The Classical Legacy of Admiralty: The Roman Experience (Part Two of a Two-Part Series)

by Christopher Minelli March 15 2007, 16:18

Last month we examined some pre-Roman beginnings of modern admiralty doctrine, starting from pre-history through the Greek city states.  [1]  This month we will continue our study of the classical beginnings of admiralty and maritime law by examining mighty Rome – what its legal system was like, how Rome’s laws evolved and amplified the admiralty that came before them, and most importantly how Rome’s influence on maritime legal matters influenced a wide array of modern doctrines from maritime tort and contract liability to general average.  I highly recommend reviewing my last article, published on February 15, before continuing on.  [2]  This will set the stage for understanding what Rome inherited and what she gave back to the western legal tradition after her downfall.

At the height of her power, Rome stretched from Scotland to Persia to Spain to Romania.  [3]  The economic and military might of the Empire was the greatest western civilization had seen to that point in history, and arguably the greatest until the modern superpower appeared in the twentieth century.  [4]  Surprisingly, this success came without an early development of shipping and naval superiority.  [5]  In fact, pirates remained a problem on the Mediterranean Seas through the Republic period until the time of Julius Caesar.  [6]  The Romans did not develop large vessels until the time of the Punic Wars, and then they were for military purposes only.  [7]  Once the Mediterranean was rid of the pirate threat, the entire region was ripe for a blossoming of maritime commercial growth.

Starting during the reign of Emperor Augustus Caesar (31 B.C. – 14 A.D.) [8] and lasting through Emperor Nero (54 – 68 A.D.) [9] the Empire experienced a period of peace and prosperity known as Pax Romana.  [10]  During this period, the Romans enjoyed freedom from invasion and social strife to develop greater commercial ties within the Empire and with Rome’s neighbors.  [11]  The height of this commerce could reasonably be said to have occurred during the reign of Emperor Marcus Aurelius.  Roman coins from his period have been found in coastal archeological sites in Vietnam and China, which means that Roman commerce extended nearly to the end of the known world during that period.  [12]

I will start this article with a brief explanation of the Roman legal system, because it was not quite like anything in the modern common law or even civil law traditions.  Then, I will analyze the major contributions the Romans left us, with modern examples from recent cases in admiralty.  These include: admiralty and maritime torts, maritime contracts, marine insurance, and the modern doctrine of general average.  [13]  I will then conclude with a brief summary of the classical legacy of admiralty, and how the modern-day maritime bar can benefit from a basic understanding of the ancient beginnings of their craft.

I. The Roman Legal System

The Romans had the most developed system of laws of all ancient civilizations, but ironically they were the most disorganized while in use.  [14]  Roman law consisted of a variety of senatorial enactments, imperial decrees, and decisions of Roman courts of law.  [15]  The Romans did not publish records of judicial enactments, so over time their laws became more and more difficult to apply.  [16]  Moreover, unlike the theory prevalent in the United States today, the Romans were not concerned with writing down laws for the masses to read for themselves.  [17]  In the early Republic, a group of high ranking officials known as the decemviri legibus scribundis were the main law interpreters, and they did not give any reasoning for the way they decided controversies nor did they make written laws available.  [18]

This changed in 450 B.C. when Roman historian Livy noted the creation of the XII Tables, Rome’s first legal code.  [19]  It consisted mainly of the procedures required for finding relief to various harms recognized under Roman law, but little substantive law as such.  [20]  Livy described the tablets as “laws that every individual Roman citizen not only consented to accept, but (felt) that he himself had actually proposed himself.”  [21]  Several centuries later, after the fall of the western portion of the Roman Empire and the birth of the Byzantine Empire, the second major codification period of Roman law came into being.  First, the Code of Theodossus was created in the middle of the 5th century to organize the jumble of laws that were left in the aftermath of the fall of the western empire.  [22]  Next, about ninety years later, the Digest of Roman Law and the Institutes were both ordered to be researched and completed under Emperor Justinian.  [23]  These are said to be merely updates of the Code of Theodossus, but to modern historians they represent the sum of Roman law in a systematic manner.  [24]  Most of what we know of the workings of Roman admiralty comes from these two documents, and the aforementioned Rhodian Sea Code.  [25]  The Code was a later Byzantine legal instrument, but can be said to summarize ancient admiralty and maritime law up to its promulgation.  [26]

