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 ADMIRALTY LAW INSTITUTE
SYMPOSIUM ON
AMERICAN AND INTERNATIONAL MARITIME
LAW: COMPARATIVE ASPECTS OF CURRENT
IMPORTANCE

AN HISTORICAL OVERVIEW OF THE

DEVELOPMENT OF UNIFORMITY IN
INTERNATIONAL MARITIME LAW

GORDON W. PAULSEN*

INTRODUCTION

In recent years there have been many efforts at obtaining

uniformity of laws in various jurisdictions: the various restate-
ments of law, international conventions, and, where all else fails,
bilateral treaties on specific aspects of law such as recognition of
judgments. It has long been this writer's theory that such at-
tempts at uniformity became necessary because the rise of na-
tionalism over the centuries destroyed the uniformity of mari-
time law, which had been established by commercial traders
from time immemorial. This paper presents the historical thesis
that uniform maritime law:
1. existed in ancient times;
2. developed and grew with the spread of maritime
commerce;
3. declined with the growth of nationalism;
4. was revived in the nineteenth century at the instigation
of lawyers and commercial men such as those who founded the
Comit6 Maritime International and the national maritime law
associations;

* LL.B. 1949, Columbia University; Partner, Haight, Gardner, Poor & Havens;
Member of the New York Bar; President, The Maritime Law Association of the United
States; Member, American College of Trial Lawyers. The author gratefully acknowledges
the assistance of Stephen H. Plum and Stephen R. Reynolds.

1065
106 TULANE LAW REVIEW [Vol. 57

5. continues to grow under the aegis of the Intergovern-

mental Maritime Organization (IMO) and other United Nations
affiliated organizations with the cooperation of experts in the
private sector.
However, it has become strikingly apparent that this
healthy trend toward uniformity will cease if the development of
international maritime law is left entirely in government hands,
and if the United States continues to resist joining the family of
nations in adopting international maritime laws. While some ob-
servers fear that leaving the development of international mari-
time law in the hands of the private sector could result in a
"public be damned" approach, others contend that leaving it en-
tirely in the hands of the governments would be disastrous to
maritime commerce. Thus, there is general agreement that the
best approach calls for a balanced cooperation between govern-
ments and the private sector. History, as this paper demon-
strates, confirms this conclusion.
Perhaps the best explanation of the need for uniformity is
found in the preface by Dr. Giorgio Berlingieri to Dr. Plinio
Manca's excellent treatise on International Maritime Law:
It is now recognized that the International Unification is a
natural requirement of the maritime law since [maritime com-
merce] gives rise quite often to complex business between citi-
zens of different countries with consequent conflicts between
the respective domestic laws which could not be solved by
adopting common principles of private international laws.'
An historical analysis of uniformity in maritime law at once
establishes that maritime law relates to land at least as much as
it relates to water; after all, every sea voyage starts, and expects
to terminate, at a port. Maritime law has always recognized that
the sea and ships, though casting a spell on many hearts, are
only means to an end-a method of quick (sometimes), efficient,
and relatively inexpensive transportation of goods and passen-
gers for reward. Though maritime law relates to rights and lia-
bilities arising out of incidents upon the waters, it only comes to
life after the ship "lands"--or fails to land-safely.
This distinction paves the way for an understanding of why

1. Berlingieri, Preface to 1 P. Manca, International Maritime Law, European

Transport Law, at 8 (1970).
1983] HISTORICAL OVERVIEW 1067

maritime law pioneered the development of uniform laws among

seaports-"city states" in most instances, as distinguished from
nations as we now know them. The pioneers of travel and com-
merce by sea found it necessary to develop various types of
codes, laws, and regulations to facilitate trading. A ship master
needed to know what procedures and standards were expected
of him in whatever port he might be obliged to enter. Thus the
purpose of these codes was to give all who engaged in maritime
trade a uniform understanding of their rights and obligations,
thereby minimizing surprises and supporting rather than re-
stricting trade. Because of the disputes which invariably arise in
trade, systems were developed very early in the history of mari-
time commerce to resolve them and to further interport ship-
ping. A port which had an understandable, urbane, and civilized
method of resolving such disputes in a way comprehensible to
"outlanders" would be attractive to international trade and to
merchants from other ports.

Shipping and interport trade were centered not around

ships per se, but around the transportation and delivery of com-
modities. Disputes had to be resolved as fairly and quickly as
possible "in the course of business" in order for this overall pur-
pose not to suffer. While the traders, vessel owners, and naviga-
tors brought with them different languages, laws, and customs,
they nevertheless lived and worked together within the wide
world of trade and commerce. The wideness of sea trade fostered
certain rules and a degree of uniformity in maritime law which
only later, as a result of the passage of time and the advent of
nationalism, was to be abandoned. According to one historian,
the great value of the rules which had been developed for mari-
time trade lay in the fact that they had been "found by practice
to be suitable to the needs of a community which knows no na-
tional boundaries-the international community of seafarers." 2

This uniform regulation of commerce and trade was recog-

nized as a benefit and service to the nations involved; a fresh
source of wealth was generated by interport trade. Not surpris-
ingly, this wealth invariably led to government involvement as
certain nations saw opportunities for increasing their gains. Also,
because traders were by the nature of their work explorers, the

2. C. Colombos, The International Law of the Sea § 33, at 29 (5th ed. 1962).
1068 TULANE LAW REVIEW [Vol. 57
resources of the foreign lands with which they traded were
looked upon by their nation's rulers with covetous eyes. Interna-
tional commerce thus became a tool of international politics.

