The origin of maritime liens : an ancient law conspectus
| DOI | 10.10520/EJC74148 |
| Published date | 01 January 2011 |
| Date | 01 January 2011 |
| Pages | 38-93 |
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2 THE ORIGIN OF MARITIME LIENS: AN ANCIENT LAW
CONSPECTuS
2.1 Introduction
It is believed that present day maritime law is the result of a long
process of development that began in antiquity with its roots in the
Rhodian and Roman Law, as continued by the Consulate of the Sea,
the Laws of Oleron, and the Hanse League.1 The origin of maritime
liens, however, is less clear. Attempts have been made to show the
existence of maritime liens in Graeco-Roman antiquity, mainly on
the basis of the use of bottomry loans. Bottomry loans, admittedly
based on scanty evidence, are said to have already existed at
Ugarit, an ancient cosmopolitan city sited on the Mediterranean
coast of northern Syria, and neighbouring states, during the second
half of the second millennium BC.2 In this chapter, I discuss and
analyse the Rhodian Sea-Law, ancient Greek Law, and Roman
Law, fossicking for the origin of the maritime lien in ancient law.
2.2 The Laws of the Rhodians – Resembling the Celebrated
Chapter on “Snakes in Iceland”?3
The Laws of the Rhodians, said to have been promulgated when
the inhabitants of the island Rhodes in the Aegean Sea first
obtained the sovereignty of the seas in about 900 BC, are regarded
in legal literature as the basis of maritime jurisprudence.4 There
1 See 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; MDA Azuni, The Maritime Law of
Europe Vol 1 translated from the French (I Riley & Co, New York,
1806); K Pineus, “Sources of Maritime Law Seen From a Swedish
Point of View” (1955-1956) 30 Tulane Law Review 85; RD Benedict,
“What Do We Know of the Rhodian Maritime Law?” (1896-1897) 3
University Law Review 321, at 321 to 322.
2 JR Ziskind, “Sea Loans at Ugarit” (1974) 94 Journal of the American
Oriental Society 134 and 137. AL Oppenheim, “The Seafaring
Merchants of Ur” (1954) 74 Journal of the American Oriental Society
6 at 8 to 10 refers to a number of contracts from the old Babylonic
period in which the loan specifically became payable when the ship
safely returned. The loan was not, however, secured in any way.
See also, CS Lobingier, “The Natural History of the Private Artificial
Person: A Comparative Study in Corporate Origins” (1938) 13 Tulane
Law Review 41 at 56.
3 See FW Raikes, “The International Law Association Conference,
1899” (1899-1900) 25 Law Magazine and Review: A Quarterly Review
of Jurisprudence (5th Series) 60 at 65.
4 The Laws of the Rhodians of about 900 BC, the authenticity of which
remains doubtful, should be distinguished from the so-called “Rhodian
Sea-Law” (a misnomer) of 700 to 800 AD, which is discussed in
paragraph 3.2 below. See, in general, J Reddie, An Historical View
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is, however, doubt as to the authenticity of the Rhodian maritime
law.5 It has been reported that at an International Law Association
Conference Benedict had read an interesting paper on the Rhodian
law, resembling the celebrated chapter on “Snakes in Iceland”
(there are no snakes in Iceland), that is, it went on to prove that the
Rhodian law was a mere fetish, and never had existence in fact at
any time.6 Benedict stated that “there are no laws of the Rhodians in
existence … we know one sentence, and only one, which was part
of the Rhodian maritime law.”7 But, even if the Rhodian maritime
law did exist,8 and one assumes that certain aspects of the Roman
law may have been influenced by the laws of the Rhodians,9 one
of the Law of Maritime Commerce (William Blackwood and Sons,
Edinburgh, 1841) 63 et seq; W Tetley, Maritime Liens and Claims
(Les Editions Yvon Blais Inc, Montreal, 1998) 7; AR Emmett, “Roman
Traces in Australian Law” (2001) 20 Australian Bar Review 205 at 223;
Azuni, op cit n 1, at 31 et seq; G Mangone, United States Admiralty
Law (Kluwer Law International, Boston, 1997) 3; GW Paulsen, “An
Historical Overview of the Development of Uniformity in International
Maritime Law” (1983) 57 Tulane Law Review 1065 at 1068.