It should be noted that the Romans did not differentiate their laws into different areas, with different theories of recovery, as we do.  [27]  For example, the Romans did not separate torts from contracts but instead took every issue on a case-by-case basis.  [28]  Thus, studying Roman admiralty is sometimes difficult because, although the Romans followed maritime customs from the past, their law didn’t differentiate between harms occurring on the seas and those occurring on land.  [29]  By comparison, our own system of admiralty is heavily divided into theories of liability.  [30]  Claiming admiralty jurisdiction properly depends solely on the theory of liability advanced – contracts require different indicia of jurisdiction than tort; general average requires a different procedure to seek recovery than removing a maritime lien from a vessel, etc.  [31] 

Because it is easier to apply modern examples of the case law to our way of thinking, I have decided to discuss the substantive doctrines of the Roman admiralty under modern theories of liability.

II. Admiralty and Maritime Torts

Law in antiquity had a slightly different viewpoint on harms and remedies than modern law.  Whereas modern law generally guarantees rights that are standing features in society, the law in antiquity did not affect the everyday relationships of people unless they were harmed in specific ways.  [32]  Roman law was no different, and it revolved around whether or not a specific act would create liability in a person or thing.  [33]  Early in Roman law, liability was held against whatever instrument or person caused the specific injury.  [34]  For example, if a man was injured by another by an instrument such as a weapon or dangerous object, the action was brought against the instrument.  [35]  The man was liable in that the weapon was his instrumentality, but in theory this was not true vicarious liability in the sense that our common law understands it because the man could defend as if he were the instrument, as opposed to being automatically liable as in strict liability.  [36]

Eventually, Roman law developed over several hundred years into a system of liability more akin to “eye for an eye,” all strictly defined in statute.  [37]  Justinian’s Digest lists several nautical actions that would be considered torts today, and also the appropriate remedy for the harm.  [38]  It is interesting to note that these remedies seem to be completely disjointed from both the extent of the harm and the culpability of the parties named in the code.  For example, the chapter titled “Concerning the Lex Aquilia” details the Roman law on ship collision.  [39]  Generally, the law required the sitting court to determine what party caused the collision and then determine if the ship’s crew, her captain, or natural forces beyond human control were the cause of the loss of the damaged ship.  [40]  If the crew was at fault, the action would lie against them to the extent dictated by the Code.  [41]  There is also mention of possible minor offenses such as if the sailors were responsible for a loss of cargo, there were other punishments that could be enacted of a lesser extent.  However, the Code did have some built in protections for sailors – if the fish were lost on account of ripped or otherwise defective nets, then the sailors were allowed to escape liability for the harm because “it would be uncertain whether (the fish) would be caught.  [42]

If the action lay against the captain, [43] the liability was the same but the penalties would be less severe.  [44]  This was a reoccurring theme in the Roman legal system; monetary penalties and other remedies were not distributed fairly among the classes of Roman inhabitants.  [45]  The Roman law did not differentiate between civil and criminal law, and average citizens could perform the function of bringing charges against others even if the charge was something modern law would recognize as criminal.  [46]  There was no such thing as imprisonment or rehabilitation, and if there was no monetary remedy for a given offense the only other options were death or exile.  [47]  Slaves and freeman could rarely escape death if they were convicted of an offense, but the citizenry of Rome (especially those that were particularly affluent) could usually escape execution (or worse, death in gladiatorial combat) by using their connections.  [48]  Captains fit this upper class status, and thus were not punished as severely as those of lower rank on the ship.  [49]

Injuries to seamen and other maritime workers in Roman law were no different than injuries to any other person in the Empire.  Here, “fault was the basis of liability” as it is today.  [50]  For example, the modern maritime law related to negligence (as opposed to its land-based cousin of the same name) requires clear causation in order for a plaintiff’s claim to succeed.  [51]  The admiralty claims of unseaworthiness (a cause of action by seamen against the owners of a vessel based on an unreasonable risk theory), maintenance and cure (a cause of action by seamen against the owners of a vessel for medical care and convalescence for injuries sustained “in the service of the vessel), and maritime defamation [52] all require strong showings of factual and proximate causation in order to succeed.  [53]  In many maritime claims, duty is clear and unnecessary to prove once the plaintiff is established as a seamen or the equivalent depending on the particular claim.  [54]

