by Albrecht Cordes*
Almost simultaneously, at the end of the 13th century, maritime laws were being written down all around Europe. This invites a synchronic comparative study. This paper compares three areas of maritime law of varying levels of abstraction: jettison, seamen’s labour law, and common decision-making before and during the voyage. The outcome, as in any comparison, is differences and similarities – differences in the degree of the lord’s (king’s, duke’s) influence, who, for instance, ordered the presence of a ship notary on Mediterranean seafaring. The maritime laws less influenced by the heavy hand of the state abound in casuistic details, evidently being the product of the process of negotiations – negotiations which included the seamen, an influential and forthright group indeed. Despite all the natural differences within the vast space between Norway and the Mediterranean, the challenges posed by the characteristics of seafaring in general are quite similar. The solutions, however, differ greatly and bristle with creativity and variety. The maritime law of the 13th century looks like a gigantic legal laboratory in which experiments were conducted continuously. Tendencies towards a stronger unification and implementation of specific solutions only cropped up in the following century.
Nearly 20 years ago, I promised the readers of this journal to continue “The search for a medieval Lex mercatoria” [(2003) Oxford U Comparative L Forum 5 at ouclf.law.ox.ac.uk]. I have since investigated many different aspects of medieval mercantile law, and other subjects like sale and monetary transactions are still on a list of possible future study. But in the process, the original fixation on the Lex mercatoria-question faded a little. While the contemporary lawyers took little notice, the historians were so easily persuaded that the concept of a universal, autonomous medieval trade law was but a myth that I fell under the impression that I was slaying an already dead dragon. Hence, while my fascination with the medieval merchants and their law continues, the motivation and the method changed towards comparison. That is the obvious alternative to the axiomatic and unlikely assumption that mercantile law was the same at all places and all times, as Lord Mansfield had put it (Cordes, op. cit., at n. 7), created autonomously by independent mercantile communities as Harold Berman had proposed (op. cit., at n. 17). This led to a study of the most likely candidate for the development of trans-regional and trans-national mercantile law in a given legal area: the rules governing oversea trade commonly called Maritime law.
The result is a distinctively legal paper that does not focus on economic questions like the costs and benefits of agency, cooperation, distribution, transactions, or information disparities. All of these subjects are fascinating, and the codes examined here could contribute to their study. However, my primary concern is to try to track down the inner point of view of the actors regarding the legal sources they were producing and applying. How did the historical players in each jurisdiction conceive of their projects? As they rarely commented on their own endeavours, the proof is circumstantial and scarce. Before proposing some conclusions in Chapter 4, it is necessary to draw inferences from the codes the lawmakers of the 13th century produced. That is the task performed in Chapter 3 which should be viewed as the core of the paper, and – truth be told – was the real motivation for the study and also the most fun to write.
The paper starts with a ‘parade of scholarship and historiography’, as a peer reviewer has called it. I felt duty-bound to disclose my perception of the state of research to the experts for the five ports examined here and to the participants in the theoretical discussions the paper drew inspiration from. But readers who are mainly interested in my comparison of the maritime law codes of the 13th century can probably jump forward to Chapter 3 without much loss.
The five maritime law codes which this paper will compare with one another are referenced by place of origin and article number (Bergen article 8, Oléron article 16 etc.). These abbreviations designate the following sources:
- The ship laws (written in Latin), statuta navium, promulgated in 1255 by Doge Raniero Zeni for Venice,
- the collection of maritime customs (written in Catalan, except for the title), Consuetudines et usus maris, which constitute book 9, title 27 of the Costums de Tortosa, a port at the mouth of the Ebro, and date from 1272,
- the Rôles d’Oléron or Jugements de la mer (written in Anglo-Norman), which focus on the export of wine from Bordeaux and La Rochelle and originated before 1286,
- the Hamburg ship laws, schiprechte (written in Middle Low German), originating c. 1292 and subsequently annexed to the by-laws of Hamburg (1270) as Part 13, and
- the Norwegian mariners’ law, farmannalǫg, which forms Part 9 of the by-laws of Bergen (Lagabætir) written in Old Norwegian and promulgated by king Magnus VI. Håkonson in 1276.