5 See RD Benedict, “The Historical Position of the Rhodian Law”
(1909) 18 Yale Law Journal 223; S Marshall, A Treatise on the Law of
Insurance Vol 1 (J Butterworth, London, 1802) 15. G Gilmore and C
Black, The Law of Admiralty (The Foundation Press, Mineola, 1975) 3
to 5 remarked that “A strong tradition says that a maritime code was
promulgated by the Island of Rhodes, in the Eastern Mediterranean,
at the height of its power; the ridiculously early date of 99 BC has
even been assigned to this suppositious code − a date accepted
uncritically by some legal scholars. But even the existence of such a
code has been pretty well cast in doubt, and we know next to nothing
of its contents, if it existed … There is a compilation, in Greek, of sea
laws, some manuscripts of which refer to it as the ‘Rhodian Sea Law’
but Ashburner, who edited the work, dates it between 600 and 800
AD.” But see, FR Sanborn, “Comparative Law and the Maritime Law”
(1949-1950) 16 Brooklyn Law Review 160 at 161.
6 See Raikes, op cit n 3, at 65.
7 Ibid. See, however, T Twiss, “On the International Jurisdiction of the
Admiralty Court in Civil Matters” (1876-1877) 2 Law Magazine and
Review 279.
8 CS Lobingier, “The Maritime Law of Rome” (1935) 47 Juridical Review
1 at 4 is of the view that the Rhodian Sea Law was not merely a Greek
product but that it was more likely “the repository of rule and practices
which the Phoenicians may have developed, gathered, and diffused,
and to which the Greeks later contributed.”
9 E Margalioth, Maritime Liens: A Study on the Origins and Nature of
Maritime Liens according to English and Israeli (Ottoman-French)
Law (unpublished dissertation for the academic postgraduate diploma
in law, University of London (University College), 1959) 6.
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cannot trace back the origins of either the maritime lien or the
Roman hypothec to the Rhodians.10
2.3 Ancient Greek Law − A Rather Tenuous Connection
Although the maritime law of modern Europe is said to have had
its foundations laid in the jurisprudence of the ancients, there is
no certain evidence that any of the states of Greece formed any
authoritative digest of naval law.11 In this regard, Lord Mackenzie
stated:12 “In various departments of intellectual exertion − in
philosophy, poetry, oratory, and the fine arts − the Greeks have
never been surpassed. But they contributed almost nothing to the
science of jurisprudence.”13 At most, it seems that the Ancient
Greek law recognised the hypothecation of a ship in order to raise
finance, and that the loan was only redeemable on the safe arrival
of the ship at its port of destination. Moreover, as Staniland pointed
out, Ancient Greek law does not appear to foreshadow any other
claim secured by a maritime lien.14
It is doubtful whether maritime liens can be said to have originated
from Ancient Greek law at all, especially because, modern Greek
law regarded the maritime lien as “an institution of awkward nature”,
and that it
“has never been properly understood why a privileged claim
should exist upon a vessel for services rendered to it or injury
caused by it, without actual possession being given of the
10 See W Tetley, “The General Maritime Law − the Lex Maritima” (1994)
20 Syracuse Journal of International Law and Commerce 105 at
109. See, however, J Kent, Commentaries on American Law Vol III
(O Halstead, New York, 1828) at 38 who opined that the contract of
bottomry and respondentia were maritime loans, and that the principle
on which they were founded was borrowed by the Romans from the
laws of the ancient Rhodians, and that had been entrenched in the
general maritime law of Europe, from where it was transplanted to
America.
11 See J Kent, Commentaries on the American Law Part 5 (Little, Brown
and Company, Boston, 1873) at 3.
12 Lord Mackenzie, Studies in Roman Law with Comparative Views of
the Laws of France, England and Scotland (William Blackwood and
Sons, Edinburgh, 1865) 1.
13 Against the background of these words of Lord Mackenzie, and in light
of the fact that almost nothing definite is known about the origin and
early years of Grecian maritime law, any claim that the concept of the
maritime lien originated in Ancient Greek law has to be considered
with caution. See, P Perdicas, “On History and Outlines of Greek
Maritime Law” (1939) 25 Transactions of the Grotius Society 33 at 34;
Marshall, op cit n 5, at 15.
14 See H Staniland, Comparative Analysis of Maritime Liens (unpublished
PhD dissertation, University of Southampton, 1990) at 103.
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