The origin of maritime privileges in France : an historical conspectus

• Date: 01 January 2011
• DOI: 10.10520/EJC74146
• Pages: 118-163
• Published date: 01 January 2011

118

4 THE ORIGIN OF MARITIME PRIvILEGES IN FRANCE:

AN HISTORICAL CONSPECTuS

4.1 Introduction

The development of maritime law in France is important for purposes

of this monograph for a number of reasons.1 First, the maritime

lien was allegedly best encapsulated in the concept of privilege in

early French law. When the maritime lien was recognised in The

Bold Buccleugh,2 it was said that those who practised at the bar of

the Court of Admiralty were familiar with the principle of privileged

debts, and they understood maritime liens to be basically similar in

effect to the French privileges, which were succinctly and lucidly

explained in articles 2093 to 2097 of the Code de Commerce of

1807.3 So, a maritime lien was, in effect, the maritime equivalent

of a civil law privilege. They had the same essential characteristics:

they gave precedence, under certain conditions and in a certain

order, over ordinary claims, including mortgages, and they followed

the vessel into the hands of third parties.4 Indeed, it has been

remarked that:

“Most of the misunderstandings and erroneous theories

relating to maritime liens [had] arisen because the maritime

lien [had] been considered as a common law concept, even

as a remedy, when in reality it [was] a right, a privilege, in the

codif‌ied ‘civilian tradition’.”5

The development of maritime law in France is further important

as the maritime laws of France and England shared a common

1 The discussion in this Chapter is limited to the French law up to 1851

when the maritime lien was conceptualised in The Bold Buccleugh

(1851) 7 Moo PC 267 in England. For a discussion of modern French

maritime law, see W Tetley, Maritime Liens and Claims (Les Editions

Yvon Blais Inc, Montreal, 1998) 25 to 27.

2 (1851) 7 Moo PC 267.

3 See HCC, “On the Peculiarities of Maritime Liens” (1852) 17 The

Law Magazine or Quarterly Review of Jurisprudence (new series)

211 and 213. J Story, Commentaries on the Conf‌lict of Laws Vol 1

(Charles C Little and James Brown, Boston, 1857) at 658 referred to

privileges in the context of French civil law as rights of revendication.

See paragraph 4.4.

4 G Price, The International Unif‌ication of the Law of Maritime Liens

and Mortgages (Sweet & Maxwell, London, 1936) 5; HS Daggett,

“Limitation of Individual Liability” (1940) 4 University of Detroit Law

Journal 195 at 197.

5 See Tetley, op cit n 1, at 7. W Tetley, “The General Maritime Law −

The Lex Maritima” (1994) 20 Syracuse Journal of International Law

and Commerce 107 opined that it was a secured right peculiar to

maritime law and arose historically in the lex maritima, which codif‌ied

portion of the lex mercatoria.

119

source: the written maritime law of both countries started with the

Laws of Oleron.6 Also, the French Marine Ordinance of Louis XIV

of 16817 was the f‌irst major national code to achieve recognition

by the various marine powers of Continental Europe, England and

later America,8 and afforded evidence of the general maritime law of

nations.9 Indeed, it has been stated that all the Medieval codes and

compilations of maritime law were “in a great degree superseded

in public estimation, their authority diminished, and their lustre

eclipsed, by the French ordinance upon commerce in 1673 … and

more specif‌ically by the celebrated marine ordinance of 1681.”10

Later, the French Code de Commerce of 180711 which superseded

the Marine Ordinance and followed its provisions closely, served

as the impetus for the maritime codes in Holland, Belgium12 and

Louisiana.13

6 See Tetley, op cit n 1, at 27.

7 Referred to further as the Marine Ordinance.

8 See WA Butler, “Lectures on Admiralty” (1891-1892) 1 Intercollegiate

Law Journal 49 at 50; WP Gormley, “The Development of the Rhodian-

Roman Maritime Law to 1681, with Special Emphasis on the Problem

of Collision” (1961) 3 Inter-American Law Review 317 at 339 to 340.

9 The Seneca 21 Fed Cas (1829) 1081 at 1084.

10 See J Kent, Commentaries on the American Law Part V (Little, Brown

and Company, Boston, 1873) 16.