There is one area of seamen’s remedies that is not of ancient origin – wrongful death.  [55]  This cause of action developed in the nineteenth century British and American admiralty courts and is currently codified in the Death on the High Seas Act (DOHSA).  [56]  DOHSA does have the ancient element of liability for fault, however, as well as other theories of liability such as products liability [57] and intentional conduct.  [58]

III. Maritime Contracts

The Romans did not have a developed system of keeping promises and enforcing obligations as we do today.  [59]  Our system of contract law developed from decisions of English common law courts.  [60]  Instead, much like torts the Romans had a loose series of rules that applied to specific circumstances, and the law only recognized a very narrow class of promises that could be legally-enforced.  [61]  The Romans also did not differentiate between contracts and “maritime” contracts, as modern law does.  [62]

There were a few specific classes of enforceable contracts in Roman law, and they were grouped in how “formal” their creation was.  [63]  The most formal was known as stipulato, which was a specific promise from a party to another party that made a right in the receiving party and a legally-enforceable duty within the promisor.  [64]  The Institutes [65] detail what was required in the Roman Empire to create stipulato, which essentially was only that the parties be legally capable of forming contracts and that the intended promises not be illegal under other Roman law.  [66]  The stipulatowas created verbally, by the promisor stating exactly what his duties and rights would be under the contract, and the promisee repeating exactly the same thing back.  [67]  The law believed that the promise would be legally binding because the parties understood exactly what was expected of each of them through this exact exchange.  [68]  Other types of lesser formal contracts were possible, but it is unlikely that these information agreements played any significant part in Roman admiralty.  [69]  Of the contracts relating to maritime issues in Rome, the three most prevalent are sales contracts (emptio venditio), contracts for the carriage of goods (lacatio conductio), and marine insurance on loans for items shipped over water (mutuum).  [70]

Although stipulato was theoretically sufficient for contracts for the sale of goods, Roman law required that the exchange of promises be exactly for what was to be exchanged.  [70]  Although the Roman economy was clearly agrarian and prices for agricultural commodities did not change as drastically on a short-term basis as they can today, the law required that the terms of the stipulato be correct.  [71]  Thus, Roman contract law never developed an efficient means for creating binding contracts when certain terms were impossible or difficult to manifest.  [72]  For example, a stipulato required a fixed price and there was no way to create an enforceable promise when a price was uncertain or subject to change, and no contract was possible where a buyer would purchase all commodities produced by a certain seller – a modern output contract.  [73]

Roman law never fully fixed this omission, [74] but the sales contract, a specialized enforceable promise based on the sale of goods, was developed to fix the problems presented by the formalstipulatio.  [75]  Basically, a sales contract functions in essentially the same way that a stipulatiodoes, except the specialized contract has a number of automatic warranties attached to it because of the special nature of its function.  [76]  One of these warranties protected a buyer from being deprived of items purchased for lack of good title, similar to a modern warranty of quiet enjoyment.  [77]  Another warranted the quality of the goods promised, to protect the seller against fraud in purchasing goods he wasn’t able to see personally.  [78]  This was especially useful in the purchase of goods from sources in other parts of the empire, and paved the way for an increase in shipping as the Empire progressed.  [79]

