Maritime Law as a Mixed Legal System

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Greetings Folks:

It is obvious that certain INDIVIDUALS do not want this information in the hands of those whoare awakened to what law is, and is not. These Mixed Jurisdiction articles by Professor WilliamTetley were intended for the benefit of those in government and the legal profession, not the

masses.

Will someone please tell me what happened to Tuesday night's Broadcast, and what abouttonight's broadcast on RIB Radio?

Please share these articles on Mixed Jurisdiction with others. If people comprehend what iscontained in these series of articles they will become less deceived by paytriots for profit andgurus selling snake oil.

Pay attention to "private law" and how the banksters converted the English and American Lawover two hundred years and then other Nations in the 1800s, giving American banksters astranglehold on commerce throughout the world and control of court systems to extort wealth.

You can now comprehend why they do not want my voice heard. Pay attention to AmericanMaritime Law on mortgages, liens, foreclosures and seizures; and the American banksterschange these laws to benefit their profits.

You will need copy of a good English Dictionary, I recommend The Random House DictionaryOf The English Language, College Edition, and Black's Law Dictionary, because I assure youthat you will not comprehend what you are reading without referring to these dictionaries. Thecomprehension level of this writing is college level or above. Basically, Professor Tetley did notwrite this article for surfs and peasants to comprehend. Also, pay close attention to terms inquotation marks. Look-up the definitions thereof.

Don't assume anything. Assume means to believe something falsely, as most dumb Americansheople believe that all sorts of fictional entities or beings are real. Fear is how tyrants controltheir slaves and subjects. Presume means to believe something to be fact, whether or not it isindeed fact. Presumptions must be refuted or rebutted, or stand as fact.

Happy reading. This will help one better to deal with banksters, attorners and black robed devils.Emailing this will endanger my life once again but "quite frankly... I don't give a DAMN" sincethis information has now "Gone With The Wind."

Sir David-Andrew.

Maritime Law as a Mixed Legal System


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(with particular reference to the distinctive nature of

American maritime law, which benefits from both its civil

and common law heritages)

final version published in (1999) 23 Tul. Mar. L.J. 317

William Tetley, Q.C.(1)

INDEX

I. Preface

II. Introduction

III. The Plan and Purpose of this Paper

IV. Maritime Law Is A Complete Legal System

V. The Two-fold Composition of Maritime Law

VI. Precedence of National Statutes and International Conventions

VII. The Civilian Origins of Maritime Law

1) Maritime law as civilian

2) The early maritime codes

3) Early civilian concepts in the maritime law

4) The Admiralty law of England

VIII. The Influence of the Common Law on Maritime Law

IX. The Reception of the General Maritime Law into U.S. Law

1) Introduction

2) Reception of the general maritime law

X. Classic Civil Law Principles Found in American Maritime Law

1) Shipowners' limitation of liability and abandonment

2) The attachment
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3) Proportionate fault

4) The codification of maritime lien law

5) Maritime liens are rights

6) Wrongful death

7) Liens on cargo for demurrage without contract

8) Equity

9) Marine insurance

10) General average

11) Salvage

12) Maintenance and cure

XI. Classic Common Law Principles Found in American Maritime Law

1) The ship mortgage

2) The collision lien

3) Arrest in rem

4) No cure/no pay in salvage

XII. The Importance of Understanding the Civil and Common Law Origins of American

Maritime Law

1) Schiffaharts. Leonhardt & Co. v.A. Bottacchi, 773 F.2d 1528, 1986 AMC 1 (11 Cir. enbanc 1985) - the attachment

2) Ocean Ship Supply v.Leah, 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984) - recognition offoreign liens

3) American marine insurance law - the absence of a statute

4) Understanding the Hamburg Rules as opposed to the Hague and Hague/Visby Rules

5) Understanding the redundancy of general average

6) Understanding salvage old and new


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XIII. Conclusion

XIV. Epilogue

MARITIME LAW AS A MIXED LEGAL SYSTEM(2)(with particular reference to the distinctive nature of American maritime law, which benefitsfromboth its civil and common law heritages).

Prof. William Tetley, QC

I. Preface

My first words are to say how honoured I am to be invited to speak to you at this inaugural

lecture of a series in my name. I am also very flattered that Chief Judge Morey L. Sear, RobertB. Acomb, Jr., Chairman of the Permanent Advisory Board of the Tulane Admiralty LawInstitute, and so many members of the maritime bar of New Orleans are present, along withcolleagues from the Tulane Law School, led by Dean Edward Sherman and Professor RobertForce, Director of the Tulane Admiralty Law Institute.

My connection with Tulane goes back to 1982, when I spoke at a Tulane Admiralty LawInstitute Conference in Greece, and then in 1983, I became a Visiting Professor at the invitationof Paul R. Verkuil, who was Dean at that time.

Over the years, I have learned so much from the Tulane Law School, this great law faculty, and

from the members of the Louisiana Bar, in that incomparable jurisprudential crucible called theEastern District of Louisiana. It is I who am indebted and it is my writings which reflect thesuperb civil law/common law/maritime law matrix which has developed in the Tulane LawSchool and the New Orleans Bar.

Please therefore receive my sincerest thanks.

II. Introduction

Much has been written of late of "mixed jurisdictions" and the fact that Louisiana is an excellentexample of such a jurisdiction, with its rich composite of civil and common law. Louisiana as

well is a living example of a mixed jurisdiction, having recently adopted a vibrant new civilcode.

On the other hand, most of Louisiana's public law statutes are common law in style and draftingand much of the jurisdiction, practice and procedure of the courts also follows the common lawtradition.

Thus Louisiana is a vigorous, enlightened mixed jurisdiction.
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But Louisiana has another important and distinctive asset, being the rich American maritime law,so actively practised in the Eastern District of Louisiana and the 5th Circuit. That Americanmaritime law is civilian in origin, but heavily tempered by the common law. In fact, Americanmaritime law, of all national maritime laws, best demonstrates this complete joinder of the civillaw and the common law traditions.

It is essential for students of maritime law, practising lawyers, professors, judges and (hopefully)even the public, to understand the mixed nature of American maritime law and to know whichparts are civilian and which parts are common law in origin. Only then can one understand thefull purport, for example, of the maritime attachment (see Schiffaharts. Leonhardtv.Bottacchi773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985), marine insurance (see Standard Oil Co. ofNew Jersey v. U.S. 340 U.S. 54, 1951 AMC 1 (1950)), equity (see Vaughan v.Atkinson 369 U.S.527, 1962 AMC 1131 (1962)), and American maritime liens (see Ocean Ship Supply v.Leah 729F.2d 971, 1984 AMC 2089 (4 Cir. 1984)). Many, many American decisions have taken intoaccount the civil/common law distinction, either impliedly or expressly.

It is a basic finding of this lecture that one ignores at one's peril the consequences of America'smaritime law being both civilian and common law in its source and modern composition.

III. The Plan and Purpose of this Paper

This paper will first explain how maritime law is a complete legal system, in its two majorcomponents: 1) the general maritime law; and 2) national statutes and international conventions,with the latter source predominating over the former. It will then show how the civil law (thebasic source of the general maritime law, even in England), together with the common law, bothmade major contributions to maritime law, and how the general maritime law was received intothe United States.

Contemporary American maritime law will then be examined to demonstrate how its civilianheritage continues to be operative in various aspects, including: shipowners' limitation ofliability, the attachment, proportionate fault in marine collision, the codification of maritime lienlaw, the concept of maritime liens as substantive rights, the wrongful death remedy, liens oncargo for demurrage without a contract, equity, marine insurance, general average, salvage andmaintenance and cure. The common law influences, notably ship mortgages, collision liens, theaction in rem and the "no cure/no pay" rule in salvage, will also be studied.

Finally, the importance of this mixed legal tradition from a practical standpoint will beoutlined, with particular reference to the attachment, the recognition of foreign maritime liens,marine insurance, carriage of goods by sea under the Hamburg Rules, the redundancy of generalaverage and salvage law, ancient and modern. A general conclusion will then be drawn.

Certain terms, whose discussion would only delay consideration of the principal subject of thispaper (and which I assume in any event are understood and accepted by the reader), arenevertheless defined briefly for clarity in Appendix "A". They are "civil law", "common law","mixed jurisdiction" and "mixed legal system" (see Appendix "A"). In addition, "some classicdifferences between the civil law and the common law" are summarized (see Appendix "B").


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IV. Maritime Law Is A Complete Legal System

It is essential at the outset to make a basic constatation - that maritime law is a complete legalsystem, just as the civil law and the common law are complete legal systems. Maritime lawincidentally is much older than the common law and probably contemporaneous with the advent

of the civil law.

That maritime law is a complete legal system can be readily seen from its component parts. Forcenturies maritime law has had its own law of contract - of sale (of ships), of service (towage), oflease (chartering), of carriage (carriage of goods by sea), of insurance (marine insurance, beingthe precursor of insurance ashore), of agency (ship chandlers), of pledge (bottomry andrespondentia), of hire (of masters and seamen), of compensation for sickness and personal injury(maintenance and cure) and risk distribution (general average), etc., etc. It is and has been anational and an international law (probably the first private international law). It also has had itsown public law and public international law.

Maritime law has and has had, as well, its own courts and procedures from earliest times, so thatthe Rhodian law of (c. 800 B.C) and the Byzantine Rhodian Law (c. 800 A.D.) both crossedborders and applied in the whole western commercial world. Thepied poudre ("piepowder")courts of England tried cases between merchants bringing wine and wares to and from ports ofEngland and of the Atlantic coasts of what is now Spain, France, Belgium and Holland. TheRles of Olron, written in Olron, France (near La Rochelle c. 1190), were the law in thoseseas, while the Consolato del Mare (c. 1300) was the law of the Mediterranean.