Si el leyn […] serà en via de son viàgie e, per fortuna de temps, lo senyor del leyn e els mercaders s’acordaran que n vàgien en terra, e entr éls empendran que l leyn e ls avers sien jermans – ‘If a ship is on a voyage and the shipmaster and the merchants agree, in view of the foul weather, to run the ship aground, they concur among themselves that the ship and the goods on board should be brothers’: According to the maritime law of Tortosa, this agreement to pool risks is the essential precondition for the application of the principle of general average (Ger. ‘Große Haverei’), by which any losses occasioned by the perils of the sea are to be borne in proportion to the value of the entire cargo. Although the decidedly odd notion of the ‘brotherhood’ of ship and goods is unique to the maritime law of Tortosa, the clash of interests with which the passage grapples is dealt with in all maritime laws from Antiquity to the present day. But do they all arrive at the same solution? Were these solutions arrived at in common or are they merely a number of coincidentally more or less similar answers to a common problem? These quandaries constitute a clarion call to legal historians to investigate the law of the sea.
That is not the primary focus of this paper, however. The notion that the sources, if only investigated thoroughly enough, would disclose a uniform and universal Lex maritima, which then would serve as a stepping-stone to the discovery of a universal and autonomous Lex mercatoria, has been adequately dealt with elsewhere. Equally marginal to this paper is the frequently aired question about the rise and fall of maritime law. Scholars tend to interrogate the sources with a view to laying bare the roots of particular laws: that is to say determining what influence more ancient law codes might have had on them. The title of Karl-Friedrich Krieger’s seminal dissertation ‘Ursprung und Wurzeln der Rôles d’Oléron’ [Origins and Roots of the Rôles d’Oléron] is symptomatic of this approach. Investigating the provenance of individual legal regulations can be illuminating and can help to answer important questions. But those questions can only be viewed as decidedly preliminary.
My main focus here is directed on the original content of the statutes and its influence in its own time. If you stop short of that, declining to analyse the individual provisions of the law, you are engaging in something like a wine tasting in which the territoire, the vintages and the labels on the bottles are discussed, but no one actually tastes the wine. Scholars have dug up masses of details on the influence of the Rôles d’Oléron, the Llibre del Consolat de Mar etc., but far too little is known about their content. Indeed, the investigation only begins to crackle with interest if we understand the problems the codes tackle and the solutions they propose. That is the reason why this paper opts for another comparative approach. Instead of attempting to piece together a mosaic in the fond hope of demonstrating the existence of a pan-European medieval law of the sea, or indeed of viewing the development of maritime law from a long historical perspective in order to investigate origins, the analysis here limits itself to a narrow topic and a narrow time frame. Five separate maritime codes, chronologically cheek by jowl and dealing with similar problems but geographically widely separated, have been chosen for comparative analysis. They have also been chosen because they straddle the border between the oral and the written transmission of law. In each of the five areas, the maritime law code analysed is the first (or at least the first substantial) codification of the law of the sea. This characteristic provides the ideal setting for a comparison of the multiformity and creativity of the solutions contemporaries found for problems which were, after all, fairly similar. Comparing the codes with each other will bring the specific characteristics of each into sharp focus. Placing strict limits on the sphere of the law and the time frame of the analysis will enable us to bring to light the entire gamut of possible solutions to conflicts.
Commercial maritime law jumped out for three reasons – aside from the sheer delight afforded by the vivid immediacy of the sources. First of all, the rules to be analysed are evidently the result of negotiations conducted by the parties involved: that is to say regulations on which the professional merchants and seafarers had agreed upon amongst themselves. It would be going too far to speak of ‘law-making without lawyers’ but even if academic jurisprudence was available in the background at least in Bergen, Hamburg and Venice, the law makers seldom availed themselves of it. Second, it goes without saying that specific and particular circumstances of the time loomed large in the drafting of the law. On the one hand, the climate, the limits of the shipping season, shipbuilding technology, navigation techniques, weaponry, the mode of ship propulsion (by sail or oars) and crew size all differed significantly in the five areas under consideration here. All of these factors must have strongly influenced the rules generated to regulate shipping. On the other hand, the problems in each geographical area were quite similar: the vagaries of the weather; the presence of other ships (both of which could, depending on the situation, promise security or herald disaster); the demanding tasks of loading and unloading merchandise and storing it securely on board; the perils of the sea in general; the legal status of merchants and mariners in overseas ports; and the competing interests between ship owners and shipping merchants and, indeed, between shipmasters and sailors. That the problems demanding solution were quite similar everywhere should not be associated with the old, superseded notion that the nature of the problem at hand in and of itself dictated a particular solution. Quite the contrary: there is not a single case among those investigated here in which all maritime codes arrived at the same solution to a particular problem. Third, maritime law is fascinating precisely because it was generated by ad hoc decisions arrived at under pressure of time. No one wanted to delay sailing to explore picayune legal niceties, so there was no time to consult higher authorities at leisure. Those on board were on their own in the face of danger. Compared to dry land, the high seas were a radically different environment. Whereas novel problems on land could be consulted upon and addressed with time at hand, many of the problems aboard had to be decided immediately. Maritime law therefore had to address these before the event and thus anticipate, and be applicable to, the unexpected. What effect did this have on regulation?