THE EARLY YEARS

Rhodian Sea Laws

The earliest known maritime laws were obviously uniform,
there being no other rules or laws with which to be in conflict. It
is generally accepted that the earliest laws of maritime jurisdic-
tion were the Rhodian Sea Laws,s which have been claimed to
date from 900 B.C.,4 but which more likely appeared in the form
recognized today during the period from 500 to 300 B.C.' These
laws were recognized in the Mediterranean world as a method of
providing predictable treatment of merchants and their vessels.
It will be seen that the complexity and attention to detail found
in the Rhodian Sea Laws demonstrated the sophistication of
commerce and trade of Ancient Greece-a world of commerce,
the center of which, Rhodes, was in a position to dictate terms
for trade. (See Exhibit 1.)
Part I of the Rhodian Sea Laws, a prologue, provides sup-
port for a uniform Sea-Law on the basis of declarations of vari-
ous emperors." Part II concerns such matters as the apportion-
ment of voyage profits among ship crew members, on-board
vessel regulations, limitation of the captain's liability for loss of
passengers' valuables, general average procedure, and maritime
loans. 7 Part III is an extensive section which deals with such di-
verse topics as the responsibility for thefts of cargo, liability for
seamen's personal injuries, responsibility for injury to ship or
cargo, the consequences of abandonment of a vessel by a captain
and crew, and the chartering of vessels by merchants.' In the

3. See 1 E. Jhirad & A. Sann, Benedict on Admiralty § 2 (1981) [hereinafter cited

as Benedict]; G. Gilmore & C. Black, The Law of Admiralty § 1.2 (2d ed. 1975); N. Healy
& D. Sharpe, Admiralty: Cases and Materials 3 (1974); G. Malynes, Lex Marcantea
(1685); G. Radcliffe & G. Cross, The English Legal System (6th ed. 1977). The authorita-
tive English work on the Rhodian Sea Law is W. Ashburner, The Rhodian Sea-Law
(1909).
4. E.g., Robertson v. Baldwin, 165 U.S. 275, 283 (1897).
5. N. Healy & D. Sharpe, supra note 3, at 3.
6. W. Ashburner, supra note 3, at xiii.
7. Id. at xiii-xiv.
8. Id. at xiv-xv.
1983] HISTORICAL OVER VIEW 1069

remaining chapters of the Sea Laws, provisions for liability for

collision and salvage are set forth.9
Although the decline of Greece and the rise of the Roman
Empire did alter the influence of the Rhodian Sea Law, a uni-
form code based on the Rhodian Law remained and was recog-
nized as essential to peaceful and profitable Mediterranean
trade: "'The Mediterranean Sea was for above one thousand
years [300 B.C. to 1200 A.D.] only ruled by [Greek] law, called
the Rhodian Law, although augmented with [s]ome additions by
the Romans."' 10 Thus, the Digest of Justinian, dated 533 A.D.,
states the following regarding any controversy arising in the
Mediterranean sea: "This matter must be decided by the mari-
time law of the Rhodians, provided that no law of ours is op-
posed to it.""1
Nevertheless, as the Roman Empire spread and ports were
established along trading routes, different rules for each port
were formulated which allowed for local custom, and which took
into account the distance from Rome, the nature of trade, and
the volume of traffic. This tendency toward divergence became
more evident as these ports became more prominent. The Ro-
man Empire accepted noncomformity to such an extent that, by
1270, Marseilles, Genoa, Peloponnesus, Venice, Constantine, and
Arragon each had local variations engrafted upon the basic Rho-
dian Sea Law. 2 The Basilika was a seventh century regulatory
code established and enforced by the Emperor of Byzantia. The
Assizes of Jerusalem were established as a result of the Crusades
in the ports of Marseilles, Genoa, and Venice in order to avoid
maritime issues being settled by the customary means of trial by
battle. These "independent" maritime codes were attempts by
political or administrative forces to obtain monetary and politi-
cal benefits for themselves from trading profits.

The Rules of Oleron

The Crusades stimulated trade from Northern Europe to
the Mediterranean, bringing about a new recognition of the
Mediterranean's wealth and giving birth to a maritime code

9. Id. at xv.
10. G. Malynes, supra note 3, ch. 17 (pages unnumbered).
11. Dig. Just. 14.2.9 (C. Monro trans. 1909).
12. G. Malynes, supra note 3.
1070 TULANE LAW REVIEW [Vol. 57
which was to be followed for many centuries. The Rules of
Oleron-subsidiary to the Mediterranean standards set forth in
the Rhodian Sea Law-governed the North Atlantic, which was
considered merely the waterway to Northern Europe and rela-
tively insignificant in comparison to the mighty commercial
center of the Mediterranean. The source of these rules has been
traced1" to the judgments of the Maritime Court of the island of
Oleron, a port city in the province of Bordeaux equidistant from
the French ports of La Rochelle and Bordeaux. (See Exhibit 2;
the arrow shows the location of Oleron on the west coast of
France.) Oleron became a prosperous port in the twelfth cen-
tury, and its code was first recognized in the middle of that cen-
tury. Whether these laws were stated by Eleanor, the mother of
England's Richard I ("The Lionhearted"),' 14 or by Richard him-
self while in Oleron on his return from the Crusades, 5 these reg-
ulations became accepted as maritime law in both England and
France, especially after Richard I inherited Oleron on the death
of his mother. This fluid form of "internationalism," indicative
of the times, was largely responsible for the promulgation of uni-
form codes for the betterment of trade and commerce.
The Rules of Oleron, adopted by England and France, the
Western World's two most powerful nations, both with strong
naval and colonial aspirations, soon became the basis for mari-
time regulations for all Northern Europe. However, the Rules of
Oleron, which covered such maritime subjects as the use of
buoys at anchor, payment of ships' crews, use of pilots, general
average, jettison, and demurrage, appeared in many forms dur-
ing the next three hundred years. Even at this early stage, na-
tionalism was beginning to rear its ugly head.