Maritime law with is broad substantive and adjectival scope, its own courts and jurisdiction andits own private and public law, is indeed a complete legal system.

V. The Two-fold Composition of Maritime Law

A second basic constatation of this paper is that maritime law, whether it be national orinternational, is composed oftwo constituent parts:

firstly - the general maritime law, that great ius commune, which has evolved from variousmaritime codes including Rhodian law (c. 800 B.C.), Roman law, the Rles of Olron (c. 1190),the Ordonnance de la Marine (1681) etc., all of which were relied on in Doctors' Commons, theEnglish Admiralty Court and the maritime courts of Europe. This lex maritima, part of the lexmercatoria, or "Law Merchant" as it was usually called in England, was the general law (iuscommune) applicable in all countries of Western Europe until the fifteenth century, when thegradual emergence of nation states caused national differences to begin creeping into what hadbeen a virtually pan-European maritime law system. That system had the immense advantage ofaverting conflict of laws problems, because uniform principles and rules were applied to resolvedisputes in all countries.

There is also a modern lex maritima. Today's general maritime law consists of the commonforms, terms, rules, standards and practices of the maritime shipping industry - standard formbills of lading, charterparties, marine insurance policies and sales contracts are good examples of


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common forms and the accepted meaning of the terms, as well as the York/Antwerp Rules ongeneral average and the Uniform Customs and Practice for Documentary Credits. Much of thiscontemporary lex maritima is to be found in the maritime arbitral awards rendered by arbitraltribunals around the world by a host of institutional and ad hoc arbitral bodies. Increasingly,arbitrators are following previous awards in applying the law to new arbitrations, thereby

contributing, consciously or unconsciously, to the emergence of a modern maritime iuscommune.

secondly - maritime statute law, whether national or international.

Thus maritime law today consists of the ever-evolving general maritime law, on one hand, andnational maritime statutes and international maritime conventions, on the other.

VI. Precedence of National Statutes and International Conventions

A third essential, basic constatation concerning maritime law is that in the case of any conflictbetween the two sources of maritime law, it is national or international law which has precedenceover the general maritime law.

The Emperor Antoninus (138-161 A.D.) said it succinctly (as recorded in the Digest ofJustinian):

"I, indeed am Lord of the world, but the law is lord of the sea. Let it be judged by Rhodian Law,concerning nautical matters, so far as no one of our laws is opposed." (emphasis added)

Thus Rome received Rhodian maritime law as its own, in so far as it did not contradict Romanlaw existing or future.

.

In the United States, the precedence of the statutory over the general maritime was stated by theSupreme Court in Panama Railroad264 U.S.375 at p. 386, 1924 AMC 551 at p. 555 (1924):

"...when the Constitution was adopted, the existing maritime law became known as the law ofthe United States 'subject to power in Congress to alter, qualify or supplement it as experienceor changing conditions might require.'

See alsoDetroit Trust Co. v. Barlum S.S. Co. 293 U.S. 21 at p. 43, 1934 AMC 1417 at 1428-29(1934); Schiffaharts Leonhardt & Co.v.A. Bottacchi 773 F.2d 1528 at pp. 1531-1532, 1986AMC 1 at pp. 5-6 (11 Cir. 1985 en banc).

In Canada, the precedence of national statutes over the general maritime law can be seen today insect. 2(1) of the Federal Court Act, R.S.C. 1985, c. F-7, which reads:


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"In this Act 'Canadian maritime law' means that law the was administered by the ExchequerCourt of Canada on its Admiralty side by virtue of the Admiralty Act... or any other statute, orthat would have been so administered if that Court had, on its Admiralty side, unlimitedjurisdiction in relation to maritime and admiralty matters, as that law has been altered by thisor any Act of the Parliament."

VII. The Civilian Origins of Maritime Law

1) Maritime law as civilian

My fourth basic constatation is that maritime law was civilian in its original source, concept, andstyle and retains much of that tradition today in both the general maritime law and in nationalstatutes and international conventions.

2) The early maritime codes

The source of the maritime law can be seen in the early maritime codes.

All the ancient sea laws were codes or "coutumes" and were civilian in concept, style anddrafting. Examples are - the Rhodian law (circa 800 B.C.); Greek law (4th century B.C.); themaritime provisions in Roman law; (the Digests of Justinian, 6th century A.D.); theByzantine/Rhodian Sea-Law (8th century A.D.); the Basilica (9th century A.D.), the Italian CityCodes of Trani (1063), Amalfi (1150) and Pisa (1160); the Ley Maryne, being the customs ofvarious cities, including Newcastle-upon-Tyne (1100-1135), Ipswich (1201) and certain Scottishcities; the Rles of Olron (1190); the Assises of the Bourgeois of the Kingdom of Jerusalem(1200); the Consolato del Mare (end of 13th century); the Laws of Visby (first printed 1505); leGuidon de la Mer(1556); l'Ordonnance de la Marine (1681): the French Code de Commerce

(1807). All of these statutes were collected and kept in "The Blacke Booke of The Admiralty"(mid 15th century ) in Doctors' Commons in London and cited in the High Court of Admiralty inLondon and elsewhere. Collected again by Sir Travers Twiss, they were published in fourvolumes in theBlack Book of the Admiralty from 1871 to 1876.

3) Early civilian concepts in the maritime law

Many modern-day principles are still found today in the general maritime law or in nationalstatutes or international conventions.

For example, Rhodian law, which was probably an unwritten lex maritima, had three of its

principles of general average, recorded in the Digest of Justinian (jettison, cutting the mast andcutting the anchor) and this is the authority today for general average, because the terms ofgeneral average are not set out in any national statute or international convention. (TheYork/Antwerp Rules are merely contactual terms of general average, which are applicable onlyby agreement of the parties, usually in a bill of lading or charterparty.)

Roman law gave us and still gives us, the bottomry bond, the shipbuilding lien, a lien for shiprepairs, a lien for supplies for the crew and a freight lien on cargo.


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The Rles of Olron gave and still gives us, amongst other things, more details on bottomry andmore liens, the principles of salvage and the rights between partners in the ownership of a ship(probably the beginnings of company law).

The Admiralty had in particular the civilian saisie conservatoire (the seizure before judgment -

the attachment) which was and is unknown in the common law.

Each code, in turn, built on its predecessor and each code itself evolved. For example, the oldestexisting copy of the Rles of Olron has 24 articles and the most recent about 35 articles. Theversion published in 30 Fed. Cas. 1171 et seq. has 47 articles. There are 30 known copies of theRles extant today - one is in Spain, France (17), Flanders (2), the Netherlands (1) and England(10)). It is the general maritime law as it has evolved over the centuries that we have today.

4) The Admiralty law of England

The Admiralty law of England, it was noted above, was received into the general maritime law

of the United States at the time of the American Revolution and was confirmed by theConstitution and a statute of the first Congress in 1789.

But what was that law?

It was the law adjudged in the Admiralty Court, (Doctors' Commons), where only Doctors ofCivil Law could plead and take part. Theirs was the law found in the Blacke Booke ofAdmiralty, as it was ruled on in subsequent recorded judgments and in the occasional lawsadopted by Parliament. There is an excellent new text of the Selden Society which has collectedand commented on those decisions (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII ofthe Selden Society, London, 1992).

Thus the general maritime law advanced and evolved in England in the civilian court based onthe early civilian admiralty codes.

VIII. The Influence of The Common Law On Maritime Law

Although Doctors' Commons was civilian in origin, structure and style, the common law hadvery considerable influence on the law of the Admiralty Court. This was because the commonlaw courts, although younger than the commercial, admiralty, probate and church courts, werevery jealous of their jurisdiction, and wished to restrict it. The courts of common law fought evenwith Chancery (the court of equity). In particular, Sir Edward Coke, the Lord Chief Justice of

Common Pleas, used his great authority and prestige to limit Admiralty jurisdiction. Hisprincipal weapon was the writ of prohibition, which took away considerable jurisdiction from theAdmiralty Court. As time passed, the Court even lost the right to issue writs of attachment. Thusmuch maritime law was practised in the common law courts by common lawyers, particulary inrespect of matters arising ashore (and not outside the sight of land), such as marine insurance,stevedoring and chartering.


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Other examples of the common law influence are the ship mortgage, the maritime tort lien, thewrit in rem and the "no cure/ no pay" principle in salvage (see infra).

IX. The Reception of the General Maritime Law into U.S. Law

1) Introduction

To recapitulate what has been established, or at least argued, above - maritime law is a completelegal system and is composed of the general maritime law, as it has been tempered from time totime by national statutes and international maritime law conventions.

2) Reception of the general maritime law

Still to be considered is how the general maritime law was received into American law.