These warranties acted as safeguards from common problems associated with purchasing goods from strangers across vast distances, so after the sales contract was developed in the second century B.C. the law opened the door for purchasing goods from different parts of the empire instead of finding items locally, or in most cases simply doing without.  [80]  Once goods started to be purchased over vast distances, the need to create special contracts to transport these goods became apparent.  The Roman law thus developed the first contracts for the carriage of goods, or lacatio conductio.  [81]  These came in a variety of subcategories, including hiring a ship by itself (the fore-runner of the modern bare boat charter) or the contract for the transport of goods from one port to another.  [82]  Generally, these contracts were Roman sales contracts with an added warranty that allocated the risks associated with ancient sea voyages.  [83]  The law held the seller (shipper) liable only for losses that he could have prevented; thus, theft of the goods made the shipper liable to the buyer for a monetary remedy, unless the theft occurred with force such as armed thieves in the shipyards or a mutiny on the ship.  [84]  Most other contingencies were at the buyer’s risk.  [85]  This forwarded an important policy goal that allowed shipping to continue without making financing of the voyages too difficult for ship owners to undertake.  The former Rhodian theory of General Average was also extensively used by Roman courts and found much legitimacy inside the lacatio conductio.  [86]

The Digest indicates in the specific instance of a ship’s cargo being stolen, the loss should be distributed over all the parties who had cargo aboard.  [87]  This is similar to the doctrine of General Average, explained below in section IV.  [88]

IV. Vessel Financing and Marine Insurance

Ship financing has its birthplace in Roman law.  [89]  Forming a stipulato was unnecessary for the law to legally-recognize a loan.  [90]  A lender was protected by simply giving money to a borrower, whose receipt of the money instantaneously created an obligation within him to repay the loan at the terms specified by the borrower.  [91]  Loans developed into more and more complex forms throughout the Republic and Empire periods, and one of the offshoots was known as a fenus nauticum, or sea loan.  [92]  This loan was meant exclusively for maritime uses, such as the building or purchase of vessels, paying for carriage of goods, or paying for necessaries for seamen.  [93]  These loans were especially risky for lenders, because the usual terms of the loan eliminated the borrower’s duty of repayment if the ship wrecked or otherwise did not perform as it was expected.  [94]  However, for this release the borrower had to pay a substantial increase in interest for the loan.  [95]

The sea loan also forwarded the important public policy of promoting ancient shipping, by allowing shippers to accomplish what in effect was insurance on the goods.  Marine insurance has its roots in the sea loan, [96] because buyers eventually started taking loans out for the purpose of paying for goods if they were lost at sea.  If the goods arrived safely, the buyers simply paid back the loan immediately with the premium that was accumulated by interest.  Eventually, this evolved into insurance policies based on the sea loan that didn’t involve loan money at all; borrowers would pay a premium for coverage and the lender would only be obligated to “lend” the money in the event the goods covered were lost at sea.  [97]

Modern ship financing and marine insurance works under different theories than in ancient times, but the basic idea of securing valuable cargo from the perils of the sea are alive and well.  Today, modern marine insurers (the largest and perhaps the most trusted is Lloyd’s of London) require more security than a simple stipulato, but marine insurance reduces the costs associated with risk on the high seas and provides many more manufacturers and shippers the ability of sea shipping than would be available without.  [98]

V. General Average

The former Rhodian doctrine of General Average worked its way into the Digest also, and to a large degree it is in the same spirit as is today.  [99]  General Average is somewhat if a mystery to those who are not familiar with the innermost working of admiralty, because there is not a land doctrine similar to it at all.  Essentially, General Average is a risk- and cost-allocation device that the courts use to spread losses at sea across all those benefited by the loss.  [100]  Take for example an ancient ship carrying the cargo of three different parties - $100 of wheat, $100 of olives, and $100 of iron ore.  On its way to the port of debarkation, the ship navigates unknowingly into a storm and is tossed about severely.  The captain realizes that the ship can run for shore and wait out the storm, but presently it is too heavy to make it there before the ship capsizes.  The captain orders the iron ore tossed overboard, lightening the ship, and saving the rest of the cargo.

Fast forward several weeks when the owners of the iron ore sue over the loss of their cargo.  The courts will (and have since pre-Roman times) order all of the parties benefited from the loss of the ore (the two other owners of the cargo as well as the owner of the ship) to compensate the owner of the ore for her loss.  [101]  “But for” the loss of the ore, the entire ship, its crew, and the remaining cargo would have been lost as well.  The closest approximation of General Average in land law is unjust enrichment (restitution theory) in contract law; [102] however, the two differ greatly because the owners of the saved cargo do not have a say in whether the iron ore is tossed overboard or if the ship if left to the perils of the sea.  [103]  Admiralty courts in Roman times as well as today imposed liability on the owners of the saved cargo merely because their property was saved where others were lost, and justice requires compensation. 

