The Law of the Sea / A manual of the principles of admiralty law for students, mariners, and ship operators

CHAPTER I MARITIME LAW

1. General Maritime Law.—

Navigation and commerce by sea are regulated by maritime law. This is a branch of jurisprudence which developed out of the necessities of the business with which it has to deal. It is, therefore, as old as navigation itself and many of its rules can be traced back to antiquity. It extends over all navigable waters and is enforced by courts of admiralty.

This law is to be found in the statutory laws of different countries, the decisions of the courts and text-books on the subjects involved. Back of the laws of each particular country is what is termed the general maritime law or common law of the sea, which, like the common law of the land, consists of that general mass of usages and customs which exists by the universal consent and immemorial practice of those doing business by sea. It is effective within particular countries only so far as they consent to follow it, as is the case with international law, of which it is really a part. In general, however, it is recognized and enforced wherever the local laws are silent in regard to maritime transactions.

2. Sources in United States.—

In the United States, the maritime law is to be found in the Statutes or Acts of Congress and decisions of the Federal Courts. These decisions are published in the United States Reports, Federal Cases and Federal Reporter. In addition there are numerous text-books, among which may be mentioned Parsons on Shipping and Admiralty; Benedict's Admiralty; Hughes on Admiralty; Desty on Shipping and Admiralty; Spencer on Collisions and Flanders on Maritime Law. The highest authority is, of course, to be found in the Decisions of the Supreme Court of the United States.

3. Courts.—

The Constitution provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction; this jurisdiction is confided to the District Courts, of which there are several in each state; appeals lie from their decisions to the Circuit Courts of Appeals; there are nine of these, corresponding to the nine judicial circuits into which the nation is divided; the Supreme Court has a general supervisory jurisdiction over all other courts. While parties having maritime controversies may resort to state courts in cases where the common law affords a remedy, the admiralty jurisdiction of the federal courts is so much more effective in all matters pertaining to the ship that they handle practically all the litigation on the subject.

4. Jurisdiction.—

a. The Ship.—

According to the maritime law of the United States the ship is not within the jurisdiction of the admiralty until she is completed; while she is engaged in commerce and navigation, that jurisdiction is exclusive; when she becomes a wreck and passes out of the business for which she was intended, the jurisdiction relaxes and is finally withdrawn. Therefore our admiralty does not take cognizance of matters growing out of the building of the ship nor of the controversies arising after she is broken up.

It sometimes becomes a question of some difficulty whether a particular object is or is not a vessel and subject to admiralty jurisdiction. Rev. Stat., §3, define "vessel" as including "every description of watercraft or other artificial contrivance, used or capable of being used as a means of transportation by water," and in General Cass, 1 Brown Adm. 334, it was said:

The true criterion by which to determine whether any watercraft or vessel is subject to admiralty jurisdiction is the business or employment for which it is intended, or is susceptible of being used, or in which it is actually engaged, rather than size, form, capacity or means of propulsion.

In one or two old cases it was held that a dredge was not a ship but the preponderance of authority is to the effect that a dredge is a ship and within admiralty jurisdiction. The question whether a raft of logs is a vessel has been variously decided. If it be a mere pile or series of floating logs it is probably not a vessel, but rafts made of cross-ties, used as a convenient mode of bringing them to market, manned by crew, who lived thereon during the voyage and propelled by the current and by poles and oars, have been held to be a ship and subject to admiralty jurisdiction.[1] So, also, a floating bathhouse, not permanently moored, but which was towed from place to place has been held to be a vessel; whereas a floating drydock, kept permanently moored, is not a vessel. The question whether barges and floats are subject to admiralty jurisdiction has been the subject of frequent adjudication, and while some old cases held that they were not, the tendency of the modern decisions is to hold that such crafts are vessels. In the Mac, 7 P.D. 126, the question was whether a hopper barge was a ship. It was decided in the affirmative by the English Court of Appeal, Lord Justice Brett saying:

The words "ship" and "boat" are used; but it seems plain to me that the word "ship" is not used in the technical sense as denoting a vessel of a particular rig. In popular language ships are of different kinds; barques, brigs, schooners, sloops, cutters. The word includes anything floating in or upon the water, built in a particular form, and used for a particular purpose. In this case the vessel, if she may be so called, was built for a particular purpose; she was built as a hopper-barge; she has no motive power, no means of progression within herself. Towing alone will not conduct her; she must have a rudder; and, therefore, she must have men on board to steer her. Barges are vessels in a certain sense; and, as the word "ship" is not used in a strictly nautical meaning, but is used in a popular meaning, I think that this hopper-barge is a "ship".... This hopper-barge is used for carrying men and mud; she is used in navigation; for to dredge up and carry away mud and gravel is an act done for the purposes of navigation. Suppose that a saloon-barge, capable of carrying 200 persons, is towed down the river Mersey in order to put passengers on board of vessels lying at its mouth; she would be used for the purposes of navigation, and I think it equally true that the hopper-barge was used in navigation.

b. The Waters.—

The waters included in admiralty jurisdiction are, first, the sea; second, streams in which the tide ebbs and flows; and third, waters which carry substantial water-borne commerce. The fact that a navigable stream may lie entirely within the borders of a single state and thus be unnavigable for interstate commerce, does not exclude the admiralty jurisdiction. Nice questions occasionally come before the courts in determining whether or not a particular body of water is navigable and therefore within the admiralty jurisdiction. There seems to be no precise test, beyond the capacity of the stream to carry substantial commerce.