The colonial Vice-Admiralty and maritime courts established in America brought with them the

general maritime of England (see David R. Owen and Michael C. Tolley, Courts of Admiralty inColonial America: The Maryland Experience, 1634-1776, Carolina Academic Press inassociation with the Maryland Historical Society, Durham, N. Carolina, 1995; J.C. Sweeney,"The Admiralty Law of Arthur Browne," (1995) 26 JMLC 59; Matthew P. Harrington, "TheLegacy of the Vice-Admiralty Courts" (1995) 26 JMLC 581 (Part I) and (1996) 27 JMLC 323(Part II)). The reception of that law was confirmed in Panama Railroadv.Johnson 264 U.S. 375at pp. 385-386, 1924 AMC 551 at pp. 554-555 (1924), where the U.S. Supreme Court, referringto the extension of the judicial power of federal courts to "all Cases of admiralty and maritimeJurisdiction" under art. III, sect. 2, clause 1 of the U.S. Constitution, declared:

"As there could be no cases of 'admiralty and maritime jurisdiction,' in the absence of some

maritime law under which they could arise, the provision presupposes the existence in the UnitedStates of a law of that character. Such a law or system of law existed in colonial times and duringthe Confederation, and commonly was applied in the adjudication of admiralty and maritimecases. It embodied the principles of the general maritime law, sometimes called the law ofthe sea, with modifications and supplements adjusting it to conditions and needs on this

side of the Atlantic. The framers of the Constitution were familiar with that system and

proceeded with it in mind. Their purpose was not to strike down or abrogate the system, but toplace the entire subject -- its substantive as well as its procedural features -- under nationalcontrol, because of its intimate relation to navigation and to interstate and foreign commerce. Inpursuance of that purpose the constitutional provision was framed and adopted.... After theConstitution went into effect, the substantive law theretofore in force was not regarded assuperseded or as being only the law of the several states, but as having become the law of theUnited States..." (emphasis added)

It is also noteworthy that although it was English Admiralty law which was received into theUnited States, the strictures of English Admiralty jurisdiction were soon rejected by U.S.judges, in favour of a wide interpretation of the "admiralty and maritime jurisdiction"conferred by Art. III, cl. 2 of the Constitution.


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As early as 1815, Mr. Justice Story, inDe Lovio v.Boit7 Fed. Cas. 418 at p. 442 (No. 3776)(C.C. D. Mass. 1815), rejected the "locality test" which had confined the English Court ofAdmiralty and proclaimed that U.S. Admiralty jurisdiction comprehended: "...all maritimecontracts, torts, and injuries. The latter branch is necessarily bounded by locality; the formerextends over all contracts (wheresoever they may be made or executed, or whatsoever may be

the form of the stipulations) which relate to the navigation, business or commerce of the sea...."(ibid. at p. 444). It is interesting that Story J., in reaching his historic decision inDe Lovio,examined both the jurisdiction of the colonial vice-admiralty courts and of the maritime courts ofother countries (notably those of civilian tradition).

In consequence, many contracts of truly maritime nature (e.g. charterparties, as inMorewoodv.Enequist64 U.S. (23 How.) 491 (1860), and marine insurance, as inInsurance Co. v.Dunham78 U.S. (11 Wall.) 1 (1871)), which had been removed from the High Court of Admiralty inEngland by writs of prohibition because they occurred on land, were accepted as subject toadjudication in American federal district courts in the exercise of their Admiralty jurisdiction,because of their inherently maritime character. Similarly, America quickly disregarded the

historic distinction in English Admiralty tort jurisdiction between events occurring within theebb and flow of the tide and those transpiring on the High Seas ( The Genesee Chief53 U.S. (12How.) 443 (1851)).

X. Classic Civil Law Principles Found in American Maritime Law

Many classic principles, rules and concepts derived from the historic lex maritima of ContinentalEurope, and therefore of essentially civilian character, continue to be fundamental elements ofAmerican maritime law. It is instructive to review some of them.

1) Shipowner's limitation of liability and abandonment

The American law of limitation of shipowners' liability of 1851, found in 46 U.S. Code Appx.183(a), requires the calculation of the limitation to be based upon the value of the ship andpending freight after the casualty concerned (seeNorwich & New York Transportation Co. v.Wright80 U.S. (13 Wall.) 104 (1871)), rather than on the tonnage of the vessel as establishedbefore the mishap, which is the normal method of calculation today under the LimitationConventions of 1957 and 1976, now in force in most other nations, and which was pioneered inEngland in the nineteenth century (Merchant Shipping Act Amendment Act, 1862, 25 & 26 Vict.,c. 63, sect. 54, later consolidated as part of theMerchant Shipping Act, 1894, 57 & 58 Vict., c.60, sect. 503). The only tonnage limitation known in the U.S. is the limitation of US $420 per tonin the event of personal injury and death claims. This limitation dates from 1935, when it wasfirst established at US $60 per ton, and raised to its present level only in 1984 (46 U.S. Codeappx. sect. 183(b)).

The American system of limitation may be traced back to the traditional Europeanabandonment system of shipowners' limitation, found in the Ordonnance de la Marine of 1681and later in France's Code de Commerce of 1807 (art. 216, now repealed), under which ownerscould restrict their responsibility for collisions, groundings, and other maritime claims byrelinquishing their vessel and its earned freight to the claimants.


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Another civilian feature of U.S. limitation law is that only shipowners and demise (bareboat)charterershave the right to limit their liability, whereas the 1957 Limitation Conventionextends that right to all charterers, as well as to managers, operators, masters and crew (art. 6(2)),and the 1976 Convention further extends the right to salvors and insurers (art. 1(1), (3)and (6)).

The 1851 Act has resulted in some interesting conflict of laws decisions where the American lawhas clashed with the more modern tonnage-based limitation systems of the U.K., Canada or othercountries (see, for example, The Titanic 233 U.S. 718 (1914); The Norwalk Victory 336 U.S.386, 1949 AMC 393 (1949);Bethlehem Steel Lim. Procs. 435 F. Supp. 944, 1977 AMC 2203(N.D. Ohio 1976), aff'd 631 F.2d 441, 1980 AMC 2122 (6 Cir. 1980), cert. denied 450 U.S. 921,1981 AMC 2099 (1981); The Arctic Explorer590 F. Supp. 1346, 1984 AMC 2413 (S.D. Tex.1984)).

2) The attachment

Because the Thirteen Colonies left the British Empire in the period 1776-83, at a time when the

Admiralty attachment was still extant (albeit moribund) in England, that pre-judgment proceduredid not die out by non-user in the United States as it supposedly did in the U.K.(see W. Tetley,Maritime Liens and Claims, 2 Ed., 1998 at pp. 975-977, arguing that the Admiralty attachmentmay, in fact, still exist in England). Today, the maritime attachment is very much alive and wellin America. It has been codified in Supplemental Rule B of the Federal Rules of Civil Procedure.Nevertheless, as the Eleventh Circuit en banc stressed in Schiffaharts. Leonhardtv.A. Bottacchi773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc 1985), the attachment, which existed as part of thegeneral maritime law during the colonial period and at the time of the adoption of the U.S.Constitution in 1789, may be invoked and employed apart from, and in addition to, the present-day Rule B process (see ibid., F.2d at p. 1533, AMC at p. 9: "...we find that the court had theauthority, under its inherent power to apply traditional maritime law, to issue the writ of

attachment; it need not have relied on any grant of authority under Rule B(1)." (emphasisadded)

In its decision, the Eleventh Circuit recalled how the U.S. Supreme Court, in Manro v.Almeida23 U.S. 473 (1825), hadaffirmed that the attachment was available in the U.S., largely because of the provisions of thefirst and second Process Acts, adopted by the first Congress in 1789 and 1792.

The first Process Act(An Act to regulate Processes in the Courts of the United States, Act ofSept. 29, 1789, 1789, Statute 1, c. 21) required by its sect. 2 that: "...the forms and modes ofproceedings in causes of equity, and of admiralty and maritime jurisdiction, (a) shall beaccording to the course of the civil law".

The second Process Act(An Act for regulating Processes in the Courts of the United States andproviding Compensations for the Officers of the said Courts, and for Jurors and Witnesses, Actof May 8, 1792, Statute 1, c. 36) required at its sect. 2: "That the forms, executions and otherprocesses...shall be the same as are now used in the said courts... in those of equity and in thoseof admiralty and maritime jurisdiction, according to the principles, rules and usages which


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belong to courts of equity and to courts of admiralty respectively as contra-distinguished fromcourts of common law."

CitingManro v.Almeida, the Eleventh Circuit held:

"Upon the whole, we are of opinion, that for a maritime trespass, even though it savors of piracy,the person injured may have his action in personam, and compel appearance by the process ofattachment on the goods of the trespasser, according to the forms of the civil law, as engraftedupon the admiralty practice. And we think it indispensable to the purposes of justice, and the dueexercise of the admiralty jurisdiction, that the remedy should be applied, even in cases where thesame goods may have been attachable under the process of foreign attachment issuing from thecommon-law courts."

(Manro v.Almeida 23 U.S. 473 at pp. 495-496 (1825), cited in Schiffaharts. Leonhardt & Co. v.A. Bottacchi 773 F.2d 1528 at pp. 1532-1533, 1986 AMC 1 at pp. 7-8 (11 Cir. en banc 1985))

3) Proportionate fault

The civil law, since at least the nineteenth century, has applied the principle of division ofdamages according to the degree ofcomparative (proportionate) fault in delictual cases wherethe plaintiff's acts or omissions have partly caused the loss or damage sustained by him (see, forexample, the French Civil Code of 1804, arts. 1382 and 1383). The common law, however, forcenturies applied the "contributory negligence bar" (inherited from Roman law), whichprecluded a plaintiff even slightly at fault from recovering from a defendant, even where thelatter's degree of blameworthiness was far greater (seeButterfieldv. Forrester(1809) 11 East 60,

103 E.R. 926 (K.B.)). In England, the contributory negligence bar was only repealed by statute atthe end of World War II, when Parliament enacted theLaw Reform (Contributory Negligence)Act, 1945, 8 & 9 Geo. VI, c. 28. In the U.S., contributory negligence as a complete defence wasrepealed slowly and piecemeal by various state and federal laws.