Consolato del Mare

When trade and communications became more common-
place, several "codes" appeared throughout Europe. One such
code was the Consolato del Mare, a compilation of rules which
were in effect in Genoa, Marseilles, and Valencia. This single set
of rules for these self-governing towns achieved acceptance, be-

13. C. Colombos, supra note 2, at 32.

14. R. Peters, Admiralty Decisions in the District Court of the United States for
the Pennsylvania District app. iii (decisions from 1780 to 1806).
15. Benedict, supra note 3, § 26.
1983] HISTORICAL OVERVIEW 1071

cause it was in the language used by Mediterranean traders. One

historian asserts that the Consolato del Mare had been recorded
first in 1266,16 and suggests that it might have pre-dated the
Rules of Oleron. This question arose among scholars, because
the Rules of Oleron and the Consolato del Mare are virtually
identical. Additionally, the maritime code used in the North Sea
port for Bruges in Flanders, "Les Jugemens de Damme ou Lois
de Westcapelle," appears to be a translation of the Rules of
17
Oleron.

The Rules of Visby

As expansion brought the raw materials of the Baltic Sea to
the marketplaces of Europe and the Mediterranean, the more
southerly and more sophisticated European traders became
aware of the laws and customs of Northern Europe. Visby (then
Visbuy, and the capital of Gothland), an island in the Baltic Sea
under the Swedish flag, became the center of northern trade.
Traders from Sweden, Russia, Denmark, Prussia, Germany, Fin-
land, Saxony, England, Scotland, and France all descended upon
Visby.'5 The port of Visby was developed by these foreign trad-
ers and not by the local inhabitants. Initially, these foreigners
were welcomed by the residents of Visby and were accorded the
same privileges as the townsmen themselves by local magistrates
who had jurisdiction over all causes or suits relating to maritime
affairs."9 Indeed, comparison of the Rules of Oleron and Visby,
the latter published in 1505,0 reveals similarities. In fact, of the
seventy articles of the Rules of Visby, over half are also con-
tained in the Rules of Oleron. This is not surprising since the
port of Visby had been constructed by and at the expense of the
foreign traders who brought with them familiar customs and
procedures.
Even though they had not built the port, the natives of
Gothland became increasingly disturbed about the loss of poten-
tial profits they suffered as a result of this heavy commercial
invasion by foreigners. In the thirteenth century the King of

16. R. Peters, Admiralty Decisions, supra note 14, app. lxviii.

17. Benedict, supra note 3, § 7.
18. R. Peters, Admiralty Decisions, supra note 14, app. lxvii-lxviii.
19. Id.
20. C. Colombos, supra note 2, at 33.
1072 TULANE LAW REVIEW [Vol. 57

Sweden, pursuant to the requests for protection by the traders

of Visby, built a wall around the city so that the rural farmers
could be kept out and the trade of the city developed.2 1 How-
ever, it is significant that, despite the international trade cen-
tered on the island, the Rules of Visby were maintained in their
original language-a form of Swedish not generally understood
outside of Scandinavia. Thus, even though the Rules of Visby
may not have been very different, substantively, from their ante-
cedents in Oleron, it was still necessary for foreign traders to
deal with the natives and their legal system. This allowed the
local merchants and government officials of Visby to benefit
from and control the trade to and from their island. If the Rules
of Visby had varied substantially from those with which the
merchants were familiar, it is likely that Visby would never have
become such an important trading center. Yet if the laws had
not been maintained in the Swedish language, as written and
spoken in Visby, control of trade would probably have eluded
the natives and been held by the foreign merchants and traders.

The Hanseatic League

The Hanseatic League was a confederation of merchants at
mostly Northern European seaport cities (including Visby)
called "Hansa Towns." The League, which developed in spite of
national diversities, resulted in a remarkable degree of uniform-
ity in maritime law. (See Exhibit 3.) The development of the
Hanseatic League is of special significance, because it demon-
strates that merchants, unencumbered by excessive political
pressures, can effectively regulate commerce in a way which is
mutually beneficial.
These various ports, initially forming a trading conglomer-
ate for protection against the piracy of the Baltic Sea, soon grew
to be -a commercial entity, consisting of and governed by traders,
and generally far more powerful in that era than any single na-
tion. This unity, which had its start during the mid-thirteenth
century, resulted in a maritime code published in Lubeck in
1597. The original code openly borrowed from the Rules of
Visby and Oleron, although revisions were made in 1614 to in-
corporate new towns and trading arrangements.2 2 The emer-

21. R. Peters, Admiralty Decisions, supra note 14, app. lxvii.

22. Id.
1983] HISTORICAL OVERVIEW 1073

gence of nationalism in Northern Europe, however, eventually

challenged the trade network of the Hanseatic League, which as
a result declined in influence during the mid-seventeenth
3
century."

Partitionof the Seas and Grotius' Mare Liberum

During the sixteenth and seventeenth centuries, trade and

expansionism had led the powerful seafaring nations to declare
sovereignty over the seas. Spain claimed to control the West At-
lantic, Portugal the East, and Britain the North. This "partition
of the seas" excluded all other nations from opportunities to ex-
pand their sea trade, and was particularly detrimental to North
European merchants. In response, Grotius, a Dutchman, pub-
lished in 1608 the Mare Liberum, which asserted the doctrine of
freedom of the seas. He maintained that all open navigable wa-
ters were for the use of all nations, and that there should be free
passage through channels between countries. This last concept
was aimed directly at the English Channel, which, if it were to
be declared the sovereign waters of Britain, would restrict North
Europeans from access to India and other rich trade routes to
the Far East.