5. Maritime Contracts and Torts.—

The general subject matter of admiralty jurisdiction is maritime contracts and maritime torts or injuries. A contract is maritime when it relates to the ship as an instrument of commerce and navigation. Thus the hiring of a master, the purchase of supplies, the charter-party or bill-of-lading, an agreement of towage, and the like are maritime contracts. The principle by which to determine whether a contract is maritime in its nature, was laid down by the Supreme Court in the case of the Belfast, 7 Wall. 624. "Contracts, claims, or service, purely maritime and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty courts." And in Insurance Co. v. Dunham, 11 Wall. 1:

As to contracts, it has been equally well settled that the English rule which concedes jurisdiction, with a few exceptions, only to contracts made upon the sea and to be executed thereon (making locality the test) is entirely inadmissible and that the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions.

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Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom.

The test is not altogether definite, nor always easy to apply. As was said in Grant v. Poillon, 20 How. 162: "It may be difficult, if not impracticable, to state with precision the line of this jurisdiction, but we may approximate it by consulting the decisions of our own courts."

A tort is a wrong, independent of contract, that is, it is the breach of a duty which is imposed by law and not by contract. A tort is maritime when it is committed on navigable waters. Injuries to sailors on shipboard, damage to cargo and collision at sea are maritime torts. Illustration of maritime torts and a distinction between land and maritime torts will be found in the chapters on Collisions and Maritime Liens, infra. The case of Hough v. Western Transportation Co., 3 Wall. 20, may be mentioned here. A vessel made fast to a wharf took fire by the negligence of the master and crew. The fire was communicated to the wharf and destroyed it with the buildings adjacent thereto. The court held that although the origin of the wrong was on the water, the substance and consummation of the injury occurred on land and the case was not within admiralty jurisdiction.

Salvage and general average are, strictly, neither contract nor tort, but are within admiralty jurisdiction by virtue of the general law.

6. Personality of Ship.—

In considering the maritime law, it is important to remember that one of its underlying ideas is that the ship has a personality of her own. In the common law, or law of the land, there is a similar notion in regard to corporations; they are legal persons quite apart from the stockholders who compose them. So the ship has a legal individuality quite apart from that of her owners. She may sue in the name of her owner and be sued in her own name. The principle has been expressed by the Supreme Court:

A ship is born when she is launched, and lives so long as her identity is preserved. Prior to her launching she is a mere congeries of wood and iron—an ordinary piece of personal property—as distinctly a land structure as a house, and subject only to mechanics' liens created by a state law and enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and becomes a subject of admiralty jurisdiction. She acquires a personality of her own; becomes competent to contract, and is individually liable for her obligations, upon which she may sue in the name of her owner, and be sued in her own name. Her owner's agents may not be her agents, and her agents may not be her owner's agents. She is capable, too, of committing a tort, and is responsible in damages therefor. She may also become a quasi bankrupt; may be sold for the payment of her debts, and thereby receive a complete discharge from all prior liens, with liberty to begin a new life, contract further obligations, and perhaps be subjected to a second sale. Tucker v. Alexandroff, 183 U.S. 424, 438.

7. Limits of Liability.—

It is important in all dealings with the ship, whether by way of investment of capital, or labor, or by entrusting goods to her for carriage, or by making repairs or furnishing supplies, to remember that the ship may be both the basis and the limit of financial liability, unless her owners in some way add their personal responsibility thereto. It was appreciated at an early day in the history of navigation that capitalists would not invest in ships unless there was some limit to their liability on that account. Ships are wanderers and capitalists can seldom navigate them. No form of investment can produce such large liabilities at any time. The owners can not supervise them in person but must entrust their operations to others beyond their control. Hence, out of the necessities of the situation, the doctrine developed that the ship must be treated as an individual, responsible for her own acts, and that the owner's responsibility was limited to his investment unless he personally went beyond this protection.

8. Equitable Principles.—

The maritime law proceeds on equitable principles and endeavors to accomplish substantial justice between litigants, with brevity, celerity and simplicity. It is impatient at technicalities and cunning bargains. Its jurisdiction is not limited by any financial amount or geographical boundaries, so long as the transaction is maritime in its nature. It is quick to redress unfair dealing or oppression. There is no distinction as to the persons who may invoke its aid. It is a very important part of modern commercial law, as it was originally of the old law merchant, and therefore is very practical and responsive to the demands of business; but it has also had the benefits of the accumulated wisdom of many progressive ages before this one, and is therefore cautious about untried innovations or thoughtless experiments. Its claim to the attention of mankind rests only on the inherent equity and justice of its rules and the celerity with which they may be applied to the solution of disputes, and without these characteristics it would have been long since absorbed into the common law of the land.