The time frame of this paper is the late 13th century. Four of the five maritime codes were first committed to writing between 1272 and 1292. Venice (1255) was slightly earlier. Focusing on these five almost contemporaneous maritime law codes yields the methodological advantage that they can be viewed as equals, operating independently from one another (as opposed to trying to wrestle them into some hierarchy). Our investigation can consequently address their attempts to grapple with the problems at hand directly rather than being distracted by the question of how one may have influenced the other. Generally, the late 13th century was defined by an irresistible urge to codify. This urge can be traced to the many newly founded cities in need of a legal framework, the rising number of academically trained lawyers in the service of the Church (and increasingly the service of lay rulers too), the general increase of literacy and schooling, and the rise of vernacular languages which gradually emancipated themselves from Latin. Maritime law is a good example of this tendency which was occurring across Europe, from the Iberian peninsula to the British isles, Scandinavia and the Baltic. Only in Italy had maritime law been committed to writing in the 12th century. To be sure, there were more ancient maritime codes in the Eastern Mediterranean – produced in the Byzantine and Arab worlds – but they will be relegated to the side-lines in this paper. Even more ancient was the Roman Lex Rhodia de iactu (transmitted in the Digest 14, 2), which by its title alone points to the Eastern Mediterranean.
This paper proposes to compare the maritime legal codes of Venice (1255), Tortosa (1272), Oléron (before 1286), Hamburg (1292) and Bergen (1276). These ports were not merely separated from one another by huge distances, but their maritime law codes also differ greatly. Who promulgated these laws? What languages were they written in? In what context were they transmitted to later generations? What are we to expect from a comparison? To answer these questions, we need to glance briefly at the state of research into medieval maritime law in general and into our five law codes in particular.
The list of studies which deal with the maritime law of the western and northern European seas and the Mediterranean is dismayingly short. If we restrict ourselves to genuinely scholarly efforts, it consists of exactly one article: albeit one which is long and substantial enough to qualify as a monograph. In 1888, in volume 35 of his own journal ‘Zeitschrift für das gesammte Handelsrecht’ (ZHR), Levin Goldschmidt published an article with the bulky title ‘Lex Rhodia und Agermanament. Der Schiffsrath. Studie zur Geschichte und Dogmatik des Europäischen Seerechts’. It will be examined in detail below. Perhaps because of the obscure terms inserted into its title and surely because of its daunting length, this article has never received the scholarly attention it deserves. Nonetheless, it is no less worthy than Goldschmidt’s ‘Universalgeschichte des Handelsrechts’. In a certain way, and in spite of its great merits, this ‘Universal history of commercial law’ is a bit of a disappointment. Goldschmidt had nobly committed himself to leaving no stone unturned and to working out every conceivable detail. Consequently, he never achieved full control of his material. This was decidedly not the case with his investigation of maritime law. Since the scope of the article was restricted, Goldschmidt faced no such unsurmountable difficulties in maintaining his principles and was able to produce a seamless history of jettison, beginning with Antiquity and running up to his own day.
The article is also significant as Goldschmidt’s only attempt to put his principle of universality to the test. He was exquisitely aware of the differences between the eras and areas he was examining one after another. In marked contrast to other studies which pursue a particular legal institution from Antiquity to the present – and are chiefly interested in demonstrating continuities from the Digest to the Bürgerliches Gesetzbuch – Goldschmidt’s approach is very much open to comparing and contrasting. This is, of course, a prerequisite for any comparative investigation whose result is not hewn in stone from the outset. He refused to yield to the teleological temptation to narrow down the subject and cherry-pick the sources to conjure up the illusion of a perfectly organic development of the law. When dealing with the subject of jettison in the Middle Ages, this enabled him to perceive connections and details which were not to be found in the Lex Rhodia but had their origin elsewhere: for instance in the Catalan agermanament. Hence the title of Goldschmidt’s article.
