The early English Admiralty Court and the conceptualisation of the maritime lien : an historical conspectus

• DOI: 10.10520/EJC74145
• Date: 01 January 2011
• Published date: 01 January 2011
• Pages: 164-226

164

5 THE EARLy ENGLISH ADMIRALTy COuRT AND THE

CONCEPTuALISATION OF THE MARITIME LIEN: AN

HISTORICAL CONSPECTuS

5.1 Introduction

It is not necessary for purposes of this monograph to delve into

the origins of English admiralty jurisdiction and maritime law.

The history of English admiralty law and the Admiralty Court is,

however, brief‌ly recounted as a backdrop to the investigation into

the conceptualisation of the maritime lien. It appears that in England

there was little interest in the sea before the 16th century.1 Suff‌ice

it to say that at the end of the 11th century, there was not much

to distinguish the maritime law of England from that of northern

France or Germany.2 The body of law received into the English

courts dispensing maritime justice was, in most respects, foreign to

English law.3 Medieval maritime law was in essence embodied in

the Laws of Oleron4 and supplanted the existing codes used in the

various local maritime courts which sat in port towns in England,5

especially after those local maritime courts were annexed to the

1 See, J Mathiasen, “Some Problems of Admiralty Jurisdiction in the

17th Century” (1958) 2 American Journal of Legal History 215. The

English interest in the seas coincided with the English merchants

beginning to partake in international trade − see PE Nygh, “The

Territorial Origin of English Private International Law” (1964-1967) 2

University of Tasmania Law Review 28 at 31.

2 KW Ryan, An Introduction to the Civil Law (The Law Book Co of

Australasia Pty Ltd, Sydney, 1962) 22. As TE Scrutton, The Inf‌luence of

the Roman Law on the Law of England (University Press, Cambridge,

1885) 173 remarked, the foundations of English admiralty law were

(1) the Civil Law as embodied in the law merchant, especially the

Laws of Oleron as introduced by subsequent clerical judges, mainly

in procedure, and (2) the subsequent written and customary rules

adopted in view of the developments of commerce.

3 CS Cumming, “The English High Court of Admiralty” (1993) 17 Tulane

Maritime Law Journal 209 at 210.

4 The Laws of Oleron were inserted in Part C of the Black Book of

Admiralty − see TL Mears, “The History of the Admiralty Jurisdiction”

in Association of American Law Schools, Select Essays in Anglo-

American Legal History Vol 2 (Verlag Sauer & Auvermann KG,

Frankfurt, 1968) 326.

5 TJ Runyan, “The Rolls of Oleron and the Admiralty Court in Fourteenth

Century England” (1975) 19 American Journal of Legal History 95 at 96;

WS Holdsworth, A History of English Law Vol I (Methuen & Co, London,

1966) at 530; EC Benedict, The American Admiralty: Its Jurisdiction

and Practice with Practical Forms and Directions (Banks & Company,

Albany, 1910) 29; FD Blackley, “The English Law Merchant” (1955-1961)

1 Alberta Law Review 263 at 265; C Sherman, “The Romanization of

English Law” (1914) 23 Yale Law Journal 318 at 323.

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off‌ice of the Lord High Admiral. By 1391, the English Parliament

def‌ined the admiralty jurisdiction as encompassing “a thing done

upon the sea”.6

5.2 The Laws of Oleron and the Medieval English Admiralty

Court

That “celebrated code of maritime laws”, commonly called the Laws

of Oleron,7 were the f‌irst maritime laws known in England.8 The

earliest extant code of 24 original articles of the Laws of Oleron9

was copied into the Black Book of English admiralty during the 14th

and 15th centuries,10 and the maritime courts in London, Bristol

and elsewhere in England applied the law as set out in the Laws of

Oleron.11 Even at the start of the 19th century, it was said that the

Laws of Oleron were in the hands of every lawyer.12 Indeed, it has

been said that the adoption of the Laws of Oleron by the English

prompted the growth of the off‌ice of the Admiral13 and the admiralty

court.14

6 RC Bensing and HE Friedman, “The Law of Admiralty − A Primer”

(1959) 11 Western Reserve Law Review 22. See, 13 Rich II c 5 (1389)

and 15 Rich II c 3 (1391).

