EVOLUTION OF MARITIME LAW
Author: Swarnima Sharma
The word “Maritime” originates from the Latin word “maritimus” which means “of the sea”. The term was coined in the mid-16th century. It is also called Admiralty Law and it has come into existence mainly due to the engagement of trade being carried out through seas, oceans, and other water bodies[1]. It covers the rules and regulations to manage navigation, trade, and movement of commercial as well as other activities that are carried out in the water by way of shipping, submarines, etc. Although the basic meaning of “maritime law” and “law of the sea” is the same, the former term is mostly applicable in cases of private shipping, the latter however is used more in terms of commercial use as well as in the scope of public international law.[2]Individuals working on the sea are also known as seamen. The seamen as well as other maritime workers work in unpredictable and dangerous situations and their category of employment requires special laws and rules to protect them from the nature of their work.
Ancient Roots of Admiralty Law
There are factual instances from ancient times that show the movement of trade through the sea done by Egyptians. Although the laws have not been found in concrete form, one can assume the presence of some basic principles and rules that might have been involved while such trade was ongoing. The oldest known maritime laws were drafted between 900 and 300 BCE. Under the Laws of Oleron (drafted around 1150), the shipowner was held responsible for the living conditions and expenses as well as the medical aid of the seamen[3]. The origin of these laws is either considered to be French or Anglo-Norman. All such expenses that occur during the term of their employment are to be borne by the shipowners themselves. This is known as the “law of maintenance and cure”.
In American law, seamen and other maritime workers are considered as the “wards of admiralty”. This peculiar status has been given to them to protect them from dangerous circumstances. The Admiralty Court in the U.S.A. keeps a close watch on all the contracts that the seamen enter in with their shipmasters. In other words, he is considered as the ward of the admiralty courts.[4]Another doctrine that is called the “Doctrine of Seaworthiness” is also based on traditional laws and it emphasizes the duty on the part of the owner of the vessel/ship to ensure that the same is worthy to be sent out to sea along with seamen.
Development in Admiralty Law
The first Admiralty Court is considered to be established in 1360 in London, which is the same year in which the admiral was granted jurisdiction in all civil and maritime cases. Towards the end of the 16th century, these courts were exercising wider jurisdiction. Their judgments were not only limited to seamen and vessels but had expanded to areas of trade and international commercial law.
The Admiralty was a royal court, and to that end, all its functions and powers flowed directly from the crown itself. The decisions and working of the court were done without the aid of a jury. The laws were inspired by those of different areas, and the customs laws of the sea were applied. This gave rise to a more favorable system of maritime law which was tailored to meet the needs of the people.
Components in Maritime Law
1. Maritime liens
The actions brought in cases related to admiralty law are generally in personam i.e. they are made against a specific person or anything that falls under the definition of a legal person. The proceedings in admiralty law are also sometimes conducted in rem (against ships, cargos, and vessels). This can be observed in American Law wherein the ship or the vessel is itself given an individual identity and is personified, thus being held as liable in several circumstances. An example of this is the “compulsory pilotage” case wherein it was held that:
“The master or owner of a ship navigating in circumstances in which pilotage is compulsory shall be answerable for any loss or damage caused by the ship or by any fault of the navigation of the ship in the same manner as he would if pilotage were not compulsory.”[5]
2. Shipping Charters
The shipping industry remains a popular and ever-expanding area in terms of carriage of goods for trade or other purposes. It has of course lost some of its former glory of being a mode of transportation for passengers as air travel has picked up. But for the purpose of freight and cargo, there is a need for validating the same and this is done through shipping charters. Shipping charters are known as charter parties or bills of lading.[6] Charter parties are divided into three kinds:
i) Demise or bareboat wherein the owner of the vessel hands over the possession of the same to the charterer i.e. the person who has entered into the charter. In this case, the charterer himself is responsible for hiring a crew, a captain, or a master, arrange for food and other supplies and make necessary preparations in case of damages.
ii) A time charter is more common and under this agreement, the shipowner arranges for the crew and the captain or master for the vessel. The charterer acquires the right to decide and provide the direction and movement of the ship for as long as the charter lasts. The charterer is required to pay for the hired vessel at a specified rate.
iii) Voyage charter is used in cases specific to the carriage. These may be signed for one voyage or a series of multiple voyages, all the while the work is done is related to cargo and affreightment. The master has to compulsorily provide the charterer with a bill of lading which shall be treated as a negotiable instrument.
References:
[1]Gilman &Bedigian, LLC, The History of Maritime Law, https://www.gilmanbedigian.com/history-of-maritime-law [2] Nicolas Joseph Healy, Maritime Law, https://www.britannica.com/topic/maritime-law [3]Ibid [4]Norris, M. (1954). The Seaman as Ward of the Admiralty. Michigan Law Review, 52(4), pp. 479-504 [5]Robb, D. (1974). The Compulsory Pilot Defense: A Reexamination of Personification and Agency. The University of Chicago Law Review, 42(1), 199-215. doi:10.2307/1599132 [6]Britannica, Components of Maritime Law, https://www.britannica.com/topic/maritime-law/Components-of-maritime-law