True to the emerging spirit of nationalism, Britain's fore-

most legal theoretician, John Seldon, who was also a member of
Parliament, replied in 1618 by claiming all seas for Britain.
Though published by Charles I in 1635, this doctrine was never
formally pursued by Britain." By the end of the seventeenth
century, with the advent of such edicts as the Ordinance de la
Mer of Louis XIV (1681) put together by Colbert, the creator of
the French merchant fleet as well as the originator of foreign
tariffs as we know them today, it was increasingly apparent that
most governments were seeking the advantage of controlling the
commerce within and touching their confines. As governments
moved in, merchants were forced out.

23. In passing, it should be noted that Sweden's maritime code, adopted in 1667
and written by Heidrick de Moucheron, relied heavily upon the Visby and Hanseatic
precedents. K. Mod~er, Frann Grotius Till Gr6nfors (1981).
24. Id.
1074 TULANE LAW REVIEW [Vol. 57
THE ENGLISH DOCTRINE OF UNIFORMITY OF MARITIME LAW:
MERCHANTS V. MONARCHS?

During the Middle Ages the legal system had little relevance
for the vast majority of Englishmen. Feudalism carried its own
form of justice and equity, and only the feudal lord-not "the
ordinary mortal"-was obliged to refer to any outside authority
for the assertion of his rights.
However, the rise of a new English merchant class and the
influence of traders from the more experienced mercantile cen-
ters of the Mediterranean required that forii be established in
the North for the resolution of import and export disputes.
Many of the early traders had come from these prosperous Eu-
ropean commercial centers. Foreign trading had originally been
limited to market towns, designated by a 1353 statute25 as "sta-
ple towns," which provided specialized markets for international
merchants and restricted competition with domestic fairs. On
market days these towns, which had exclusive jurisdiction over
foreign disputes, held court. The juries of these "staple" courts
'26
were comprised of foreign nationals, or "de medietate linguae.
This international composition was intended to insure foreign
merchants a fair trial without the possibility of local prejudice.
These courts applied law as they perceived it, almost regardless
of the source of law, in order to achieve commercial fairness:
Thus, the Chancellor in 1475 said: This suit is brought by an
alien merchant who has come to conduct his case here; and he
ought not to be held to sue according to the law of the land, to
await trial by twelve men and other solemnities of the law of
the land, but ought to sue here, and it ought to be determined
according to the law of nature in the Chancery, and he ought
to be able to sue there from hour to hour and day to day for
the speed of merchants . . . . And he said besides that
merchants, etc., shall not be bound by our statutes where stat-
utes introduce new law, unless they are declaratory of ancient
law, that is to say nature, etc.... but that will be according to
the law of nature which is called by some the 27
law merchant,
which is universal law throughout the world.

25. Statute of the Staple, 1353, 27 Edw. 3, stat. 2, repealed by Statute Law Revi-
sion Act, 1863, 26 & 27 Vict., ch. 125.
26. A. Kiralfy, Potter's Historical Introduction to English Law and Its Institutions
188 (4th ed. 1958).
27. Id. at 183.
1983] HISTORICAL OVERVIEW 1075

Fines levied by these "staple" courts were retained by the per-

son or corporation holding the franchise on the market in the
town, just as it collected tolls from those entering the
marketplace.
Similarly, shipping and related commercial activities cen-
tered around the trading centers in England where the Rules of
Oleron had been followed to a fairly strict degree. Perhaps the
most active of these centers were "The Cinque Ports,"28 an asso-
ciation created by royal charter in the eleventh century, which
later became the host of the royal fleet. (See Exhibit 4.) It
should be noted that these centers were not "cinq," they were
"sept," and they were not necessarily "ports." Each of the Cin-
que Ports maintained a book of rules and regulations and set up
courts which were distinctively international in nature.
Edward I realized that the growth of trade and shipping had
brought in to the Cinque Ports substantial revenues over which
he had no control, but which it would be advantageous for him
to obtain. Thus, the Crown stepped in when it became clear that
the financial power base was shifting, at least to some degree,
from land-based commerce to maritime commerce. Until that
time, the function of the English Court of Admiralty, as an ex-
tension of the Crown, had been to adjudicate disputes within the
Royal Navy. By an ordinance of 127429 Edward I attempted to
expand the jurisdiction of the Admiralty Court:
[I]t was ordained at Hastings by King Edward the first
and his lords, that though divers lords had several franchises to
try pleas in ports, that neither their seneschalls (or stewards)
nor bayliffs should hold plea, if it concerns merchant or Mar-
riner as well for fact as charter of ships or (charter partyes)
obligations, and other facts, though the same amounts but to
twenty shillings or forty shillings ...
* . .[A]ny contract made between merchant and merchant,
or merchant or marriner beyond the sea, or within the flood
mark, shall by tryed before the Admiral and no where else by
the ordinance of the said King Edward and his lords.30
Because the Admiral of the Fleet was personally appointed by