Maritime law, for its part, attenuated the rigours of the contributory negligence bar by providinga rule of equally divided damages in ship collisions. This rule itself may be traced back to theLaws of Visby, the Consolato del Mare and the Ordonnance de la Marine, and was adopted bythe High Court of Admiralty in England at least by 1815 (see Lord Stowell's decision in TheWoodrup Sims (1815) 2 Dods. 83, 165 E.R. 1422) and in the United States at least by 1855 (seeThe Catharine v.Dickinson 58 U.S. (17 How.) 170 (1855)).

Eventually, the Collision Convention 1910, adopted by the largely-civilian countries belongingto the Comit maritime international (CMI), enshrined the civil law rule of proportionate fault inmarine collisions in respect of damage to ship, cargo and even with respect to third parties, withequally divided damages recoverable only where the degrees of fault were equal orunascertainable (art. 4). The United Kingdom adopted proportionate fault in itsMaritimeConventions Act, 1911, 1 & 2 Geo. V., c. 57, in respect of damages to ship and cargo only, as did


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other common law countries (e.g. Canada, by itsMaritime Conventions Act, 1914, 4-5 Geo. V, c.13).

The United States, however, which never became party to the Collision Convention 1910, clungto the historic Admiralty rule of divided damages until 1975, when the U.S. Supreme Court, in

United States v.Reliable Transfer Co. 421 U.S. 397, 1975 AMC 541 (1975), on grounds ofequity and having regard to the desirability of international legal harmonization, finallyembraced proportionate fault as the proper apportionment mechanism for "both-to-blame"collisions in respect of damage to ships.

Reliable Transfer, however, did not impose proportionate fault on cargo, so that under U.S. laweven today, cargo may recover 100% of its loss from the non-carrying vessel, even if thatvessel is at fault to only a partial degree. While out of step with the rest of the world, whichgenerally follows the 1910 Convention in applying proportionate fault to cargo, the Americanrule, dating back to the U.S. Supreme Court's decision in The Atlas 93 U.S. 302 (1876), isarguably more equitable (and thus more in keeping with the general maritime law tradition),

because it permits innocent cargo owners to recoup their losses fully from the colliding vessel.This is an especially valuable right, because in carriage of goods cases subject to theHague/Visby Rules or to U.S. COGSA 1936, cargo can recover nothing from the carrying ship ifthe carrier establishes one of the defences of arts. 4(2)(a) to (q).

Also noteworthy is that the United States eliminated the common law contributory negligencebar in maritime torts other than ship collisions as early as 1890 (see The Max Morris 137 U.S. 1(1890)), replacing it with the then applicable divided damages rule governing collisions. In duecourse, proportionate fault was introduced by statute in personal injury cases. By comparison,Canada floundered in uncertainty as to whether the bar still obtained in one-ship torts underCanadian maritime law, until the Supreme Court of Canada finally eliminated it in favour of

comparative fault inBow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd. [1997] 3S.C.R. 1210, but only in 1997!

4) The codification of maritime lien law

The civilian heritage of American maritime law may also be seen in the drafting of U.S.legislation (46 U.S. Code, Chap. 313) governing maritime liens and ship mortgages, nowgenerally known as the "Commercial Instruments and Maritime Liens Act" or the "MaritimeCommercial Instruments and Liens Act" (46 U.S. Code 30101, 31301-31309, 31321-31330,31341-31343, approved November 23, 1988 and in force January 1, 1989, and also sometimesreferred to under older names, such as the "Federal Maritime Liens Act" or the "Ship MortgageAct of 1920 as amended").

Corresponding statutes in other common law countries, such as the United Kingdom and Canada,do not specify what types of maritime claims give rise to maritime liens. They merely list thevarious maritime claims over which the Admiralty Court hasjurisdiction (see Supreme CourtAct 1981, U.K. 1981, c. 54, sect. 20(2)(a) to (s) and Federal Court Act, R.S.C. 1985, c. F-7, sect.22(2)(a) to (s)). Nor do those statutes mention any order ofranking of the various maritimeclaims falling within Admiralty jurisdiction.


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By comparison, the United States statute defines the different types of claims which constitute"necessaries" and "preferred maritime liens" (46 U.S. Code sect. 31301(4) and (5)) and declaresexpressly that providing "necessaries" to a ship gives rise to a maritime lien enforceable by acivil action in rem (46 U.S. Code sect. 31342(a)). In addition, the ranking of both preferred andcontract maritime liens and ship mortgages is provided for at sect. 31326. American therefore

has a virtual codification of its maritime lien law (although the statute does not define the term"maritime lien"). This codification closely resembles that of civilian jurisdictions such as France,which, by its Law no. 67-5 of January 3, 1967 (J.O. January 4, 1967, p. 106), also statesexpressly what claims give rise to maritime privileges (art. 31) and provides an order of ranking(arts. 32, 33, 37 and 38).

5) Maritime liens are rights

It is not surprising that maritime liens, codified in the U.S. legislation as they are in civiliancountries such as France, are regarded as substantive rights in American maritime law.

In the United Kingdom and many British Commonwealth countries, a very differentunderstanding prevails. There, the right exists only because the court hasjurisdiction over theclaim. This view, reflected in the mode of drafting of the applicable statutes, is very deep-seated,harkening back to the long centuries of conflict between the Admiralty and common law courtsin England and the historic common law preoccupation with forms of action. Neither civiliancountries nor America experienced those conflicts or that fixation.

In consequence, one does not look to the statute to find what maritime liens are recognized in theU.K. or Canada, as one does in the U.S. Rather, one must look primarily to the case law of theold High Court of Admiralty and its successors to ascertain the six traditional maritime liensrecognized in those jurisdictions (seamen's and masters' wages, masters' disbursements, salvage,

damage, bottomry and respondentia).

Moreover, the U.S. is very civilian in conferring full maritime lien status on many claims whichin British Commonwealth countries are secured by only a statutory right in rem (notably, claimsfor necessaries, general average contributions, and contract maritime liens for cargo damage andbreach of charterparty).

6) Wrongful death

In 1970, the United States Supreme Court recognized the existence in the general maritime lawof a remedy for wrongful death inMoragne v. States Marine Lines, Inc. 398 U.S. 375, 1970AMC 967 (1970). Justice Harlan made the following perceptive comment in rendering judgment:

"Maritime law had always, in this country as in England, been a thing apart from the commonlaw. It was, to a large extent, administered by different courts; it owed a much greater debt to thecivil law; and, from its focus on a particular subject matter, it developed general principlesunknown to the common law. These principles included a special solicitude for the welfare ofthose men who undertook to venture upon hazardous and unpredictable sea voyages." (398 U.S.at pp. 386-387, 1970 AMC at pp. 976-977.


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The United States Supreme Court, in Yamaha Motor Corp., U.S.a. v. Calhoun 116 S.Ct. 619,1996 AMC 305 (1996), has more recently held that the general maritime law remedy forwrongful death granted byMoragne did not preclude non-seafarers (i.e. persons other thanseamen and longshoremen) from recovering damages for wrongful death occurring in stateterritorial waters under the wrongful death statute of the U.S. state concerned. Such decedents

(e.g. recreational boaters and jet-skiers) would also enjoy the general maritime law wrongfuldeath remedy granted to seamen. The ancient right is thus being extended to cover newsituations.

7) Liens on cargo for demurrage without contract

Traditional English common law and Admiralty law granted the carrier a possessory lien oncargo for freight (i.e. a right to retain the cargo on which freight was payable at delivery as longas it remained in the carrier's possession, until the freight owing upon it was paid in full). Thecarrier's lien was limited to freight, however, and did not extend to other claims, such asdemurrage, unless the charterparty or bill of lading expressly conferred such a lien on the carrier.

(Demurrage is really liquidated damages payable for delay in loading or discharging cargobeyond the "laytime" allowed for these operations under the charterparty.)

Civilian maritime law, on the other hand, did not require the carrier's right of retention of cargofor unpaid demurrage to be expressly granted by contract, but recognized its existence as part ofthe general maritime law. It was the civilian rule that was accepted in the United States. LowellD.J. in The Hyperion's Cargo 12 Fed. Cas. 1138 (No. 6987) (D. Mass. 1871), aff'd sub nom.Donaldson v.McDowell 7 Fed. Cas. 887 (No. 3985) (D. Mass. 1873), after reviewing the Frenchcommercial code and referring to the writings of civilian authors including Valin and Pardessus,and also taking note of the Rles of Olron, concluded:

"My own conviction is that the privilege of the ship-owner in the admiralty is not limited by themaster's lien at common law, but depends on the law- merchant, and that by the law-merchantthe privilege extends to all charges, damages and expenses arising out of the affreightment." (12Fed. Cas. at p. 1139).

The general maritime law rule on this matter was codified at sect. 25 of the Pomerene Actof1916 (formerly 49 U.S. Code sect. 105), recodified in 1994 as the U.S. Bills of Lading Act(49U.S. Code sect. 80101 et seq.). Sect. 80109 now provides in pertinent part:

"Liens under negotiable bills"A common carrier issuing a negotiable bill of lading has a lien on the goods covered by the billfor --(1) charges for storage, transportation, and delivery (including demurrage and terminal charges),and expenses necessary to preserve the goods or incidental to transporting the goods after thedate of the bill; ..."

The U.S. carrier is thus protected as regards all costs of the shipment, even if the contract ofcarriage is silent, although in practice American bills of lading and charterparties usually providefor the carrier's lien to encompass all such expenses.