Essentially, the process works the same today as it did in Roman times, but the procedures are more complex (involving a variety of specialized adjusters to determine exactly how much the saved cargo’s value was increased, [104] compared with the value of what was lost) [105] and, because of increased cargo containerization on common law countries’ ships, [106] disposing of cargo is difficult to do while at sea.  General Average is usually only available in a few modern circumstances, [107] but we own the basic concept to the Romans.

In general, cargo loss is no longer an issue on modern container ships unless the entire vessel is lost.  [108]  Instead, courts are likely to apply the doctrine to expenses incurred by the vessel in actions required to save the vessel itself or protect its cargo from unreasonable damage or destruction.  [109]

VI. Conclusion: The Classical Legacy of Admiralty

"The empires on land rose and fell, one after another; and from time to time Europe’s land found itself in a general condition of political and legal chaos.  But, through all these vicissitudes there lived on at least one continuous, growing, and mature body of law.  The sea-law continued, independently of racial and dynastic changes, because its vogue was in a region owned by no king or tribe or chieftan – the Sea.  The galleys were its home.  The mariners of all waters had a common life and experience; their common guide was the sun by day and the stars by night; and so the common custom of sea-merchants was sealaw." [110]

Stemming from the mess that Roman jurisprudence became in the later years of the Empire, Emperor Justinian codified the body of Roman laws, decisions, and decrees into his Institutes and his Digests.  The Roman law descended down to us through the middle ages in this manner, and that is why the civil, codified law systems of Western Europe are recognized as “Roman Systems.”  Within this codification, much of modern Admiralty survived in its original form.  [111]

Both historians and jurists alike recognize that in addition Admiralty’s unique nature made it particularly resistant to the evolution that laws undergo with the passage of time: the rise and fall of empires, the crowning of new leaders, popular revolutions, and changing societal norms that are inevitably worked into law in the form of public policy or equity exceptions.  [112]  Where Roman laws on land fell into disuse with the disintegration of the Empire, maritime law lived on because the Romans adapted customs that were already in use for their own, and when they disappeared the seafarers of Europe kept doing what they had done for hundreds of years previous.  [113]

It has been noted that Admiralty as Anglo-American law understands it is more akin to the civil law than to common law, and for good reason.  When the Romans left England during the decline of their empire, their law left with them.  [114]  Over hundreds of years the English developed new theories of liability for torts and contracts and distinguished principles of law into different disciplines as we do today.  [115]  The United States inherited these principles before the American Revolution.  [116]  However, the admiralty and its intricacies lived on among the seafaring nations of Europe and were incorporated into medieval documents such as the Laws of Oleron and the Laws of Wisbuy, which bridged the gap between the ancient admiralty and maritime law and what we know today.  [117]

The next time you go on a cruise, take a ferry boat across a river, read the latest Master and Commander book, or even see a cargo container rumble by on a train as you wait next to a railroad crossing, think about the rich history of the Anglo-Saxon admiralty and maritime tradition and its foundation in classical history.

This is the second part of a two part series.  The first part was published on February 15, 2007, and can be viewed under the “Transportation” tab on the left side menu.

Sources and Endnotes:

[1]  Christopher R. Minelli, The Classical History of Admiralty: The Pre-Roman World (Part One of a Two-Part Series), THE JOURNAL OF THE BUSINESS LAW SOCIETY (February 15, 2007),http://iblsjournal.typepad.com/illinois_business_law_soc/2007/02/the_classical_l.html#more.

[2]  Id.  See also 1 BENEDICT ON ADMIRALTY §§ 2-5 (Lexis 2006).

[3]  See Roman Empire, WIKIPEDIA (March 14, 2007), http://en.wikipedia.org/wiki/Roman_Empire.

[4]  See id.

[5]  THOMAS J. SCHOENBAUM, 1 ADMIRALTY AND MARITIME LAW § 1-3 (Practiconer’s Treatise ed., 2004).

[6]  KARL CHRIST, THE ROMANS 1997-99 (1984).

[7]  See id.