28. The original Cinque Ports, originating from the French word "cinq," meaning
five, were Hastings, New Romney, Hythe, Dover, and Sandwich.
29. Black Book of the Admiralty (1871), reprintedin Benedict, supra note 3, § 29.
30. Id.
1076 TULANE LAW REVIEW [Vol. 57
the King, the independence and trade orientation of the local
merchant and mercantile courts had been wiped out in one
stroke.
During that period of the twelfth and thirteenth centuries,
the diverse records of the ports of England were combined with
somewhat erratic and incomplete accounts of maritime decisions
from the port towns into what was known as "the Black Book of
the Admiralty." Though initially little more than a "log book" of
Admiralty decisions, by the time the Admiralty Court had
gained a foothold, the Black Book was considered an authorita-
tive text. While the Black Book cites some of the Rules of
Oleron, its significance lies in the fact that it essentially created
an English law of Admiralty as distinguished from formulating a
maritime code in conformity with international commercial
usage.
During the Elizabethan period, the continued expansion of
shipping resulted in a growth in the stature and influence of the
Admiralty Court. Admiralty practitioners, litigating commercial
matters such as negotiable bills of lading, were increasingly con-
sidered by common law practitioners to have more than their
fair share of jurisdiction, legal business, and concomitant re-
wards. Thus, a serious conflict arose between these two courts,
which lasted through the seventeenth century.
As a means of regaining a greater share of jurisdiction, com-
mon law courts utilized writs of prohibition against the Admi-
ralty, prohibiting those courts from hearing many maritime
causes of action. Opponents of the Admiralty Court used these
writs to remove cases to common law courts upon the rationale
that the Admiralty Court was not a "court of record." In
stressing the debilitating effect which this procedural ploy had
upon admiralty jurisdiction, one authority stated that
"[p]rohibitions were hurled from Westminster and without
much order, serving, therefore, more to irritate than to subdue
the Admiralty Court which, though powerless and without the
means of attack, obstinately held out for its ancient and time-
honored privilege." 3' 1 An additional procedural device was used
by common law. courts to restrict the jurisdiction of the Admi-

31. 4 A. Knauth, Benedict on Admiralty § 690 (6th ed. 1940) (quoting Edwards'
Ad. Juris. 17). See, e.g., Smart v. Wolff, 100 Eng. Rep. 600 (K.B. 1789).
1983] HISTORICAL OVER VIEW 1077

ralty Court. Common law courts could exercise jurisdiction over

"transitory" actions by creating a fiction that a maritime case
came, along with the defendant, into England. Thus, as long as
the defendant could be served within England, the court would
hear the case and apply English law: "in Bordeaux to wit in the
3' 2
parish of St. Mary-le-Bow in the Ward of Cheap.
The hostilities between practitioners of admiralty and Lord
Coke's common law supporters continued to develop during
Queen Elizabeth's reign. However, in 1575, the Admiralty and
common law judges entered into an agreement pursuant to
which the Chancellor agreed to use the writ of prohibition more
cautiously against Admiralty Courts in exchange for his acquir-
ing jurisdiction over charter parties made in England for over-
seas performance. 3
By this time the Admiralty Court had been moved from
London Bridge to Doctors' Commons, an area closer to the
Strand and the Law Courts. The relationship between the prac-
tice of Admiralty and the Doctors' Commons had originated in
1430.1" Doctors' Commons has been described as "the college of
civilians, where the civil law is studied and practised, and de-
rives its name from the civilians commoning together as in other
colleges. Here are kept the courts which have cognizance of inju-
ries of an ecclesiastical,military, and maritime nature. 3 5 The
Doctors' Commons, "the bastion of the civil law in England, ' 6
essentially was the Admiralty Court in England for hundreds of
years. However, the lack of commercial expertise on the part of
the common law courts continued to disturb many merchants,
who wished to preserve the independence and efficiency of mari-
time practice. Eventually, their protests led to an agreement in
1632 which established concurrent jurisdiction of both courts
over contracts made and torts committed "upon" or "beyond"

32. G. Radcliffe & G. Cross, supra note 3, at 250. Though the pleading involves a
fictive geography, if the action is not a local action, the defendant cannot take exception
to it. Id.
33. The Request of the Judge of the Admiralty to the Lord Chief Justice of her
Majesty's Bench and his Colleagues, and the Judges' Agreement, the 7th of May, 1575,
reprinted in Benedict, supra note 3, § 42, at 3-3.
34. W. Senior, Doctors' Commons and the Old Court of Admiralty 33 (1922).
35. 1 R. Ackermann, The Microcosm of London 224 (1808) (emphasis in the
original).
36. F. Wiswall, The Development of Admiralty Jurisdiction and Practice Since
1800, at 75 (1970).
1078 TULANE LAW REVIEW [Vol. 57

the seas.37

The ebbing tide of admiralty jurisdiction was stopped in

1875 when the Judicature Act established the "High Court" with
a Division of Probate, Divorce, and Admiralty. This curious mix-
ture of specialized tribunals arose out of their traditional con-
nection within the Doctors' Commons,38 which, in turn, may
have derived from the internationalorigins of those courts: Pro-
bate and Divorce from the Church, and Admiralty from the high
seas, but all from civil law sources.
Throughout that period, the admiralty bar in England was
watched by the predominantly Protestant dominated common
law courts "with the jealousy and suspicion which they bestowed
upon all jurisdiction tainted with Romanism." 3 9 It was this long-
standing objection to specialized Admiralty courts with civil law
influences that caused the eventual abolition of the Division of
Probate, Divorce, and Admiralty." The long term result was a
decline of the international uniformity that had previously ex-
isted in the area of maritime trade. Lord Esher, the Master of
Rolls in 1895, stated:
Neither the laws of the Rhodians, nor of Oleron, nor of Wis-
buy, nor of the Hanse Towns, are of themselves any part of the
Admiralty law of England. It was attempted by one of the
counsel for the respondents to say that the laws of Oleron were
to be considered as part of the law of England. To any one who
reads some of their strange enactments ... it must be ridicu-
lous to suggest that they are part of the English law. But they
contain many valuable principles and statements of marine
practice which, together with principles found in the Digest
and in the French and other ordinances, were used by the
judges of the English Court of Admiralty when they were
moulding and reducing to form the principles and practice of
41
their Court.