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Also, the carrier in the U.S. may enforce his lien for freight by in rem proceedings, a right notavailable in British Commonwealth jurisdictions such as the U.K. and Canada, where only thecarrier's cargo lien is purely possessory. Again, American maritime law resembles the law ofFrance, where the master (as representative of the carrier) enjoys a privilege on cargo for freightfor fifteen days after delivery (Law of June 18, 1966, art. 23), which privilege is enforceable at

law (Decree of December 31, 1966, art. 53).

A similar possessory lien for charter hire exists under the general maritime law of the UnitedStates, which, in the words of Justice Clifford in The Bird of Paradise: "...arises from the usagesof commerce, independently of the agreement of the parties, and not from any statutoryregulations." (72 U.S. (6 Wall.) 545 at p. 555 (1866)). No such lien exists without a contractualstipulation in the U.K. or Canada, however, but a corresponding privilege is recognized in France(Law no. 66-420 of June 18, 1966, art. 2), which privilege is also enforceable by civil action(Decree no. 66-1078 of December 31, 1966, art. 3).

8) Equity

One of the clearest traces of the general maritime law in the United States is the use of equity,understood, not as the body of law administered in England by the Court of Chancery, but ratherin the civilian sense of a general principle of fairness. As early as 1836, the Circuit Court for theDistrict of Massachusetts declared inBrown v.Lull 4 Fed Cas. 407 at p. 409 (No. 2018): "Courtsof admiralty... act upon the enlarged and liberal jurisprudence of courts of equity; and, in short,so far as their powers extend, they act as courts of equity." The U.S. Supreme Court echoed thosesentiments in 1950 in Swiftv. Compania Colombiana del Caribe 339 U.S. 684 at pp. 691-692,1950 AMC 1089 at p. 1095 (1950): "We find no restriction upon admiralty by chancery sounrelenting as to bar the grant of any equitable relief even when that relief is subsidiary to issueswholly within admiralty jurisdiction." The Supreme Court reiterated the point affirmatively in

1962 in Vaughan v.Atkinson 369 U.S. 527 at p. 530, 1962 AMC 1131 at p. 1133 (1962), when itheld that equity is :"...no stranger in admiralty; admiralty courts are, indeed, authorized to grantequitable relief."

Consistent with these statements, American maritime decisions applying equity can be found in adazzling array of marine cases. Examples include: 1) the awarding of attorney's fees as a sanctionfor callousness by an employer in withholding maintenance and cure from a seaman (Vaughan v.Atkinson, ibid.); 2) ordering the payment of wharfage expenses as expenses in custodia legiswhere such a payment inured to the common benefit of the mass of the creditors (The Poznan274 U.S. 117 at p. 121, 1927 AMC 723 at pp. 725-726 (1927)); 3) granting an "equitable lien" toa person who had advanced money to repair a ship when he expected to form a company tooperate the ship with the owner (The Zizania 1934 AMC 770 at pp. 774-775 (D. Mass. 1934)); 4)permitting the U.S. Government to claim against the judicial sale proceeds of a ship for damageto navigational aids (United States v.Maryland Casualty Co. 235 F.2d 50 at p. 54, 1956 AMC1822 at p 1826 (5 Cir. 1956); and 5) altering the normal rules of ranking where equitableconsiderations warrant doing so (see Payne v. S.S. Tropic Breeze 423 F.2d 236 at p. 239, 1970AMC 1850 at p. 1855 (1 Cir. 1970);Ramsay Scarlettv. Koh Eun 462 F. Supp. 277 at p. 288,1979 AMC 970 at p. 984 (E.D Va. 1978)).


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The use ofmarshalling in the ranking of maritime claims and the application of the doctrine oflaches in respect of maritime liens are further examples of how equity continues to play asignificant role in American Admiralty jurisprudence (See W. Tetley,Maritime Liens & Claims,2 Ed., Blais, Montreal, 1998 at pp. 857-858 (marshalling) and 863-868 (laches); see also ibid.generally at pp. 859-863 (re equity generally in U.S. Admiralty).

9) Marine insurance

Marine insurance is of European Continental origin, having been developed by Lombardmerchants in northern Italy in the twelfth century, from which it was imported into England andthe cities of the Hanseatic League as early as the mid-thirteenth century (Alex L. Parks, The Lawand Practice of Marine Insurance and Average, vol. 1, Cornell Maritime Press, 1987 at pp. 4-8).It usages came to be codified in various ordinances and early codes (see, for example, theOrdinances of Barcelona (1434, 1458, 1461 and 1484); Florence (1523), Burgos (1538), Bilbao(1560), Middleburg (1600), Rotterdam (1604, 1635 and 1655); the Guidon de la Mer(Rouen,1556-1584), the Us et Coutumes de la Merby Cleirac (1656) and the Ordonnance de la Marine

(1681)).

In England, Lord Mansfield, Chief Justice of King's Bench from 1756 to 1788, that greatarchitect of English commercial law, frequently referred to Continental ordinances and codes tofind legal principles applicable to marine insurance. Moreover, the lex mercatoria has beenpreserved by legislation in theMarine Insurance Act, 1906(6 Edw. VI, c. 41), the mother of allmarine insurance statutes, where sect. 91(2) provides: "The rules of the common law includingthe law merchant, save in so far as they are inconsistent with the express provisions of the Act,shall continue to apply to contracts of marine insurance." (see also Canada'sMarine InsuranceAct, S.C. 1993, c. 22, sect. 90, referring to "usages of the trade").

10) General average

General average is perhaps the oldest principle in maritime law, being a lex maritima conceptfound in the Rhodian Law of c. 800 B.C., of which a few fragments were preserved in Justinian'sDigest (Book XIV, Title 2,De Lege Rhodia de Jactu) some 1300 years later; Abbott, C.J. inSimonds v. White 2 B. & C. 805 at p. 811, 107 E.R. 582 at p. 584 (1824) observed: "Theprinciple of general average... is of very ancient date and of universal reception amongcommercial nations. The obligation to contribute, therefore, depends not so much upon the termsof any particular instrument as upon a general rule of maritime law." It may be found in the oldEuropean sea codes, notably in the Rles of Olron (art. IX).

In the United States, general average was recognized from the earliest part of the nineteenthcentury and its origin in the ancient (civilian) law of the sea was acknowledged (Case v.Reilley5 Fed. Cas. 332 (No. 2538) (Cr. Ct. D. Pa. 1814) (where Valin's commentaries on theOrdonnance de la Marine of 1681 are referred to, together with the writings of Bynkershoek andother continental jurists); Columbian Insurance Co. v.Ashby and Stribling 38 U.S. (13 Peters331 (1839) (where Justice Story gave considerable attention to the Pandects of Justinian) ; U.S.v. Wilder28 Fed. Cas. 601 (No. 16, 694) (D. Mass. 1838)Dupontv. Vance 60 U.S. (19 How.)162 at pp. 169-170 (1856) (where Pothier and Emerigon are relied upon).


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Today, general average is usually subject to the York/Antwerp Rules, first adopted as theGlasgow Resolution in 1860, and last amended by the Comit maritime international (CMI) atSydney, Australia in 1994. The Rules, however, are purely an agreement of merchants (anexample of what might be termed a "modern lex mercatoria") which apply solely because theyare incorporated by reference in bills of lading and charterparties.

Many today question whether general average should be abolished, in view of the manyproblems to which its application can give rise, and particularly because it seems increasinglyunnecessary and outmoded as marine insurance becomes more extensive. Because generalaverage is so deeply-engrained a part of the maritime law of so many countries, however, onemust remember that merely repealing the York/Antwerp Rules will not eliminate generalaverage. That could be done only by way of an international convention and national laws.

American maritime law of general average, because of its civilian heritage, provides cargo with apreferred maritime lien for general average contributions (Commercial Instruments and MaritimeLiens Act, 46 U.S. Code sect. 31301(5)(E)). This is similar to French law, which confers a

privilege for general average contributions payable by the ship (see French Law no. 67-5 ofJanuary 3, 1967, art. 31(4)).

By comparison, the U.K. grants only a possessory lien and a statutory right in rem for suchclaims under jurisdictional provisions (Supreme Court Act 1981, U.K. 1981, c. 54, sect. 20(2)(q)and 21(4)). Canadian maritime law, for its part, provides a "quasi maritime lien" for generalaverage, inasmuch the claim follows the ship but ranks after, rather than before, ship mortgages(see Federal Court Act, R.S.C. 1985, c. F-7, sect. 22(2)(q) and 43(3); W. Tetley,Maritime Liensand Claims, 2 Ed., 1998 at pp. 451-452).

11) Salvage

The European maritime law of "assistance" is arguably attributable to the civilian concept ofnegotiorum gestio, or management of the affairs of another, whereby a party who voluntarilycomes to the aid of another, without any contract being concluded between them, is entitled toclaim expenses he incurs in rendering the assistance, even if his intervention provesunsuccessful.

The common law, on the contrary, provided no compensation for lending a helping hand.Nevertheless, by virtue the "Good Samaritan doctrine", a volunteer coming to the aid ofanother was relieved of liability for harm caused through his fault or negligence to the partyassisted, as long as the helper did not act recklessly or rashly.

English Admiralty law took a position different from both the civil and the common law inrespect of salvage. The Admiralty Court granted salvage remuneration only where the salvor'svoluntary efforts to salve the ship and/or cargo in danger were successful. This rule wasincorporated into American maritime law from the outset, as is evident from Chief JusticeMarshall's 1804 decision inMason v. The Blaireau 6 U.S. (2 Cranch) 240 at p. 266 (1804). Itwas also enshrined in the Salvage Convention 1910 (to which the U.S. did become party), which,although it referred to both salvage and assistance (art. 1), in effect plumped for the English rule


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in providing that no remuneration was due if the services rendered had no "beneficial result" (art.2).