Nor did Goldschmidt postulate a universal maritime law, common to Europe as a whole. Rather, he distinguished between three legal realms: a Mediterranean one, a Northern European one and a Western European one – the last being designated as ‘Frankish’ and corresponding to the area upon which the Rôles d’Oléron imposed its stamp (west and north France, north Spain and above all the British isles). In her dissertation (2012), Edda Frankot encountered the same problem, asking whether Scottish maritime laws ought to be assigned to the northern or the north-western legal realm. She opted for the second alternative and, in so doing, split the Northern European realm into a Scandinavian and a Hanseatic legal region. We can skip the details, since the main point is that Goldschmidt, a legal expert of the 19th century, and Frankot, a historian of the 21st, both concluded that there was no unitary legal sphere in Europe, and hence no universal law of the sea.
Later studies of more restricted scope at least compared the Rôles d’Oléron and Catalan maritime law. But subsequent scholars have quailed to follow Goldschmidt’s footsteps and undertake so broad an investigation. At least Götz Landwehr contributed a helpful conspectus of research on maritime law in the Mediterranean and in Europe’s outer seas. He had the impression that maritime law arose independently in a number of ports in order to deal with issues arising from local seaborne trade. Hence, the law varied from place to place. It was only in the Late Middle Ages, as trade intensified, that these local legal systems coalesced, forming large regional legal systems.
The Venetian maritime code, the Statuta navium [et navigantium] (1255), is the most ancient and, with 129 articles, the longest of the sources investigated here. It is also the one on which the hand of the state lies most heavily. At the height of its powers in the mid-thirteenth century, Venice regulated all aspects of navigation in such a precise and rigorous manner that the Statuta navium could be easily mistaken for the product of Early Modern jurists. Ships were divided into various categories, for each of which the code specified equipment standards and crew sizes. The crew was subdivided by function into specific classes. In particular, all ships were required to have a scribe on board, who was charged with noting all sorts of events during the voyage, thus preserving them for posterity in a sort of ship’s log. Violations of the code were punishable by fines payable to the Venetian government. The Statuta navium also determined which officials were responsible for adjudicating conflicts and collecting fines. All in all, 13th century navigation in Venice, even if it was privately financed, very much takes on the appearance of a state-sponsored enterprise. Inexplicably, the code of 1255 which was frequently re-worked in the 14th century, has not excited the curiosity of scholars for over 50 years. The last relevant article was published in 1962 by the American Venice specialist Frederic C. Lane.
The voluminous Costums de Tortosa (1272) include (almost at the end) the Consuetudines et usus maris, quibus utuntur homines Dertuenses (i.e. of Tortosa), divided into 43 articles, some of considerable length. Although Tortosa (located at the mouth of the Ebro halfway between Barcelona and Valencia) was never economically terribly significant, it can lay claim to vast importance as the place in which the earliest Catalan maritime law arose. In particular, its Consuetudines was one of the prime sources of the most important Mediterranean collection of maritime law, the Llibre del Consolat de Mar, which was written down in Barcelona in the late 14th century. Parts of the Llibre will be touched upon here and there in the course of this paper. Goldschmidt paid close attention to Tortosa’s code in view of its unique regulation of jettison, mentioned at the outset of this paper. Just a few years before Goldschmidt’s article appeared, Bienvenido Oliver undertook a detailed analysis of Tortosa’s maritime law. In terms of content, labour regulations for mariners only played a minor role in Tortosa, compared to the four other codes. However, the Consuetudines take great pains (and devote much space) to detailing the duties of the ship’s scribe. This would be an excellent topic for an in-depth investigation but cannot be dealt with here, since the three maritime law codes from the outer seas of Europe do not mention ship’s scribes at all.