[8]  See SUETONIUS, THE TWELVE CAESARS 329 (Penguin Classics ed., 1989).

[9]  Id.

[10]  CHRIST, supra note 6, at 60-62.

[11]  Id.

[12]  SPENCER C. TUCKER, VIETNAM 22 (1999).

[13]  Admiralty and maritime law is considered separate doctrinally than land-based law.  This is so even for doctrines that seem similar or even synonymous with its continental cousins, such as the comparisons between the general maritime law’s negligence and common law negligence.  For example, both forms of negligence involve a duty of care, breach, causation, and damages, but maritime law typically modifies the duty of care to activities on the high seas, and allows the claim only against those in navigable waterways.  Keep these policy differences in mind – the law on sea versus the law on land – while looking at admiralty topics.  See THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW §§ 1-5, 3-2, 3-3 (4th ed., 2004) (hornbook edition).

[14]  CHRIST, supra note 6, at 121.

[15]  Id.

[16]  Id.

[17]  Id. at 122.

[18]  Id.

[19]  See LIVY, THE HISTORY OF EARLY ROME 234-235 (Penguin Classics ed., 2003).

[20]  See CHRIST, supra note 6, at 121-22.

[21]  See LIVY, supra note 19, at 234-35.

[22]  See text accompanying note 1, supra.

[23]  CHRIST, supra note 6, at 131.

[24]  Id.

[25] Id.

[26]  See 1 BENEDICT ON ADMIRALTY, supra note 3, at § 3.

[27]  See CHRIST, supra note 6, at 131-5.

[28]  See id.

[29]  See id.

[30]  See generally SCHOENBAUM, supra note 5, at §§ 1-1,3.

[31]  Id.

[32]  JUSTINIAN, THE DIGEST OF ROMAN LAW 14 (Penguin Classics ed., 1979).

[33]  The Romans were generally unconcerned with omissions, such as a dereliction of an affirmative duty in modern times could give rise to liability.

[34]  OLIVER WENDELL HOLMES, THE COMMON LAW 8, 10-12 (Barnes and Noble ed., 2004) (1881).

[35]  See id.

[36]  Id. at 10.

[37]  The statutes were alive and well in the east empire (where Justinian reigned), but it should be noted that law was in short supply in the west during those years.  It is questionable whether the code had any effect west of Greece, but certainly the traditional maritime laws that were customary across the Mediterranean were in force.

[38]  JUSTINIAN, supra note 32, at 88.

[39]  Id.

[40]  Id. at 89.

[41]  Id.

[42] Id.

[43]  CHRIST, supra note 6, at 124.  (In this sense, “captain” refers to any person on board a vessel that is in charge of men, not only the person in charge of the vessel itself).

[44]  Id.

[45]  See generally id. at 63-94.

[46]  Id. at 123.

[47] Id.

[48]  Id. at 124.

[49]  See id.

[50]  SCHOENBAUM, supra note 13, at § 12-2.

[51]  Id. at § 3-3.

[52]  Id. at § 3-1.

[53]  See generally id. at §§ 3-9, 4-28.

[54]  See id. at §§ 4-8, 4-9.

[55]  See generally id. at §§ 6-1, 6-3.

[56]  Id. at § 6-2.

[57]  Id. at § 3-6.

[58]  Id. at § 3-10.

[59]  JEFFERY FERRIEL AND MICHAEL NAVIN, UNDERSTANDING CONTRACTS 21 (2004).

[60]  Id.

[61]  Id.

[62]  See note 27, supra.

[63] Id.

[64]  Tony Weir, Contracts in Rome and England, 66 Tul. L. Rev. 1615, 1620 (1992).

[65]  Justinian, Institutes, III.19

[66]  R.W. LEE, THE ELEMENTS OF ROMAN LAW 256 (3rd ed., 1986).

[67]  Id.

[68]  DAVID JOHNSTON, ROMAN LAW IN CONTEXT 77 (1999).

[69]  Unlike today, the Roman “business” of shipping was highly formal.  The average person could not send even small items without hiring a courier – the postal system wasn’t quite invented yet!  Because of this formality, only the strongest contracts would have been used.

[70]  Id. at 77-78.