The 1989 Salvage Convention successfully joins the common law "no cure/no pay" principlewith the civilian principle ofassistance, in respect of pollution damage. While art. 12(1) and (2)

still requires a "useful result" as the basic condition of payment of a salvage reward, art. 14 on"special compensation" permits a salvor to recover 130%, or in some cases even 200%, of hisexpenses reasonably incurred in salving a vessel which, by itself or its cargo, threatened todamage the environment, even if he fails to salve any part of the ship and cargo . The salvageoperations must, however, have "prevented or minimized damage to the environment" (art.14(2)). The U.K., Canada and the U.S. are now party to the Salvage Convention 1989, so thatthere is (perhaps) the beginning of a modern ius commune in this area, which, as regards salvageof polluting vessels, combines common law "no cure/no pay" with civilian assistance.

Moreover, virtually all jurisdictions grant a maritime lien for salvage. The lien is also recognizedat art. 20 of the 1989 Convention, so that there is now a distinctly international maritime law in

this important domain. In the United States, the lien has long been recognized (see, for example,The Sabine 101 U.s. 384 (1879)).

Once again, however, true to its civilian Admiralty heritage, the United States codifies that lienin the Commercial Instruments and Maritime Liens Act(46 U.S. Code sect. 31301(5)(F),conferring "preferred maritime lien" status on claims for salvage, including contract salvage), asdoes France in its Law no. 67-5 of January 3, 1967, at art. 31(4). The United Kingdom andCommonwealth countries, on the other hand, lacking a codified lien law, must rely onjurisdictional rules (see Supreme Court Act 1981, U.K. 1981, c. 54, sect. 20(2)(j) and 21(3);Federal Court Act, R.S.C. 1985, c. F-7, sect. 22(2)(j) and 43(2)), coupled with judicialprecedents, as sources of their salvage lien.

12) Maintenance and cure

Maintenance and cure, being the right of seamen who sustain illness or injury in the service oftheir ship to be cared for at the expense of the shipowner for a reasonable time until maximumpossible cure is effected, is among the oldest principles of the general maritime law. It wasintroduced into the old European sea codes to encourage seamen to participate in defending thevessel and cargo against piracy (see John W. Sims, "the American Law of Maritime PersonalInjury and Death: An Historical Review (1981) 55 Tul. L. Rev. 973; John B. Shields, "Seamen'sRights to Recover Maintenance and Cure Benefits" (1981) 55 Tul. L. Rev. 1046; Rles ofOlron, arts. VI and VI, as reproduced in 30 Fed. Cas. 1171 at p. 1174; Laws of Visby, arts.XVIII and XIV, reproduced in 30 Fed. Cas. 1189 at p. 1191; Laws of the Hanse Towns (c. 1597),arts. XXXV and XLV, reproduced in 30 Fed. Cas. 1197 at pp. 1199-1200).

The right to maintenance and cure was recognized by the U.S. Supreme Court in The Osceola189 U.S. 158 (1903) and is considered an implied term of the seaman's employment contract(Evans v.Blidberg Rothchild Co. 382 F.2d 637 at p. 639 (4 Cir. 1967). The right is also securedby the preferred maritime lien for seamen's wages under 46 U.S. Code sect. 31301(5)(D), thusoutranking ship mortgages (46 U.S. Code sect. 31326(b)(1)).


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Other countries also confer maintenance and cure rights, but frequently these rights arecircumscribed by specific statutory rules which have departed from the general maritime law.The U.K'sMerchant Shipping Act 1995, U.K. 1995, c. 21, for example, makes no mention of alien for maintenance and cure. Moreover, as the United States Supreme Court noted inLauritzenv.Larsen 345 U.S. 571 at p. 575, 1953 AMC 1210 at pp. 1213-1214 (1953), "...while we [the

United States] limit this [maintenance and cure] to the period within which maximum possiblecure can be effected,... the Danish law, limits it to a fixed period of twelve weeks, and themonetary measurement is different." The Court also noted that disability benefits in Denmarkwere provided for by statutes comparable to U.S. workmen's compensation legislation, whereasin the U.S. disability compensation, in sums generally exceeding the government benefitsavailable in Denmark, could be recovered by litigation, but only if the claimant could prove faultor negligence on the part of the shipowner (Ibid., U.S. at p. 576, AMC at p. 1214).

XI. Classic Common Law Principles Found in American Maritime Law

Despite the essentially civilian origin of the general maritime law, and therefore of American

maritime law, the immensely important contributions of the common law to maritime lawcannot be ignored or minimized. The United States has preserved these contributions in itsAdmiralty law, together with those inherited from the civilian sources, and they are readilyapparent.

1) The ship mortgage

Although the general maritime law included bottomry (the pledging of the ship-- literally thevessel's "bottom" -- as security for a loan) and respondentia (pledging the cargo as security for aloan), both bottomry and respondentia became impractical with the advent of steel ships in thenineteenth century and the needs for large amounts of capital to operate merchant vessels and

fleets. Improvements in ship-to-shore communication (e.g. wireless and later marine radiotechnology) and the growth of international banking facilities also made it less necessary formasters to enter into "bottomry bonds" in foreign ports to procure funds needed to purchasesupplies or repairs required to complete the voyage. Instead, advances could be obtained morequickly and easily by contacting the shipowner and arranging credit through banks or ships'agents in virtually any part of the world. Moreover, creditors became less and less willing to risklarge sums on bottomry, because bottomry claims literally sank with the ship.

The common law filled the gap nicely with the ship mortgage, an adaptation of the common lawland mortgage to shipping. The ship mortgage permitted the vessel to become security for a loanwithout the attendant risk of loss of the security should the vessel perish. England recognized theship mortgage early in the nineteenth century (The Portsea (1827) 2 Hagg. 84, 166 E.R. 175; TheExmouth (1828) 2 Hagg. 88n, 166 E.R. 176; R. Temperley, The Merchant Shipping Acts, 7 Ed.,1976 at para. 59), and the Admiralty Court acquired concurrent jurisdiction over such mortgageswith the common law courts by theAdmiralty Court Acts of 1840 (3 & 4 Vict., c. 65, sect. 3) and1861 (24 & 25 Vict., c. 10, sects. 11 and 35).

The civil law, for its part, could not conceive of the hypothecation of a movable such as a ship(see French Code de Commerce of 1807, art. 190, whereby ships were categorized as movables),


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because hypothecation was traditionally restricted to immovables (i.e., lands and buildings). The civil law hypothque also differed considerably from the common law mortgage,particularly in that it conferred on the hypothecary creditor no immediate right to possession ofthe property, but only a right against the proceeds of sale of the property after enforcementof the right in judicial proceedings.

The common law mortgage, on the other hand, gives an immediate right of property, if notownership, to the mortgagee, who can take possession of the property by a simple notice,without the necessity of taking suit, as well as a right of foreclosure at law.

The ship mortgage (or "maritime hypothec") was finally accepted by civilian countries in thelatter half of the nineteenth century, when Portugal in 1833, followed by Prussia in 1861, Francein 1874 and Spain in 1893, introduced the maritime hypothec into their respective commercialcodes (W. Tetley,Maritime Liens and Claims, 2 Ed., 1998 at p. 474; see also the modern Frenchmaritime hypothec, provided for in Law no. 67-5 of January 3, 1967 at arts. 43-57 and Decreeno. 67-967 of October 27, 1967 at arts. 13-25). The ship mortgage and maritime hypothec were

both recognized and assigned a definite ranking among maritime claims in the Mortgages andLiens Convention 1926 (arts. 2 and 3), and in the Mortgages and Liens Conventions 1967 and1993 (arts. 1, 2 and 5).

In the United States, ship mortgages (as in England prior to 1840) were originally held not to fallwithin Admiralty jurisdiction (Bogartv. The John Jay 58 U.S. (17 How.) 399 (1854)), and themortgagee's claim ranked after all maritime claims in the distribution of judicial sale proceeds,making the ship mortgage less than viable as a form of maritime security (The Hendrik Hudson11 Fed. Cas. 1087 (No. 6385) (N.D. N.Y. 1855); The Lottawanna 88 U.S. (21 Wall.) 558 (1874);The J.E. Rumbell 148 U.S. 1 (1893)).

The ship mortgage was, however, transformed by the Ship Mortgage Actof 1920 (Act of June 5,1920, known as theMerchant Marine Act, c. 250, 41 Stat. 1000, 46 U.S. Code Appx, formerchapter 25, former sect. 911-984), which codified the formalities, recognition and ranking of"preferred mortgages" in American maritime law. TheActwas extended in 1954 to apply toforeign ship mortgages validly executed and recorded under applicable foreign laws. (Act ofJune 29, 1954, c. 419, 68 Stat. 323, 46 U.S. Code Appx., former sect. 951, second para.).

Today, preferred ship mortgages, domestic and foreign, are regulated by the CommercialInstruments and Maritime Liens Actof 1988, 46 U.S. Code, especially at sects. 31321-31330).As in other jurisdictions, the ship mortgagee enjoys a relatively high ranking, his "preferredmortgage lien" (codified by 46 U.S. Code sect. 31325) taking priority over all claims against thevessel, except for expenses and fees allowed by the court, court costs and "preferred maritimeliens" (46 US. Code sect. 31326(b)(1)).

