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

DOI10.10520/EJC74145
Date01 January 2011
Published date01 January 2011
Pages164-226
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.
165
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

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