The origin of maritime liens : an historical conspectus of medieval law in continental Europe

• Published date: 01 January 2011
• Date: 01 January 2011
• Pages: 94-117
• DOI: 10.10520/EJC74147

94

3 THE ORIGIN OF MARITIME LIENS: AN HISTORICAL

CONSPECTuS OF MEDIEvAL LAW IN CONTINENTAL

EuROPE

3.1 Introduction

Roman law as applied to maritime situations continued in force

in the Mediterranean for centuries up until the compilation of the

Medieval maritime codes.1 After the “fall” of the Western Roman

Empire in 476 AD,2 the Germanic conquerors, inf‌luenced by the

principles of personality in accordance with which each people

should be subject to its own principles of law, provided that Roman

law should continue to be binding on and valid in respect of their

Roman subjects.3 Roman law thus continued to be applied, albeit

in an adapted or vulgarised form, and various compilations were

prepared which made liberal use of existing collections of imperial

law and digests of juristic law.4 In the Vulgar Roman law of the

West, the distinction between real and personal actions and,

consequently, between real rights and personal rights, was to a

great extent lost, and the actio in rem was the term used for claims

for a corporeal thing, whether the claim was founded on a real or a

personal right.5

In the eastern part of the old Roman Empire, Roman law also

continued to be applied.6 After 476 AD, however, Roman law

pertaining to maritime commerce developed separately in the

remnants of the Roman Empire in the East and West.7 Although

Roman law as contained in the compilations of Justinian, translated

1 FR Sanborn, “Comparative Law and the Law of Commerce” (1949-

1950) 16 Brooklyn Law Review 160 at 165.

2 It was not so much a “fall” or sudden demise, but rather a slow and

insensible diminution of the imperial authority of the Western Empire

− see FR Sanborn, “Comparative Law and the Law of Commerce”

(1949-1950) 16 Brooklyn Law Review 21 at 24; GC Lee, Historical

Jurisprudence (The Macmillan Company, New York, 1900) at 360.

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

Australasia Pty Ltd, Sydney, 1962) 5 to 6; T Twiss, “”On the International

jurisdiction of the Admiralty Court in Civil Matters” (1876-1877) 2 Law

Magazine and Review 279 at 283; DH van Zyl, History and Principles

of Roman Private Law (Butterworths, Durban, 1983) at 57.

4 Van Zyl, op cit n 3, at 57. See, in general, E Levy, West Roman

Vulgar Law: The Law of Property (American Philosophical Society,

Philadelphia, 1951).

5 See P van Warmelo, “Real Rights” (1959) Acta Juridica 84 at 87.

6 See, CS Lobingier, “The Continuity of Roman Law in the East” (1929-

1930) 4 Tulane Law Review 341 for a useful summary of Roman law

in the Eastern Empire.

7 J Reddie, An Historical View of the Law of Maritime Commerce

(William Blackwood and Sons, Edinburgh, 1841) 119.

95

into Greek, continued, with little variation, to be the only genuine

and authentic maritime and commercial law of the Eastern Empire,

certain practical maritime customs and usages came into being

which modif‌ied and supplemented that law.8 Medieval maritime

law continued to address the same problems that had confronted a

shipper and carrier of cargo in the ancient world.9

3.2 The Rhodian Sea-Law − “un nom de fantaisie”10

The genesis of these maritime customs and usages is to be found

in the fact that, although in the Middle Ages Roman law underwent

such alterations as were necessary to suit the conditions of

society in each nation, it was still unf‌it to meet the requirements of

commerce and maritime trade.11 These conventions and practices

served as the corrective of the Roman law, and as more and more

weight was given to them, they were reduced to writing in order to

enhance certainty.

The result was the Rhodian Sea-Law that appeared during the

period 700-800 AD.12 The Rhodian Sea-Law was part of ancient

maritime law, and f‌illed the period between the time of the

conclusion of Roman law in the Eastern Empire and the beginning

of Medieval maritime law.13 The imitatively named Rhodian Sea-

Law was a kind of “Hellenised Roman maritime law”, a codif‌ication

of Byzantine Roman law,14 applicable to maritime matters

inf‌luenced by prevailing conventions and practices arising out of

new needs in the f‌ields of shipping and commerce.15 The Rhodian

Sea-Law was in use in the south of Italy for about 600 or 700 years

8 Ibid at 124 to 125; G Mangone, United States Admiralty Law (Kluwer

Law International, Boston, 1997) 6.

9 See Mangone, op cit n 8, at 6.

10 G Ripert, Droit Maritime (Editions Rosseau, Paris, 1930) par 88 stated

that the Rhodian Sea-law may be called “un nom de fantaisie”, because

the “Sea-Law” itself did not originate in Rhodes and had no connection

with it. The Rhodian Sea-Law should be distinguished from the Laws

of the Rhodians of about 900 BC, which was referred to in Justinian’s

Digest and the authenticity of which remains doubtful, as discussed in

paragraph 2.2.

11 See LB Register, “The Dual System of Civil and Commercial Law”

(1912-1913) 61 University of Pennsylvania Law Review 240 at 247.

12 FR Sanborn, Origins of the Early English Maritime and Commercial

Law (Professional Books Limited, Milton Park, reprint 1989) at 35;

W Tetley, Maritime Liens and Claims (Les Editions Yvon Blais Inc,

Montreal, 1998) at 10 to 11.

13 See Tetley, op cit n 12, at 10.

14 See PJ Zepos, “Mixed Jurisdiction in Greece” (1974) 22 The American

Journal of Comparative Law 221 at 224.

15 See Sanborn, op cit n 1, at 165.