The Rôles d’Oléron – which, for reasons that remain stubbornly obscure, took their name from an island lying north of the mouth of the Gironde – are also called jugements de la mer: indeed, many sources refer to them by both titles. ‘Jugement’ is also the word with which all articles (with one exception) end. However, the court which issued these jugements has frustrated all attempts at identification. Hence, whether the Rôles d‘Oléron are really based on court judgements is an open question. As the text regularly emphasises, they regulate the seaborne export of wine via Bordeaux and La Rochelle, principally to England. Aquitaine was subject to the English Crown in the 13th century, and today England accounts for the largest number of surviving manuscripts of the Rôles d’Oléron. In the 14th century, the influence of the Rôles d’Oléron extended to northern Spain and, above all, to Flanders, where they were translated into Flemish (Vonnisse van Damme). In contrast to the maritime codes of Tortosa, Bergen and Hamburg, the Rôles d’Oléron were never appended to a more comprehensive law code but circulated independently, being bound together with a multitude of other texts. Of all the codes examined here, the Rôles d’Oléron are by far the shortest and, consequently, easiest to use. This may go some way to explaining their reception so far afield. Fanciful legend ascribes the origins of the Rôles d’Oléron to Eleanor of Aquitaine († 1204), but she had been dead for many decades before the Rôles saw the light of day. No one knows who was responsible for the most influential maritime law of Europe’s western and northern seas. In his dissertation, Karl-Friedrich Krieger undertook an exacting analysis of the Rôles d’Oléron and edited them (in an appendix) from an early 14th century manuscript, flanking his edition with a translation into modern German.
The Hamburg schiprecht, conventionally dated to 1292, consists of many textual layers. The first six articles stem from a statute regulating Hamburg’s Utrecht trade. It was a common phenomenon in Hanseatic ports that those who traded regularly with a particular area or town (such as Utrecht) tended to club together, both on the high seas and at home. However, there are more ancient sources for the articles in the Hamburg schiprecht. For instance, there is an exposition of maritime law provisions which Hamburg sent to Lübeck in 1259 which are notable for the advantageous legal position of shipmasters and mariners (in comparison to the other maritime codes examined here). Hamburg was not alone in promulgating maritime law. Lübeck, too, had inserted individual maritime regulations into its law code from the mid-twelfth century onwards. Both towns, located at no great distance from one another, complemented each other, the one offering access to the North Sea (Hamburg) and the other to the Baltic (Lübeck). Contact between both was intense and continuous. Hence this paper will also touch on Lübeck’s maritime law, transmitted in the copy-book of Chancellor Albrecht of Bardewik (1299). The oldest surviving copy of Hamburg’s maritime law is to be found in the Rotes Stadtbuch (1301). Subsequently, it was appended as Chapter 13 to the town’s by-laws, commonly known as the Hamburg Ordeelbook (1270). Frank Eichler, who edited all of Hamburg’s law codes, included the maritime code in his edition of the Ordeelbook, flanking the text with a commentary and a translation into modern German.
The mariners’ law of Bergen comprises Part 9 of the town’s by-laws, which were promulgated in 1276 by King Magnus VI Håkonson, known as Magnus Lagabætir (the ‘law improver’). Two years previously, the king had issued a code of largely identical laws for four provinces of his kingdom. Seven of the nine parts of the Bergen by-laws correspond largely to this new code. Two parts, only relevant for rural life, were excised in 1276. In their place were inserted distinctly urban regulations and – as the ninth and last chapter – the Farmannalǫg, the ‘mariners’ law’. The very circumstances of the origin of the Bergen by-laws make the heavy hand of the monarch manifest. Magnus was a king who was determined to lay down the law in his kingdom, his capital and also in the organisation of his subjects’ seaborne trade. This does not mean that all regulations in Chapter 9 were hatched in 1276. Some can be shown to have stemmed from contemporaneous or slightly older sources. However, the fact that half of any fines were to be paid to the Crown suffices to demonstrate how pervasive Magnus’ influence was. All in all, the Bergen Code represents a kind of law typical of Scandinavia, regulating as it does the rights and duties of a group of economically independent mariners, the hasetar, who only submitted themselves to the command of a shipmaster (styrimann) in order to avoid disaster while underway on the high seas. The Bergen code was translated by Rudolf Meissner, who flanked it with an introduction to mariners’ law.
With the growing division of labour on board, the number of conflicts of interest rose as well. I propose to analyse these conflicts in the context of three central areas of maritime law:
- The principle of general average. If a ship was imperilled by rough weather or the approach of pirates, measures had to be taken in the common interest to retain seaworthiness or make a speedy escape. Goods were thrown overboard (jettison), masts and anchor cables cut.
- Labour law for mariners, in particular the regulation of the question of wages in case a sailor was unable to work (because of illness, ship repair, end of the shipping season), and in the case of tasks which exceeded the sailors’ contractual obligations (rescuing those fallen overboard, salvage).