37. Benedict, supra note 3, § 44, at 3-15.

38. See F. Wiswall, supra note 36, at 96-115.
39. J. Baker, An Introduction to English Legal History 108 (2d ed. 1979).
40. In 1970, admiralty business was transferred to the Queen's Bench Division by
the Administration of Justice Act, 1970, ch. 31, § 1.
41. The Gas Float Whitton No. 2, 1896 P. 42, 47-48 (C.A. 1895).
1983] HISTORICAL OVERVIEW 1079

THE ENGLISH-SPEAKING COLONIES OF THE NEW WORLD

Colonial Vice Admiralty Courts and the Silver Oar

In colonial times in North America, when the thirteen colo-
nies were sources of goods for use in England, English law, of
course, governed at ports of loading and discharge. Admiralty
law was administered through the courts of Vice Admiralty, "ac-
cording to the ordinances and statutes of our High Court of Ad-
miralty in England."42'

The New York Court of Vice Admiralty, for example, was

established on October 5, 1678, with Mayor Van Cortland as its
first judge. As an indication of this uniformity, both the English
Court and its colonial progeny had as their symbol the Silver
Oar. The New York Oar, engraved with the English Coat of
Arms on the blade and the "Court of Vice Admiralty of New
York" on its handle, was a visual link with the parent court. Sir
Barry Sheen has brought the Oar back to use in London, and
the writer would like to see that happen in the United States.

Applicability of British Law

Under the Imperial concept of Britain's sovereignty, colo-
nies were considered geographical extensions of the Crown's do-
main, as much a part of England as Yorkshire or Kent. This
contrasts somewhat ironically with Scotland and Ireland, both
much closer to the English home. Many British statutes contain
clauses stating the extent to which they apply to Scotland and
Ireland. No such respect was paid to the Colonies. All colonial
outposts of the British Empire were considered ipso facto to be
fully subject to English law.

Independence
These restrictions were not well taken by the colonials, who
felt they should have some say in their own destiny. The local
residents therefore combined to put the world on notice as to
the unjust sovereignty exercised by the King:
He has refused his Assent to Laws, the most wholesome and
necessary for the public good .... He has obstructed the Ad-

42. Commission of Lord Cornbury, Governor of New York, Oct. 3, 1701, reprinted
in Benedict, supra note 3, § 65, at 5-5.
1080 TULANE LAW REVIEW [Vol. 57
ministration of Justice, by refusing his Assent to Laws for es-
tablishing Judiciary powers .... He has combined with
others to subject us to a jurisdiction foreign to our constitution,
and unacknowledged by our laws; giving his Assent to their
Acts of pretended Legislation.4"
Though those objections may seem technical and esoteric,
they were at the core of the Declaration signed on July 4, 1776., 4

State Courts Exercising Admiralty Jurisdiction

In the first years of our existence as a nation-under the
Articles of Confederation-each state acted independently of
the others, especially with regard to commercial matters. As
stated by one historian:
The Confederation had no power over the commerce of the
States; even if it had possessed such a power it is doubtful if it
could have enforced it upon the practically independent sover-
eignties of which it was the nominal bond of union. The State
governments acted like the rulers of distinct nations in the
matter of imports and exports; the products of Virginia could
not be caried across the Potomac into Maryland without pay-
ing heavy duties .... [N]early all the States with important
seaports contended with each other in bitter rivalry for the
control of trade by offering lower duties and more favorable
navigation laws.45
By an ordinance of January 0, 1776, Virginia established a
three-member tribunal, which was replaced in October of that
year by Thomas Jefferson's state court system. Jefferson's sys-
tem, which served as a model for the federal system, contained a
separate admiralty court. In March of 1776, Rhode Island first
established a court specifically to dispose of prize disputes, only
to replace it in 1780 with a full admiralty court, the authority of
which was derived from the court of Richard II. Pennsylvania
established a broad admiralty court in 1778, which in 1780, was
by statute made "[l]iable to the prohibition of the Supreme
Court of Judicature in like manner, and with like effect, as the
prohibition of the Court of the King's Bench in England, in like
4
cases." 6

43. The Declaration of Independence para. 29-31 (U.S. 1776).

44. Id.
45. 3 Pa. L. Series 77-78 (Oct. 15, 1896).
46. D. Robertson, Admiralty and Federalism 98-99 (1970).
1983] HISTORICAL OVERVIEW 1081

The Admiralty Clause of the United States Constitution

The Articles of Confederation having been found ineffective,
the present United States Consititution was adopted in 1789.
Article III, section 2 provides, among other things, that "the ju-,
dicial Power [of the United States] shall extend to all Cases of
admiralty and maritime Jurisdiction." Pursuant to that provi-
sion, commonly called "The Admiralty Clause," section 9 of the
Judiciary Act of September 24, 1789 states: "And be it further
enacted, That the district courts . . . shall also have, exclusive
original cognizance of all civil causes of admiralty and maritime
jurisdiction . . . ; saving to suitors, in all cases, the right of a
common law remedy, where the common law is competent to
give it . . .-.
As a result of this statute, and its successor dated May 8,
1792,48 federal courts have jurisdiction over all causes of action
arising under the maritime law, no matter how small the amount
involved in the dispute. Accordingly, federal courts "sitting in
admiralty" often are obliged to hear cases involving amounts so
small that they are comparable to non-admiralty cases heard by
state "small claims" courts. 49 But the meaning of the "saving to
suitors" clause of the Judiciary Act has been the source of con-
siderable controversy. The 1948-49 revision of the Act did not
resolve the question. The current wording is as follows: "The
district courts shall have original jurisdiction, exclusive of the
courts of the States, of: (1) Any civil case of admiralty or mari-
time jurisdiction, saving to suitors in all cases all other remedies
' 50
to which they are otherwise entitled.