Modern U.S. ship mortgage law thus helps make America a major centre of international shipfinance.

2) The collision lien


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A second major contribution of the common law to Admiralty law is the tort lien. A maritimelien was recognized as arising from collision damage done by a ship, at least by the time Sir JohnJervis decided The Bold Buccleugh in 1851 ((1851) 7 Moo. P.C. 267, 13 E.R. 884 (P.C.); seealso Gorrell Barnes J. in The Ripon City [1897] P. 2226 at p. 242, who referred to a maritime lienarising out of service done to a ship or "injury caused by it"). The Admiralty Court's jurisdiction

was extended to damages done by a ship by theAdmiralty Court Acts of 1840 (3 & 4 Vict. c. 65,sect. 6) and 1861 24 & 25 Vict., c. 10, sects. 7 and 35). Not only property damage, but bodilyinjury claims as well were covered by the jurisdiction and the lien (see The Sylph (1867) L.R. 2A. & E. 24). The lien has proven especially beneficial in the twentieth century in cases of marinepollution (see The Eschersheim [1976] 1 Lloyd's Rep. 81 (C.A.), upheld [1976] 2 Lloyd's Rep. 1(H.L.)).

Traditional civil law, however, could not accept the concept of a privilege arising out ofdelict,because civilian privileges were purely contractual in nature (see the Ordonnance de la Marine,1681 and the Code de Commerce of 1807, neither of which contemplated a delictual privilege).The frequency of marine collisions and allisions, however, made the English tort lien an

attractive aspect of the common law, which civilians eventually realized to be a useful additionto their own maritime law, because it gave the injured party a recourse against the ship itself(Rodire,Le navire, Dalloz, Paris, 1980 at para. 146 saw the incorporation of the common lawmaritime tort lien into the Mortgages and Liens Convention 1926 as a welcome addition). Francefirst enacted a maritime privilege for damage in 1949 (Law no. 49-226 of February 19, 1949,J.O., February 20, 1949 at p. 1890) and has retained that right under its present Law. no. 67-5 ofJanuary 3, 1967 at art. 31(5)).

The Maritime Liens and Mortgages Convention 1926 (art. 2(4)) granted maritime liens for bothpersonal injury and material damages done by ships, which liens are also recognized in the 1967Convention (art. 4(1)(iii) and (iv)) and the 1993 Convention (art. 4(1)(b) and (e)).

The United States had no difficulty with the maritime tort lien, because it fit so neatly into the"personification theory" of maritime liens which has always flourished in America (W. Tetley,Maritime Liens and claims, 2 Ed., 1998 at p. 53 and authorities cited there). As Gray J. held inThe John G. Stevens (170 U.S. 113 at p. 120 (1898):

"The foundation of the rule that collision gives to the party injured ajusin re in the offendingship is the principle of the maritime law that the ship, by whomsoever owned or navigated, isconsidered as herself the wrongdoer, liable for the tort, and subject to a maritime lien for thedamages. This principle,...has been more clearly established, and more fully carried out, in thiscountry than in England."

The U.S. early on abandoned the distinction between torts arising on the High Seas and thosearising within the ebb and flow of the tide, a "hangover" from the old limitations on EnglishAdmiralty jurisdiction (The Genesee Chief53 U.S. (12 How.) 443 (1851)). Nor did Americahave difficulty extending the lien to cover oil pollution damage in the twentieth century (State ofCalifornia v. S.S. Bournemouth 307 F. Supp. 322, 1970 AMC 642 (C.D. Cal. 1969). Americanjudges have also taken an expansive view of the lien, applying it not only to ship damage,personal injury and death claims, damages to port installations and waterways, but also to


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such claims as conversion and governmental wreck removal and pollution clean-up (see W.Tetley,Maritime Liens and Claims, 2 Ed., 1998 at pp. 396-398 and decisions cited there). TheCommercial Instruments and Maritime Liens Actconfers a "preferred maritime lien", outrankingeven ship mortgages, for all "damage arising out of maritime tort" (46 U.S. Code sect.31301(5)(B) and 31326(b)(1)).

3) Arrest in rem

The arrest in rem, now codified in the United States in Supplemental Rule C of the Federal Rulesof Civil Procedure, is another basic component of American maritime law which traces itslineage back to English maritime law, as influenced by English common law.

The in rem process, as well as the old Admiralty attachment, were both offshoots of a singleContinental form of process, theprocessus contra contumacem, which grew up in medievalEurope and became entrenched in the English High Court of Admiralty by the sixteenth century.The original Continental procedure and its English variant are more fully described in apublication of the Selden Society (Hale and Fleetwood on Admiralty Jurisdiction, vol. CVIII ofthe Selden Society, London, 1992, Introduction at pp. xxxviii to xlvii).

The primary purpose of theprocessus contra contumacem was to counteract the defendant'scontumacious refusal to appear before the court and contest the suit brought against him. Theperson and/or the property of the defendant could be arrested, at the same time as he wascited to appear. If the defendant defaulted to appear after receiving a series of citations, the

plaintiff, after the fourth such default, could formulate his claim in the form of a "draft sentenceupon first decree". The Admiralty Court, in a first decree (primum decretum) would then awardpossession of the property arrested to the plaintiff. Any property of the defendant, including,but not limited to, ships and cargoes (and indeed even goods of the defendant in the possessionof third parties) could be seized by this process, nor was it necessary for the plaintiff to assertany hypothecation or maritime lien.

The English variant of the procedure, however, did require the plaintiff, in the draft sentenceupon first decree, to identify the property of the defendant which had been arrested. Moreover,if the plaintiff's suit was allowed, execution was limited to the property so arrested. Thesefeatures of the process in England gradually led, in the seventeenth and eighteenth centuries, tothe view that the ship itself, as opposed to itsowner, was liable for certain debts (e.g.seamen's wages and salvage remuneration). Arrest of the "wrongdoing" res came to be seen asthe exclusivemode in which Admiralty jurisdiction could be exercised. As a result, a sharpdistinction began to be drawn in England between what came to be called the "action in rem" andthe "action in personam" (a distinction, incidentally, which was never made on the Continent).

The Admiralty Court's in personam practice slowly atrophied, beginning after the Restoration in1660, to the benefit of the courts of common law. The distinction between suing in rem and in


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personam was supported and promoted largely by common lawyers and judges, who forcenturies had been at odds with the civilian advocates and judges sitting at Doctors' Commons.The distinction served as a useful argument favouring further restrictions on Admiraltyjurisdiction, restrictions enforceable by the issue of writs of prohibition (see, for example,Johnson v. Shippen (1703) 2 Ld. Raym. 982 (K.B.); Clay v. Snelgrave (1700) 1 Ld Raym. 576

(K.B.);Hale and Fleetwood, supra, at pp. xlvii, note 3 and lxiii-lxiv.)

The action in rem was an integral and distinct part of English Admiralty law by the time of theAmerican Revolution and therefore became an integral part of American maritime law followingthe Treaty of Paris of 1783 and the adoption of the U.S. Constitution in 1789. Fortunately forAmerica, however, as pointed out above, the attachment, which also sprang from the oldprocessus in contumacem, also became part of the maritime law of the United States, having notyet completely disappeared from the practice of the English Admiralty Court when the newRepublic was born.

Thus, as a result of its particular history, American maritime law today can offer maritime

creditors two effective procedural remedies for the enforcement of their rights against vessels,while other countries of English legal heritage now (supposedly) have only one: the action inrem.

4) No cure/no pay in salvage

As outlined above, English and American maritime law traditionally granted a reward forsalvage only where the salvor's exertions produced some useful result (i.e. where the shipand/or its cargo had been preserved from danger in whole or in part by the salvor's voluntaryefforts) (see in the U.S. The Blackwall 77 U.S. (10 Wall.) 1 at p. 12 (1869); W. Tetley,MaritimeLiens and Claims, 2 Ed., 1998 at p. 348 and other decisions cited there). This requirement for

success as a condition of remuneration originated in the common law "no cure/no pay" principleincorporated into English maritime law, and differed from the more liberal Continental rule ofassistance, rooted in civilian negotiorum gestio. "No cure/no pay" remains the fundamental ruleof salvage under art. 12(1) and (2) of the 1989 Salvage Convention, although art. 14 on "specialcompensation" for pollution-related expenses partly reintroduces civilian assistance into moderninternational salvage law.

As the foregoing review shows, a blend of civil and common law rules and principles informsand enriches American maritime law, making it truly a "mixed legal system" of great efficiencyand dynamism at the end of the twentieth century.

XII The Importance of Understanding the Civil and Common Law Origins in American

Maritime Law

Understanding the origin of the different rights, remedies and procedures underlyingcontemporary American maritime law is not merely a matter of satisfying an academic interestin legal history. Knowing the origin of these legal concepts is also eminently practical, becausecomprehension of their mixed civil law/common law pedigree serves to clarify the role which


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these ideas play in the everyday decision-making of U.S. courts in various fields of modernshipping law. A few examples illustrate the point.

1) Schiffaharts. Leonhardt & Co. v.A. Bottacchi, 773 F.2d 1528, 1986 AMC 1 (11 Cir. en banc1985) - the attachment

The attachment, as explained above, is in essence the saisie conservatoire (conservatoryattachment) of civilian jurisdictions, transplanted from England to America before its supposeddisappearance from the High Court of Admiralty, and as subsequently adapted to Americanneeds. Maritime attachment is utilized daily in the federal district courts of the United States, inconjunction with actions in personam. It permits the court to order the seizure before judgment inthe district ofany goods or chattels belonging to a defendant who cannot be found in thedistrict. It provides pre-judgment security for the plaintiff's claim, founds the court'sjurisdiction and generally succeeds in securing the appearance of the defendant to respond tothe claim asserted against him.