- Decision-making: Is the weather too rough to risk leaving port? Are the crane cables frayed and likely to snap when unloading goods? Or, in combination with 1) above, does the rigging need to be cut in order to prevent the ship from drifting onto the rocks? Shipmasters, ship-owners, merchants and sailors assessed the perils of the sea differently.
These three central areas do not mesh effortlessly, since they inhabit different spheres of the law. General average is a highly specialised classic topic of dogmatic jurisprudence, treated in most textbooks on Roman law. Maritime labour law is a larger, more general subject which can only be investigated if the mariner enters ship service voluntarily. That excludes slaves, prisoners, convicts and others subject to forced labour, and therefore also excludes Roman law. Included, on the other hand, are the Scandinavian seafarers who were not subordinate employees but independent contractors, since they received a share of the profit and loss of the voyage in place of wages. Nonetheless, once on board, they were subject to the orders of the shipmaster and, in this regard, sufficiently resembled wage-earners to warrant discussion in this article as well. The third area, decision-making, is usually not regarded as an independent category of legal history. As a subject, it is something of a cross-section, cropping up in a number of areas of maritime law. Nonetheless, since medieval law is often characterised by its strict adherence to formalised procedures, it seems sensible to include a largely procedural subject.
All in all, these three central areas were chosen for examination here not merely because the regulations contain fascinating material, but precisely because they are so disparate. Like a diamond, which sparkles precisely because it has many facets, the hope is that examining areas from different spheres of the law will afford us an illuminating multi-dimensional perspective on maritime law.
The principle of general average (from the Arabic hawar – error, damage) comes into play when goods are jettisoned in order to save the ship and any remaining goods in the face of a common danger. If this is mandated by law or agreed upon by the parties in advance, the consequence is that any individual loss will be borne proportionally to value by the owners of the ship and the merchants whose cargo was rescued as a result of this sacrifice. Jettison is the most common case. Goods were thrown overboard in order to lighten the ship, to outrun a looming danger and save lives, goods and, not least, the ship itself. Crucially, jettison had to be undertaken deliberately and with the intention of preserving as much of the ship and its cargo as possible. Losses occasioned by piracy or misadventure on the high seas were normally excluded from apportioning. The principle of solidarity among those on board which general average invoked might seem preternaturally obvious. Indeed, it crops up in Chapter 14.2 of the Digest and originated – as the name Lex Rhodia de iactu suggests and a rescript of Antonius Pius explicitly states – in the context of navigation in ancient Greece. However, the chapter in the Digest deals with much more complicated situations in which jettison might occasion conflicts.
Many have been the debates of the learned on how much influence the Lex Rhodia exercised on the medieval law of the sea. However, most of the problems Roman lawyers mulled over in Chapter 14.2 of the Digest were simply irrelevant to navigation in the Middle Ages. Conversely, the situations the maritime codes of the 13th century regulated were not touched on by Roman law. Indeed, medieval maritime codes often arrived at a solution to a problem which directly contradicted Roman jurisprudence; e.g.: Should the value of the jettisoned cargo be calculated at its price at purchase or its notional value in the port of destination? Should misadventure and attacks by pirates be included? Not much more than a faint echo of the Lex Rhodia can be perceived in the statutes of the 13th century.
Let us look at some of the details. What perils justified jettisoning cargo? Bergen (article 8) speaks of storms or valk (the technical term for the sea at its roughest) or other dangers which mandate lightening the ship. Hamburg (article 22) simply specifies an emergency, while Oléron (article 8) names only torment (storm). As can be seen, it was danger from the natural environment which was on the law-makers’ minds. By contrast, Venice (article 77) and Tortosa (article 30) apply the same rules when pirates are sighted. To be sure, the western and northern seas were not free of piracy, but perhaps it was a more prevalent danger in the Mediterranean. At any rate, it was only here that one could apportion losses of cargo occasioned by pirate attack, provided the ship itself escaped. However, this applied only to jettison with intent. If the pirates succeeded in capturing and plundering the ship, deliberate jettison obviously did not apply. For that reason, Roman law excluded such losses, invoking the principle casum sentit dominus and mandating that each owner had to bear his own losses. Venice (article 96) departed from this rule and allowed the apportionment of losses in cases of plundered goods. A further sub-case of general average is only to be found in Tortosa (article 32), namely deliberately running the ship aground. Clearly this was bound to damage the ship but could rescue human life and merchandise.