11 Referred to further as the Code de Commerce.

12 See FW Raikes, The Maritime Codes of Holland and Belgium

(Eff‌ingham Wilson, London, 1898); FW Raikes, “Foreign Maritime

Laws” (1883-1884) 9 Law Magazine and Law Review (5th series) 174,

and (1884-1885) 10 Law Magazine and Law Review (5th series) 29

and 362.

13 The Louisiana Civil Code of 1808 followed the Code Napoleon closely

and incorporated the provisions of the Code de Commerce relating to

maritime privileges − see TJ Semmes, History of the Laws of Louisiana

and of the Civil Law (Clark & Hofeline, New Orleans, 1873) 9; HP Dart,

The Sources of the Civil Code of Louisiana (JG Hauser, New Orleans,

1911) 57; EF Lens y de Vera, The Privileges in Roman, Spanish, French

and Louisiana Laws (unpublished thesis, Tulane University, 1933) 66

and 109. See, however, the debate on whether the sources of the

Louisiana Civil Code of 1808 were French or Spanish − Prof Batiza,

“The Louisiana Civil Code of 1808: Its Actual Sources and Present

Relevance” (1971) 46 Tulane Law Review 4, “Sources of the Civil Code

of 1808, Facts and Speculation: A Rejoinder” (1972) 46 Tulane Law

Review 628; Prof Pascal, “Sources of the Digest of 1808: A Reply to

Professor Batiza” (1972) 46 Tulane Law Review 603; JM Sweeney,

“Louisiana Civil Code of 1808: Tournament of Scholars over the Sources

of the Civil Code of 1808” (1972) 46 Tulane Law Review 585.

120

4.2 The Marine Ordinance of Louis XIV of August 168114

4.2.1 The Beginning of Modern Maritime Law

Since the Middle Ages up until the time of the French Revolution,

France had been effectively divided into two regions, namely the

country of written law (pays de droit ecrit) where the law was

basically “mediaevalised Roman law”, and the country of customary

law (pays de droit coutumier) where the law was Germanic in

origin.15 The droit ecrit allowed the mortgaging of moveable and

immoveable property in direct conf‌lict with the Germanic rule that

moveables could only be acquired by possession. As a result of

this conf‌lict, the mortgagee in respect of moveables f‌irst lost the

right to follow the property into the hands of a third party (droit de

suite), and in certain of the customs, particularly those of Paris and

Orleans, the right to preference vis-a-vis other creditors (droit de

preference) as well. Consequently, the doctrine that moveables

could not be the subject of mortgage or hypotheque developed.16

For a long period France possessed no particular maritime laws,

except those contained in a compilation of the year 1400, entitled

“le Guidon de la Mer”.17 The position changed when Louis XIV

commissioned a maritime code to unite everything necessary

to instruct mariners in their duties. This included establishing the

police of ports, bays and rivers, determining, at the same time, the

rights, privileges and prerogatives of the admiralty, the order to be

observed in its judicial proceedings, and the function and duties of

judges and off‌icers who were employed to maintain and preserve a

just system in maritime and mercantile affairs.18 This resulted in the

14 The English translation, “The Marine Ordinances of Louis XIV” 30 Fed

Cas 1203 to 1216, is used in this monograph. This translation is a

reprint from 2 Pet Adm, Appendix III.

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

Australasia Pty Ltd, Sydney, 1962) 15 to 17.

16 HS Daggett, J Dainow, PM Herbert and HG McMahon, “A Reappraisal

Appraised: A Brief for the Civil Law of Louisiana” (1937) 12 Tulane

Law Review 12 at 36. See also, David V Adler v J Lawrence Hill and

Whitney National Bank 981 F 2d 1474 (1993) at 1482 to1483.

17 See Tetley, op cit n 1, at 23; MDA Azuni, The Maritime Law of Europe

Vol 1 translated from the French by (I Riley & Co, New York, 1806)

391. GS Potter, “The Sources, Growth and Development of the Law

Maritime” (1902) 11 Yale Law Journal 143 at 150 remarked that the Le

Guidon related mainly to bottomry and insurance.

18 See Azuni, op cit n 17, at 392 to 393. The other Ordinances

promulgated at this time were the Ordonnance civile, touchant la

reformation de la justice of 1667 (later served as the model for the

Code de Procedure Civile of 1806), the Ordonnance Criminelle of

1670 (criminal procedure), the Ordonnance du Commerce of 1673

(commercial law), Ordonnance per tant reglement sur les Eaux et