In addition, because the attachment is an adjunct of an action in personam, rather than of anaction in rem, the attachment is not limited to ships, cargo or freight, as is arrest in rem underSupplemental Rule C. In consequence, an eventual judgment favouring the plaintiff can beexecutednot only against the attached property, but also against all other assets of thedefendant.

Maritime attachment thus provides one of the great practical advantages of American maritimejurisdiction and law, not generally available in the U.K. or British Commonwealth jurisdictions,where, because of the supposed demise of the Admiralty attachment two hundred years ago, onlyarrest in rem is possible.

Finally, because the American maritime attachment, as held in Schiffaharts. Leonhardtv.A.Bottacchi, is derived from the general maritime law which existed in colonial America and attime of the drafting of the U.S. Constitution, it is a recourse available to creditors, even apartfrom its codification under Supplemental Rule B.

2) Ocean Ship Supply v.Leah, 729 F.2d 971, 1984 AMC 2089 (4 Cir. 1984) - recognition offoreign liens

Because domestic maritime liens arising under the Commercial Instruments and Maritime LiensActare codified and understood as substantive rights in the United States, it is scarcelysurprising that foreign maritime liens and claims are also properly recognized as substantiverights in American conflict of laws (see, for example, Ocean Ship Supply v. The Leah 729 F.2d971, 1984 AMC 2089 (4 Cir. 1984) and other decisions cited in W. Tetley,Maritime Liens andClaims, 2 Ed., 1998 at pp. 552-565), even where such liens and claims differ in their characterfrom the rights to which corresponding claims would give rise in American maritime law.

On the contrary, in the United Kingdom and in many Commonwealth countries (e.g. Australia,New Zealand and South Africa) and countries of British legal heritage (e.g. Cyprus), thejurisdictional/procedural view of liens prevails. Because of that procedural theory, foreign


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maritime liens are not recognized or as ranked as such, unless they are the same as

domestic ones (see The Halcyon Isle [1981] A.C. 221, [1980] 2 Lloyd's Rep. 325, 1980 AMC1221 (P.C.)). In consequence, the true, substantive character of maritime liens (derived from thelex maritima) is violated. Forum shopping is invited. The legitimate expectations of bunkersuppliers, repairers and other suppliers of "necessaries", who contract in jurisdictions like France

or the U.S. in reliance on their claims being secured by a lien, are dashed. And a fundamentalconflict of law principle is breached. (See W. Tetley, International Conflict of Laws, 1994 at pp.570-573 re The Halcyon Isle).

The United States approach is better suited to the demands of justice in respect of the recognitionand enforcement of non-American maritime liens and claims, and it avoids the many pitfallsinherent in the procedural theory of liens.

Canada, virtually alone among British Commonwealth countries, recognizes and enforcesforeign maritime liens and ranks them as such, even where the underlying claims do not give riseto maritime liens under Canadian maritime law (see The Ioannis Daskalelis, [1974] S.C.R. 1248,

[1974] 1 Lloyd's Rep. 174, 1973 AMC 174 and other Canadian decisions cited by W. Tetley,Maritime Liens and Claims, 2 Ed., 1998 at pp. 565-569). American influence on Canada in thisregard has been particularly beneficial and deserves to be acknowledged.

3) American marine insurance law - the absence of a statute

Although the United States has yet to adopt a marine insurance statute, the American SupremeCourt has made a conscious effort to keep American marine insurance law in line with thegeneral principles of English marine insurance inherited from the "Law Merchant", as codified inthe EnglishMarine Insurance Act, 1906. The ius commune character of that law has thus beensafeguarded and international uniformity in this vital area of shipping law has been well served

(see Standard Oil Co. of New Jersey v. U.S. 340 U.S. 54 at p. 59, 1951 AMC 1 at p. 5 (1950);Queen Ins. Co v. Globe & Rutgers Fire Ins. Co 263 U.S. 487 at p. 493, 1924 AMC 107 at p. 109(1924); Calmar S.S. Corp. v. Scott345 U.S. 427 at p. 443, 1953 AMC 952 at p. 965 (1953);Leslie J. Buglass,Marine Insurance and General Average in the United States, 3 Ed., CornellMaritime Press, 1991 at p. 4).

4) Understanding the Hamburg Rules as opposed to the Hague and Hague/Visby Rules

In the important field of carriage of goods by sea, the Hamburg Rules are drafted in a verycivilian style, whereas the Hague and Hague/Visby Rules reflect a characteristically

common law type of draftsmanship.

The difference between civil law and common law legislative drafting styles is really onebetween concision and precision. A typical example of the concise civilian style of theHamburg Rules is art. 5(1), which provides:

"5(1) The carrier is liable for loss resulting from loss of or damage to the goods, as well as fromdelay in delivery, if the occurrence which caused the loss, damage or delay took place while thegoods were in his charge as defined in art. 4, unless the carrier proves that he, his servants or


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agents took all measures that could reasonably be required to avoid the occurrence and itsconsequences."

By comparison, the Hague and Hague/Visby Rules, at art. 4(2)(a) to (q), list various specificgrounds of exoneration of the carrier and the ship from responsibility for cargo loss or damage

(error in navigation or management of the ship, fire, perils of the sea, Act of God, Act of war,Act of public enemies, etc., etc.). This kind ofenumeration of particular exceptions to ageneral rule is a hallmark of the precision on which common law legislative drafters pridethemselves. Precision prevails at the expense of concision.

In the civil law, however, drafters strive to formulate a simple and comprehensive principlewhich can be elegantly expressed in the fewest possible general words or phrases. Art. 5(1) ofthe Hamburg Rules, exculpating the carrier where he has taken "all measures that couldreasonably be required to avoid the occurrence and its consequences", is such a general principle,reflecting the civil law tradition ofconcision in drafting.

Because of the civilian origin of so much of American maritime law, the Hamburg Rules, in theirconcision and generality, should be more readily understood and applied in the United Statesthan in England or British Commonwealth countries, where jurists are more comfortable with theprecision and particularity characteristic of common law legislation.

This matter is far from purely theoretical, however, because the civil law drafting style of theHamburg Rules is one of the major reasons why many common law States have so far refused toadopt them, fearing to lose the "certainty" supposedly afforded by the precision and detailedenumerations of Hague and Hague/Visby, as interpreted by the courts over the years.

5) Understanding the redundancy of general average

An understanding of the deep roots of general average in the lex maritima also facilitates acorrect understanding of the challenge facing those who wish to abolish that institution. Thosewho regard general average as redundant in the fact of contemporary marine insurancesometimes make the mistake of assuming that general average could be abolished merely bycalling an assembly of the Comit maritime international and repealing the York/Antwerp Rulesby a majority vote of the CMI delegates present. The mistake is the assumption that theYork/Antwerp Rules found or constitute general average itself. In fact, the Rules are but oneformulation of general average, voluntarily adhered to by merchants through their incorporationby reference in their bill of lading and charterparty forms.

If general average is to be abolished, an international convention and (at least in jurisdictionssuch as the U.K. and the U.S.) mandatory national statutes will be necessary, because G.A. ismuch older than the York/Antwerp Rules and does not depend on those Rules for its legalexistence.

6) Understanding salvage old and new


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The possibility for the salvor, under art 14 of the Salvage Convention 1989 to recover, as"special compensation" 130%, and sometimes even 200%, of the expenses he reasonably incursin preventing or minimizing threatened environmental damage, even if neither the ship nor thecargo has been salved, must be understood as a reinsertion into international salvage law of theprinciple ofassistance, originating in negotiorum gestio of the civil law.Assistance will thus

coexist with the basic common law "no cure/no pay" rule, in states party to the 1989 SalvageConvention.

XIII. Conclusion

Maritime law as practised in the United States today, in both its general (i.e. judge-made) andstatutory dimensions, blends together significant influences of both the civil law and the commonlaw traditions. The result is a fascinating and complete legal system, which, far from being ofpurely academic interest, also has important practical ramifications for lawyers, judges andmerchants involved with contemporary maritime commerce. This lecture has attempted to tracethe civil law or common law sources underlying many of the principles, rules and procedures

comprising American Admiralty law, as well as to identify some of the practical consequences ofthe dynamic interplay of the two legal traditions in several specific maritime matters.

The inexorable conclusion is that American maritime law is a mixed legal system which enrichesthe United States and has much to offer the world.

XIV. Epilogue

If nothing else, I hope I have demonstrated that maritime law, and American maritime law inparticular, is a growing, evolving, complete legal system with historic roots in both the civil andcommon law. I also wish to reiterate that the maritime law programme at Tulane and the rich

maritime practice in the Eastern District of Louisiana reflects the best in the development andevolution of that law. Finally, I wish to thank the Tulane Admiralty Law Institute and the TulaneLaw School for having so honoured me. I am very, very gratified and indebted.

1.

** Professor of Maritime Law, McGill University; Distinguished Visiting Professor of Maritime

and Commercial Law, Tulane University; counsel to Langlois Kronstrm Desjardins ofMontreal. The author acknowledges with thanks the assistance of Robert C. Wilkins, B.A.,

B.C.L., in the preparation and correction of the text.

2.*

*** The inaugural lecture of the William Tetley Maritime Law Lectures, delivered at TulaneLaw School on January 27, 1999.

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Maritime Law as a Mixed Legal System