9. General Considerations.—

The study of maritime law has the double attraction of historical and practical interest. It deals with the legal affairs of one of the most important phases of modern commercial activity and its problems are solved by precedents from a remote past. It is not a law which is confined within the narrow circle of the present or the limits of particular countries. It is ancient and international. At a time when this country is on the threshold of a revival of its merchant marine, and when there is also a general feeling that it is necessary to proceed to a constructive readjustment and restatement of our entire body of law, the law of the sea, which is really part of the law merchant, must not be neglected. The present is imperfectly understood when the past is forgotten and it is difficult to appreciate any rule without considering its origin. Maritime law is not an exception. Its story presents all the attractions which incline the student to the study of history. It is profitable to follow here, as in politics, the development of ideas and customs, the efforts to accommodate the necessities of commerce by sea to those of the land, the methods of regulating the varied interests on shipboard and those between the shipowner and the ship's company, and the experiments towards ameliorating the age-long friction between the capitalist who supplied the ship and those who labored in her navigation. Through it all appears a constant search for justice, a sincere effort to accomplish what is right and fair for all concerned.

Here one may trace, for example, the rule of general average, the doctrine that what is sacrificed for the common benefit shall be compensated by a common contribution, a rule of such plain and simple equity that the failure of other codes to adopt it is a constant surprise. It appears in a fragment of Greek legislation and forms the text for a chapter in the Digest of Justinian. Its antecedents were probably Phoenician. It survived the Roman Empire in the traditions of seafaring men and reappears in the compilation of sea laws which Coeur-de-Lion revised on his return from the Holy Land, the Rolls or Judgments of OlÉron. The Black Book of the admiralty preserves it in London. It may be traced through the Middle Ages down to the York-Antwerp Rules of 1890 and the practice of adjusters of the present day.

Or one may consider the treatment of employer's liability for injuries received in the course of the employment without his personal fault. Is vicarious liability the true test or the doctrine of fellow service? The merchants of the Mediterranean had the problem in the operations of a very large and extended commerce and the maritime law evolved the doctrine that justice requires that one injured in the service of the ship should be cured at the expense of the ship, and have his wages but no more. The last word on the real equity of this solution of a perplexing economic question remains to be said, perhaps, but the student can trace its development and application through many centuries down to the current decisions of our own Supreme Court.

On no other branch of law have tradition and custom exercised a greater influence. It grew out of the necessities of navigation and commerce by sea and remains substantially uniform in spite of forms of government, racial habits and local innovations. In its essence, it is less susceptible of statutory modification than the common law and careless legislation has had only local effects, diverting business into other channels but ineffective to change the substance of the law. Maritime commerce is naturally free and the wisest commercial governments are those which regulate it least. Its freedom is a direct implication from the doctrine of the natural freedom of the seas. The extent to which governments may profitably regulate it without impairing its usefulness or diverting the current to other shores may be found in the history of this law. Underlying principles are the same whether ships move by sail or steam or electricity or are great or small. There have been large vessels before the twentieth century and an equivalent commerce. The law has remained the same. Men pay damages every day in some of our ports for overlooking rules that were current in Roman times and needless litigation is carried through appellate courts because of professional and judicial failures adequately to investigate the underlying principles of the maritime law.

The opportunities for the student are large and inviting. If this country is to do its part in the commerce of the future, its own maritime laws must be restated and reformed. This means not only the formal statutes and department regulations but also the great mass of judicial opinions of more than a hundred years. All are intertwined with each other and the result is chaotic. The fault has not been in the underlying principles of the maritime law but in legislation and interpretation. Our peculiar system has left the final word in the majority of decisions to judges trained in the common law and not professionally acquainted with any other. The result calls for the treatment which Justinian administered to the incongruous compilations, statutes and reports of his time. The student, either of business, history or law, who will apply himself to an investigation of the law of the sea and ascertain its simple fundamentals will not only have an interesting and profitable occupation but also be in a position to contribute substantially to the public welfare.

REFERENCES FOR GENERAL READING

The American Admiralty, Chapters I-XII, E.C. Benedict. Albany, N.Y., 1910; Banks & Company.=Maritime Law, Chapters I-II, Henry Flanders. Boston, 1852; Little, Brown & Co.

Commentaries on American Law (13th ed.), Lectures XLV-XLIX, James Kent. Boston, 1884.

Marine Insurance, Introduction 1-55, John Duer. New York, 1845; Voorhies.

Introduction historique À l'Étude du droit commercial maritime, Arthur Desjardins. Paris, 1890; A. Durand et Pedone-Lauriel.

Maritime Law, Albert Saunders. London, 1901; Sweet Maxwell, Ltd.

The Rhodian Sea-Law, Walter Ashburner. Oxford, 1909; The Clarendon Press.

History of Admiralty Jurisdiction, R.H. Dana. 5 American Law Review 581.

[1] "The first vessels were rafts. The raft is the parent of the modern ship" (Seabrook v. Raft, 40 Fed. 596).

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