The peculiar result of the application of these clauses has

been that, generally speaking, the only cases which fall under
the exclusive maritime jurisdiction of the federal courts are in
rem proceedings against vessels. Also, some types of cases, such
as foreclosures of vessels under a preferred ship mortgage, can
only be heard in federal courts. Conversely, in personam cases,

47. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76-77 (current version at 28 U.S.C.
§ 1333 (1976)).
48. Act of May 8, 1792, ch. 36, 1 Stat. 275.
49. For a list of types of cases which clearly fall within admiralty jurisdiction, as
well as some which look like admiralty cases but have been held not to be, see G. Gil-
more & C. Black, supra note 3, §§ 1-10, at 22-29.
50. 28 U.S.C. § 1333 (1976).
1082 TULANE LAW REVIEW [Vol. 57
whether under common law or equity, can be brought in non-
maritime courts (state courts in all instances, federal courts if
there is, for example, diversity of citizenship) even if the cause
of action arose on navigable waters and would also be cognizable
in admiralty.

The power of the federal government to legislate in mari-

time matters arises from the application of the Admiralty Clause
of the United States Constitution together with the Commerce
Clause which provide that Congress shall have the power to reg-
ulate interstate and foreign commerce. 5 ' All federal legislation in
the maritime field rests upon these clauses. However, states have
the power to legislate in this field, at least until federal legisla-
tion preempts the field. 5

The conflict between the federal government and the fifty

individual states with respect to the power to legislate in mari-
time matters and the power to adjudicate maritime controversies
continues unabated, as demonstrated by the various state water
pollution statutes such as the Florida act involved in Askew, 53
and the questions of which substantive law applies when a state
court hears a maritime dispute. 54 As stated by Gilmore and
Black:
Just as there has been conflict between the state and federal
courts over judicial jurisdiction in certain maritime cases, so
there has been a good deal of trouble in the relations between
this federal maritime law and the common law and statutory
enactments of the states. The state-federal conflict in admi-
ralty is one of the sub-problems of federalism. The nation as a
whole has a vital interest in the shipping industry as a whole,
but states such as New York and Washington are also deeply
concerned with the local problems created by the shipping that
touches their ports, and they have articulated this interest in a
mass of legislation dealing with shipping matters.

...Such state legislation is clearly invalid where it actu-

ally conflicts with the established general maritime law or fed-

51. U.S. Const. art. I, § 8.

52. See Askew v. American Waterways Operators, Inc., 411 U.s. 325, 1973 A.M.C.
811 (1973), rev'g 335 F. Supp. 1241, 1972 A.M.C. 91 (M.D. Fla. 1971).
53. Id.
54. Calderola v. Eckert, 332 U.S. 155, 1947 A.M.C. 847 (1947).
1983] HISTORICAL OVERVIEW 1083
eral statutes.5

The relationship between the federal and state systems of mari-

time legislation and adjudication, therefore, is best described in
negatives: not mutually exclusive, yet distinct; not parallel pow-
ers, but exercising similar authority.

The Role of the Maritime Law Association of the United States

and the Comit6 Maritime International
In 1889, most likely in response to the growing concern in
Europe over the need for uniform international maritime law, 56
the President of the United States called an International
Marine Conference which took place in Washington in October
of that year. The preamble to the report of that Conference
states:
It is a well-known fact, that it is only lately that the
merchant shipping has thoroughly felt the inconvenience of the
discrepancies in the rules by which its relations in the different
countries have been regulated ....
Gradually, as the commercial intercourse has increased,
the navigation is getting more and more cosmopolite [sic], and
the ship owners and merchants of all nations are associated in
such a manner that to the commercial world it is an indifferent
matter whether the goods are transported in the ships of one
nation or another ....
The natural consequence hereof seems to be that it is in a
high degree to be wished for, and in certain respects necessary,
that all laws and regulations concerning shipping and naviga-
tion are drawn up as uniform as it in any way can be accom-
plished; in short, that in the navigation of the ocean, the high-
way at sea of all nations, a universal law system should be
57
obeyed.

This may have been the last time that the United States offi-
cially addressed uniformity in such a manner. Notwithstanding
the strong initiative taken by this country in this instance, the
results, though lengthy and detailed, never have been formally
adopted by Congress.

55. G. Gilmore & C. Black, supra note 3, §§ 1-17, at 47-48.

56. For example, a Swedish Law Committee met in 1876, and the foundations were
already laid for the first meeting of the Comit6 Maritime International (CMI) in 1896.
57. 3 International Marine Conference of 1889, at 350 (1890).
1084 TULANE LAW REVIEW [Vol. 57

The Maritime Law Association (MLA) of the United States

was formed in New York on June 21, 1899, its principal objec-
tives being:
to advance reforms in the Maritime Law of the United States,
to facilitate justice in its administration, to furnish a forum for
the discussion and consideration of problems affecting the
Maritime Law and its administration, and to act with foreign
and other Associations in efforts to bring about a greater har-
mony in the Shipping Laws, regulations and practices of differ-
ent nations."