[71]  See id.  See also Allen Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 COLUM. L. REV. 576, 589 (1969).

[72]  See Farnsworth, supra note 71.

[73]  ALLEN FARNSWORTH, CONTRACTS 599-600 (4th ed., 2004) (hornbook edition).

[74]  Even in a sales contract, Roman law required that the terms be definite in price and material.  Thus, a generic good such as wheat could not be the subject of a contract because the agreement must have been for a specific bunch of wheat.  This was almost impossible to articulate in the ancient world as it would be in modern times.  See JOHNSTON, 79-80.

[75]  JOHNSTON, supra note 74, 79.

[76]  Id. at 80-83.

[77]  Id. at 81.

[78]  Id. at 83.

[79]  See id. at 96-98.

[80]  Id.

[81]  Id.

[82]  Id. at 97.

[83]  Id. at 83.  For information on modern contractual warranties, see FERRIEL AND NAVIN, supra note 68, at 357-407.

[84]  Id.

[85]  Id.

[86]  Id.  See also Erasmus Benedict, The Historical Position of the Rhodian Sea Law, 18 YALE L.J. 223, 240 (1909).

[87]  Digest 14.2.3

[88]  See also SCHOENBAUM, supra note 13, at § 15-1.

[89]  JOHNSTON, supra note 68, at 92.

[90]  Id. at 84.

[91]  In Ancient Rome, the standard interest rate for loans was 12%, or 1% per month.  This was only customary and lenders were usually free to set their own interest rates at their own needs.  Occasionally the government would set limits on interest rates, but these were rare before the Byzantine period.

[92]  JOHNSTON, supra note 74, 95-96.

[93]  See id.

[94]  Id. at 95.

[95]  Id.

[96]  There is some evidence that marine insurance was also practiced in Mesopotamia, but in a different form than their Roman counterparts.  See THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 913 n. 5 (Hornbook ed., 2006).

[97]  See Id.

[98]  This principle also applies to other forms of transportation law, such as railroad freight shipping.

[99]  SCHOENBAUM, supra note 13, at § 15-1.

[100]  See generally Id.

[101]  See generally FERRIEL & NAVIN, supra note 59, at §§ 15.01-15.03.

[102]  See SCHOENBAUM, supra note 13, at § 15-1.

[103]  Id.

[104]  Id.

[105]  Id. (Professor Schoenbaum notes that these calculations, performed by dedicated general average adjusters, can sometimes take years to accomplish).

[106]  See generally MARC LEVINSON, THE BOX (2006).

[107]  See SCHOENBAUM, supra note 13, at § 15-1 (noting that modern general average expenses can be as diverse as charges run up at an emergency port of refuge to charges relating to repairs).

[108]  Shipping containers are large metal boxes that are packaged and sealed at the sender’s business or factory, and then shipped as a unit to be opened at the buyer’s business or factory.  Containers save countless hours of time loading and unloading ships, because their uniform size makes stowage easy by crane.  This reduces shipping costs tremendously.  See generally LEVINSON, supra note 106.

[109]  See text accompanying footnote 107, supra.

[110]  Quoted in BENEDICT ON ADMIRALTY, supra note 3, § 2.

[111]  BENEDICT ON ADMIRALTY, supra note 3, § 2.

[112]  See 1 SCHOENBAUM, supra note 5, at §§ 1-2, 1-3., 1-4.

[113]  See id.

[114]  Allen Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 COLUM. L. REV. 576, 589 (1969).

[115]  The common law approach seeks to find a “perfect” metaphysical law by applying established doctrine to a plethora of different fact patterns over time, thus finding exceptions and new doctrine as law evolves.  This did not readily apply to maritime law as uniformity is a good in itself, especially when seamen and others on board vessels can speak a multitude of languages and have other barriers to direct, meaningful communication.

[116]  As a product of our English roots, admiralty law was established early in the colonies.  This is probably a matter of the maritime nature of the connections across the Atlantic between England and her colonies.  The influence of other world powers in North America – France, Spain, and the Netherlands – didn’t influence this maritime law because they all shared in the same past as did England.

[117]  SCHOENBAUM, supra note 6, § 1-4.

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