7 De Lovio v Boit 7 F Cas 418 (1815) at 419. For a discussion of the Laws

of Oleron, see A Luders, Tracts on Various Subjects in the Law and

History of England - The Second Part (J Butterworth, London, 1810)

431 et seq; H Staniland, A Comparative Analysis of Maritime Liens

(unpublished PhD dissertation, University of Southampton, 1990) 116

to 118, J Reddie, An Historical View of the Law of Maritime Commerce

(William Blackwood and Sons, Edinburgh, 1841) 207 to 221.

8 TM Etting, The Admiralty Jurisdiction in America (Rees Welsh & Co,

Philadelphia, 1879) 15.

9 As the law developed, the articles of the Laws of Oleron were

supplemented so that some collections in the 19th century contained

56 articles - GJ Mangone, United States Admiralty Law (Klower Law

International, Boston, 1997) 8.

10 GJ Thompson, “The Development of the Anglo-American Judicial

System” (1931-32) 17 Cornell Law Quarterly 395 at 412.

11 Mangone, op cit n 9, at 7 to 8. The Laws of Oleron was also

incorporated into the Little Red Book of Bristol − see Anonymous, The

Law Merchant” (1921-1922) 2 Law Coach 2.

12 ES Roscoe, The Growth of English Law (Stevens and Sons Ltd,

London, 1911) 117. By the start of the 20th century, however, the

situation had changed and the Laws of Oleron were no longer used or

referred to by practitioners.

13 The off‌ice of the Admiral was a creation of the 13th century but only

expressed itself during the 14th century. It has been described by FL

Cheyette, “The Sovereign and the Pirates, 1322” (1970) 45 Speculum

50, as “the rarest bird in the medieval bestiary; one that was created

in theory before it was instituted in practice.”

14 Runyan, op cit n 5, at 103.

166

Although maritime law in England initially lagged behind the

developments in maritime law in continental Europe,15 it participated

fully in the Medieval development in maritime and commercial law.16

In England, however, admiralty law developed along different lines

than in continental Europe.17 The Laws of Oleron were regarded as

guiding and of substantial persuasion, but they never became the

most important legal source of English admiralty law,18 or of itself

any part of the admiralty law of England.19 Far greater importance

was attached to the judgments pronounced by the law courts which

were increasingly founded on domestic law, the English common

law.20 English maritime law, in particular in relation to maritime

liens, was mainly developed from court decisions. It is therefore

necessary to look at the jurisdiction and functioning of the Admiralty

Court in the context of the English court structure, especially

from the 17th until the mid-19th century when the jurisdiction of the

Admiralty Court was extended by statute.21

5.3 Maritime Law and the Local Seaport Courts

The f‌irst English courts of the sea were the primitive popular courts

of the seaport towns, which were strikingly similar to the piepoudre

courts22 (merchant courts) of the fairs in continental Europe during

15 FR Sanborn, “Comparative Law and the Law of Commerce” (1949-50)

16 Brooklyn Law Review 21 at 30.

16 G Gilmore and CL Black, The Law of Admiralty (The Foundation Press

Inc, Mineola, 1975) 8. See, in general, J Chitty, Lex Mercatoria: or

A Complete Code of Commercial Law Vol 1 (FC and J Rivington,

London, 1813).

17 K Pineus, “Sources of Maritime Law Seen From a Swedish Point of

View” (1955) 30 Tulane Law Review 85 at 89 to 90.

18 JW Stinson, “Admiralty and Maritime Jurisdiction of the Courts of

Great Britain, France, and the United States” (1921-1922) 16 Illinois

Law Review 1 at 8.

19 The Gas Float Whitton No 2 [1896] P 42 at 47. Similarly neither the

Laws of the Rhodians nor of Wisby nor of the Hanse Towns are of

themselves part of English admiralty law.

20 In The Gaetano and Maria (1882) 7 P 137 at 143 it is stated that

English admiralty law is “the law which the English Court of Admiralty

either by Act of parliament or by reiterated decisions and traditions

and principles has adopted as the English maritime law.” See also

Pineus, op cit n 17, at 90.

21 Mathiasen, op cit n 1, at 215.

22 The name piepoudre was frequently given to those courts which

were attached to fairs to determine the complaints of persons passing

through who could not stay there, the so-called pepoudrous, that is,

those merchants who attended the fairs whose feet were dirty from

the dust − see AT Carter, “The Early History of the Law Merchant

in England” (1901) 17 Law Quarterly Review 232 at 236; CA Bane,

“From Holt and Mansf‌ield to Story to Llewellyn and Mentschikoff: The