum wrote in his treatise Admiralty and Maritime Law, “There is an unbroken tradition and connection between contemporary maritime law and the customs of earliest antiquity.”

An “unbroken tradition and connection”? Since “earliest antiquity”? Yes. The admiralty law practiced around the world today derives from the earliest law known to civilization, and the connection between the earliest law and the law of today is unbroken. And this makes all the sense in the world: As soon as people built ships to carry cargoes, it became necessary to create law to address the circumstances that occurred to ships then, and these things occur to ships now. That law had to make sense of the customs of the sea, and just as the sea hasn’t changed, neither much has the law.

Examples. Could a Phoenician galley abandon a sick crew member in a port town, creating a humanitarian nuisance? No – the ship had the obligation to pay for the man’s support and medicine, just as the law of “Maintenance and Cure” requires today. What if a shipyard repaired the galley’s bottom and the ship sailed off without paying? Then as now, the yard then had a lien on the ship for the cost of the repair, and in just about any port where it could be found the ship could be arrested and sold to satisfy the lien. Suppose the galley were in a storm, and to save the ship half the cargo had to be jettisoned. The owners of the surviving cargo could be made to contribute to owners of the lost cargo, so the loss was spread to all cargo owners. Today we call that “General Average.”

The roots of modern admiralty law are shrouded in earliest recorded history, preceding the birth of Christ by thousands of years. The Code of Hamurabi, dating to Babylon in 1800 B.C., addressed ship leasing and collisions (“If a merchantman run against a ferryboat, and wreck it . . . the master of the merchantman, which wrecked the ferryboat, must compensate the owner for the boat and all that he ruined”) and even crew wages (“If a man hire a sailor, he shall pay him six gur of corn per year.”) The Code is thought itself to reflect even earlier Sumerian commercial law.

Beginning about 1200 B.C. Babylon declined, Phoenicia in the eastern Mediterranean became ascendant, and Phoenician commercial and admiralty law developed, based on the laws of Babylon. By about 800 B.C., Greece had become a center of commerce and something new appeared: courts dedicated to international maritime law, located in the trading cities, including the island of Rhodes and the city of Alexandria, in Egypt.

The Romans, in turn, elaborated on the existing law and created a written body of legal precedent, the Digest of Justinian. About 700 A.D. Roman law became Rhodian Law, including the famous Rhodian Sea Code. The Code was yet more elaborate, touching now on insurance, partnerships, general average and other modern topics.

Marine commerce survived the dark 8th and 9th centuries, after which the Italian city-states ruled the waves and wrote the law. These trading centers drew extensively upon the Rhodian Sea Code, and their laws and court decisions were published and became, in due course, the earliest precedent for the maritime courts of England, northern France and the Low Countries. By the 16th century the commercial action was shifting to the north, and the law developed in the Mediterranean shifted too. The trading cities of the Baltic and North Seas known as the Hanseatic League developed a body of admiralty law drawing directly from Roman and Italian law. The League developed the Rolls of Oleron, a compilation of laws which became the earliest specifically cited source of English admiralty law.

As England developed maritime commerce, the crown established dedicated Admiralty courts with, in time, broad jurisdiction to handle all manner of maritime disputes. Although eventually the jurisdiction of these courts merged with courts of general jurisdiction, Admiralty courts still retain their own identity under Britain’s High Court – something we don’t have.

The English system crossed the Atlantic to the colonies, and by 1700 each colony had a court of admiralty. After 1776 the United States briefly operated under the Articles of Confederation (ratified 1781), with each state very much sovereign, and the states developed local courts to handle all causes including maritime. But with the adoption of the United States Constitution in 1787 all that changed. The founders recognized the importance of a regulated system of admiralty law and hence enacted Article III, section 2, extending federal jurisdiction “to all Cases of admiralty and maritime Jurisdiction”. Unlike the British we don’t have separate admiralty courts; our federal district courts handle admiralty cases. But the decisions of the United States courts draw heavily on British admiralty law, and those courts draw on the Rolls of Oleron, just as the Rolls of Oleron drew on Mediterranean sea law, in a line extending unbroken to the Code of Hamurabi and beyond, to earliest history. Admiralty law is indeed an uninterrupted tradition, unique in the world, informed by an unchanging sea.

(My thanks to Professor Schoenbaum, for his excellent history of admiralty law contained in Admiralty and Maritime Law (West Publishing 2001).)

It has been a great satisfaction to write this column for the past six years. I’ve tried, and I think to some extent succeeded, in capturing the essence of some fairly subtle legal matters in plain, understandable English. I hope you’ve enjoyed them.

Now I’m going sailing. Stay out of trouble.

Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.