History of Maritime Law in the United States

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

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.

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…”

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)).

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.

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)).

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).”

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))

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!

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”). There is more information on the history of the codification of maritime lien law here.

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. There is more information on this issue related to the U.S. history of the maritime lien law here.

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.

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. For more information on liens on cargo for demurrage without contract, see here.

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).

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”).

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).

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. For more information on the history of savage in the U.S., please see here.

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).

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.

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. For information on the history of the ship mortgage in the U.S., see here.

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.

No cure/no pay in salvage

(…) 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). For more information on the history of savage in the U.S., please see here.

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.

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 favoring 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.

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.

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).

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.

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.

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.

Conclusion

Maritime law, as practiced 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.

By William Tetley, Q.C.