The membership of the MLA has always been composed of law-

yers, judges, and non-lawyers-specialists in the maritime field.
The MLA was born out of the desire of active participants in the
maritime world to bridge the national barriers and establish
unity of interest in the betterment of those who serve on the
seas. Despite the work of the MLA toward uniformity, of the
twenty-two international conventions in force involving mari-
time law (as distinguished from technical matters), the United
States government has placed its faith in only two.5 9 The MLA
was, of course, founded as the United States "chapter" of the
Comit6 Martime International (CMI). The CMI had been
founded in Belgium in 1896 as a "non-governmental Organiza-
tion the object of which is to contribute by all appropriate
means and activities to the unification of maritime and commer-
cial law, maritime customs, usages and practices."6 0 Three of
these words recognize the past history of maritime law, its pre-
sent dilemma, and its future. The first is non-governmental, in-
dicating its professional rather than political foundation. The
second is, of course, uniformity, a word used by governments as
often as it is not practiced by them. The third is commerce; by
placing this word back into the field of maritime law, one can
refocus upon the genesis of maritime law, its purpose, its future,
and, hopefully, its prosperity.

58. Maritime Law Association Articles of Association and By-Laws, art. 2, re-
printed in 2 M.L.A. Doc. 513 (Jan. 1967).
59. Bills of Lading (Hague Rules), Aug. 25, 1924, 51 Stat. 233, T.S. No. 431; Assis-
tance and Salvage at Sea, Sept. 23, 1910, 37 Stat. 1658, T.S. No. 576. See C.M.I. Y.B.,
1981-1982 Annuaire 64, 80.
60. Comit6 Maritime International (CMI) Const. art. I, reprinted in C.M.I. Y.B.,
1981-1982 Annuaire 1.
19831 HISTORICAL OVERVIEW 1085

Official Attitudes of the United States Concerning Interna-

tional Maritime Conventions, Including the 1982 United Na-
tions Convention on the Law of the Sea, and International
Maritime Organization (IMO)
The advent of modern sea transportation, dependence on
foreign nations for vital commodities, and the ever-escalating in-
terdependence in foreign affairs have brought the sea well within
the concerns of politicians and governments. The phrase "law of
the sea" is, however, different from "maritime law." The law of
the sea refers to the respective rights of states over the world's
waterways.
The historic function of the law of the sea has long been recog-
nized as that of protecting and balancing the common inter-
ests, inclusive and exclusive, of all peoples in the use and en-
joyment of the oceans, while rejecting all egocentric assertions
of special interests in contravention of general community
interest. 1

It is not surprising that in the law of the sea, as in all inter-

national politics, the super powers have played a dominant role.
The recent Third United Nations Conference on the Law of the
Sea, held in Montego Bay in October of 1982, was an attempt at
gaining a uniform approach in the law of the sea. However, the
United States did not sign the resulting treaty. Instead the
United States signed an agreement concerning interim arrang-
ments, with France, West Germany, and the United Kingdom,
on September 2, 1982.

The United Nations, acting as a catalyst in the forum of

international politics, established the Inter-Governmental Mari-
time Consultative Organization (IMCO, now IMO), which has
been active since 1948. Its main function has been to promote
and organize international conventions on areas of importance in
maritime matters. These conventions have covered such areas as
Safety of Life at Sea, Prevention of Collisions at Sea, Interna-
tional Maritime Traffic, and Oil Pollution.

61. M. McDougal & W. Burke, The Public Order of the Oceans 1 (1962). See also
D. Bowett, The Law of the Sea 1-3 (1967).
1086 TULANE LAW REVIEW [Vol. 57
CONCLUSION

Justice Holmes, in his dissent in Southern Pacific Co. v.

62
Jensen, stated that "[tihe common law is not a brooding omni-
presence in the sky, but the articulate voice of some sovereign or
quasi-sovereign that can be identified. . . In olden times,
the voice which articulated the general maritime law was that of
international commercial traders speaking through the Rhodian
Laws, the Rules of Oleron and Visby, the Hanseatic League, and
the staple courts of the English "Cinque Ports." The uniformity
which had developed in this way devolved into many voices with
the rise of nationalism and international rivalry.

Whatever else one may say about Napoleon, his conquests

had the good result of re-establishing a kind of uniformity of
maritime law in the nineteenth century, simultaneously with the
remarkable development of steam shipping. The impetus was
picked up by the International Law Association, founded in
1873, out of which was created the Comit6 Maritime Interna-
tional in 1896.64 Other efforts at uniformity resulted in the York-
Antwerp Rules of General Average and the International Rules
for Collision at Sea. But all these were accomplishments of the
commercial and professional maritime world, albeit often sup-
ported by governments.

The voices of the commercial and professional world must

now be heard through the IMO-the new international broad-
casting station for the development of uniform maritime laws.
Even though the official delegates in most instances are "govern-
ment hands," the contributions of the private sector must be
made. It is pleasing to note that increasingly the United States
delegation to the IMO legal committee--which now plays a ma-
jor role in the development of international legal conventions
such as the Collision Liability and Fund Conventions-listens to
the private sector. The Maritime Law Association works closely
with the official United States delegation. Also, concurrently, the
CMI has observer status at the IMO legal committee and its
statements are sought and considered.

62. 244 U.S. 205, 218 (1917).

63. Id. at 222.
64. It was resolved at the Eleventh Conference of the International Law Associa-
tion, held in Milan in 1883, that an International Maritime Commission be established.
1983] HISTORICAL OVERVIEW 1087

In short we have-I hope-completed the circle: most gov-

ernments and intergovernmental organizations are now working
hand in hand with private industry in the developing of uniform
maritime laws. In closing I wish to reiterate the words of the late
Professor Plinio Manca of Genoa University: "Maritime trade
having an international character, the logical corollary flowing
from this truth is that the ideal legal system to govern it be a
uniform one, that is identical in every State: [uniformity belongs
to the very essence of maritime law]. 6' 5 Let us strive to achieve
uniformity wherever possible.

65. 1 P. Manca, supra note 1, at 10-11.

1088 TULANE LAW REVIEW [Vol. 57

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1983] HISTORICAL OVERVIEW 1089

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