Foreword

• Date: 01 January 2011
• Published date: 01 January 2011
• DOI: 10.10520/EJC74150
• Pages: X-XII
• Author: Martin Davies

x

FOREWORD

by

Martin Davies

Admiralty Institute Professor of Maritime Law, Tulane University

Law School

Director, Tulane Maritime Law Center

Professorial Fellow, Melbourne Law School

Anton Trichardt’s excellent book does much to clarify the law, the

history and the underlying theory of maritime liens. Each of these

is at times obscure and contested. Dr. Trichardt analyzes and

explains the competing views with great success. As if the law,

history and theory of maritime liens were not complex enough a

topic for a book, Dr. Trichardt combines them with an analysis

of conf‌lict of laws, itself a notoriously diff‌icult subject. The great

American conf‌licts scholar William Prosser famously wrote

that: “The realm of the conf‌lict of laws is a dismal swamp, f‌illed

with quaking quagmires, and inhabited by learned but eccentric

professors who theorize about mysterious matters in a strange

and incomprehensible jargon” (Prosser, Interstate Publication, 51

Mich. L. Rev. 959, 971 (1953)). Outrageously unfair though that

statement is, it has always stood as perverse and cynical proof of

how intellectually challenging the conf‌lict of laws can be. Combining

that intellectual challenge with the task of comprehending the

enigmatic nature of the maritime lien is a remarkable feat, but it is

one that Anton Trichardt has carried off with aplomb in this book.

The phrase “maritime lien” was f‌irst used by Justice Joseph Story

in The Brig Nestor, 18 F. Cas. 9 (C.C.D. Maine, 1831) but the idea

of a privileged claim against a ship or cargo has been part of the

maritime law of many countries for many centuries. Dr. Trichardt

describes himself as “fossicking for the origin of the maritime lien

in ancient law” (p. 37), which is a rather self-deprecating way of

describing his searching historical analysis. The author’s quest

takes him through ancient law, Roman law, medieval law in

Europe, the law of seventeenth-century France, early English law

and early American law. Many writers have attempted to identify

what the author calls “an antiquarian source” (p. 26) for the concept

of the maritime lien but Dr. Trichardt demonstrates – convincingly,

in my opinion – that any such attempt is misguided. His treatment

of Roman law is particularly signif‌icant, given how widely held is

the opinion that maritime liens have Roman law roots. The author’s

nuanced conclusion that Roman law merely provided “a paradigm

and ideas” (p. 92) that could be used by later generations,

particularly in England, puts that widely held view f‌irmly in its place.