In the case when a ship would return home without the bartered goods of one or more m erchants, the captain might claim that he had had to jettison them overboard during a storm to lighten the ship to save the vessel and the remaining cargo-not to mention the lives of the crew. Upon inves tigation, merchants began to realize that such misfortune most often befell the
You may ask why someone doesn't propose to update this ancient concept, bringing it in line with modern times and compelling the ocean carrier to assume the sam e liabilities as a trucking company or a railroad. There is good reason for thi s: having evolved from precedents, commercial usages, arbitration and court rulin gs, the rules fo rm a predictable platfo rm fo r
Empi re and the collapse of the W estern (Latin) E mpire, no individual power was strong enough to exercise that kind of control. With the disruptions caused by the invasion of Asiatic tribes into Western E urope, little energy was lefr to spend on ocean ventures. Th at power vacuum led to a dram atic rise in piracy in the M editerranean and in other coastal waters.
"~ tfte !cul? !!f1uttt{/)ce tne6e tltl/J7:!1,6 cv1ce e01JUJW1'b t°' nuvnkl/Jict- the al/Jc,, JCt{/)Uil/J7ff tf/ate1c,, tfte 6ea.1, cunct eo/Ji6f3fttent-fy the 6ft01ce6 goods that would have returned low commissions to the captain, while other more profitable goods had not been sacrificed . As a consequence, eventually a n agreement was reached that established that all participants in a commercial venture would share in the loss of any sacrifices m ad e in the course of a voyage . Out of this jo intventure concept arose the rules of "Ge neral Average," first embodied in Rhodian Law around 800 BC. This original concept has been greatly expanded and overshad owed in many aspects by modern legislation, but the underlying principle has survived . It is reflected in contemporary m a ritime practices and legislation and expressed in the "York-A ntwerp Rules of General Average," first promulgated in 189 0.These rules are now incorporated into all contracts of ocean transportation . (The word "average" is derived from the French word "avarie" and m eans "accident.") It is important to stress the continuity of the legal concepts surrounding a sea voyage. Today the technical problem s and risks of an ocean voyage are quite different from what they were in earlier times. No longer on adaringadventure full ofuncertainty, the carrier of goods on the high seas still enjoys a privileged position, both in commerce and in contract. Following the concepts of the joint-venture principle, which are the underpinnings of the General Average rule, he can exempt himself from a va riety ofli abilities towards the owner of the goods, which a carrier of goods on land must accept, provided that the ship was seaworthy at the commencement of the voyage. The contract of carriage is described in the Bill of Lading, in which the obligations of the carrier and his liberties are described in detail. SE A HISTORY 128, AU TUMN 2009
conduct of maritime transportation between countries having different legal regimes. A body of mari time law has developed which can be q ui te different from the lega l regime of any individu al nation, facilitating the orderly conduct of m a ritime commerce. The rules are, of course, subj ect to change with advances in technology a nd ch a nges in commerce. An Internet search will lead yo u to the changes to Rotterd am Rules now being considered. As a reflection of the lon g evolutionary history of m aritime commerce, we find that in m aritime contrac ts, especially in m arine insurance, archaic language is ofren re tai ned because of precedent and predictability of meaning and intent. During the rule of the Rom an Empire, the M editerranean Sea was considered "Mare Nostrum," or "Our Sea," and the concept of " freedom of the seas" was not applicable because all the surrounding lands were already under Roman rule, m aking it easy fo r them to deny access to any opponent. By about 530 A D , however, Emp eror Justinian I proclaimed that the oceans were common to all m en. At that point, however, the Roman Empire was already disintegrating and had lost the might it once had. Perhaps Justinian simply wished to m ake a virtue out of necessity. This was a revolutionary idea at the time and did not find ready acceptance. After the partition of the Roman
-Justinian I
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(527-565 AD)
W ith the C rusades came a resurgence of interest in maritime affairs which propelled the need to regulate them. As a res ult, in 1150 Queen Eleanor of Aquitaine promulgated the Laws ofOleron, which were intended to regulate the trade of wine and oil between her possessions and England. With her subsequent m a rriage to Henry II in 1152, she not only broughtAquitaine under the rule of the English Crow n, but she also brought w ith her the Laws ofOleron to E ngla nd. The system of describing the size of ships, for example, derives from these laws. A ship's capacity for cargo was expressed in the number of barrels, or "tuns"-presumably of wine or oil- a ship could load . The "tuns" becam e "rons" and are now called registered tons, which measure the volume available for cargo expressed in units of 100 cubic feet. Registered tonnage is a m easurement of the earnin g capaci ty expressed in volume and has nothing to do with weight. The formul as for measuring tonnage are rather complex and are subj ect to international convention . The Laws ofOleron were largely adopted by the H anseatic League and became the basis of maritime legislation in Wes tern Europe and eventually of the m aritime codes of practically all natio ns. In the thirteenth century, the Venetians claimed sovereignty over the Adriatic Sea and began levying tolls on ships passing
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