Was portage (Ger. ‘Führung’) included in general average? Portage was a form of remuneration for sailors, in lieu of paying them solely in the form of wages. It provided them with a small amount of freight room to ship their own goods, which they could sell on arrival on their own account. In the north, it was normal for sailors to be commercially active. Hence, Bergen does not address the question, since if all hasetar were simultaneously sailors and merchants – i.e. they performed their duties on board and were cut in on the profits of the voyage – there was no reason to include them explicitly in general average. By contrast, Tortosa (article 26) envisages no other form of remuneration than wages in cash. Finally, in Oléron and Hamburg, portage is included in general average. Sailors were recompensed if the goods they transported had been jettisoned, but they did not have to chip in if ‘their’ goods arrived safely. However, only Oléron (article 8) makes this contingent upon whether the sailor had conducted himself manfully in the face of danger, si defent en la meer cum un homme. In Hamburg (article 28) this condition is lacking, but instead the privilege is limited in value.
Was the ship included in general average? There were two systems in play: Mediterranean law had included the ship owner in general average since the days of Antiquity but northern maritime law did not. Götz Landwehr has shown that, within the realm of the Hanse, both systems were in operation around 1300, but in the end the Mediterranean rule gained the upper hand. Bergen (article 8) stuck with the northern system. Only shipping merchants were included in general average, while the ship owner had to bear his own losses. In the other three codes, the ship owner was obliged to contribute towards compensating merchants for jettisoned goods but could claim proportionate damages from them if the mast, the rigging or the anchor had to be cut in order to save ship and cargo.
Who decided if the preconditions of general average were met, and which procedure had to be followed? In Oléron (article 9), the shipmaster was required to call the merchants together if the situation warranted it and simply show them that the mast or the rigging had to be cut. By way of contrast, Hamburg and Tortosa required an a priori agreement in principle between shipmaster representing the ship owner and the shipping merchants. Otherwise the ship owners had to bear their costs alone. Hamburg (article 8), clearly viewed the older rule (the ship owner bears his risks alone) as the normal case. Any alteration (risk pooling between ship owner and merchants) had to be explicitly agreed upon by deliberate act (willekore). By the logic of the formulation (if not necessarily in reality), it would have been the exception to the case. This agreement could be made orally and, indeed, during the voyage, since it was by the testimony of those on board that the courts determined whether the agreement had been arrived at. Venice (article 95) states that jettison was only permissible cum consensu et voluntate majoris partis mercatorum et patronorum, employing for ‘jettisoning’ the Italian verb libellare in place of the Latin iactare. Tortosa (article 32) gives a vivid description of how general average could be agreed to in the face of a clear and present danger. Shipmaster and merchants gave their consent to running the ship aground in order to avoid greater danger and – at the same moment (cf. the quote at the beginning of this paper) – agreed on the ‘brotherhood’ of ship and cargo, que l leyn e ls avers sien jermans.
It would be a worthwhile, if formidable, task to pursue in detail the differences between the codes and the reasons for them. But this would require far broader treatment than feasible here, particularly if one were to delve into the numberless medieval variants of the principle of general average. For the moment, it is sufficient to say that all maritime codes examined here recognise the principle that sacrificing one’s own property in the common interest establishes a claim to compensation. Yet, however strongly they agree in principle, all five maritime codes of the late 13th century disagree stridently on the particulars. The rules are vividly formulated, but they differ to such a degree that it is impossible to posit descent from a common root or derivation from a common principle. In the West and the North, only the natural perils of the sea enter the picture, but in the Mediterranean the risks of piracy and plundering are included. In the North, the ship is not party to general average, while other codes permit it, providing a prior explicit agreement was made. Hamburg and Oléron protect sailors’ portage but made it contingent upon different conditions. In short, different experiences and power relations influenced the various rules. Many of them were, to all appearances, formulated on the hop, perhaps in the expectation that they would be modified or even abrogated altogether soon thereafter. This is an area of the law which, to a degree, can be traced back to Antiquity. But the late 13th century was a period when the rules about jettison changed quickly. The law-makers used the ancient rules as a template but adapted them creatively to their own needs and convictions.
The second central area of maritime law examined here is mariners’ labour law. Multi-faceted as it is, it defies systematic, detailed exploration. We can only investigate individual aspects which crop up in several codes: in particular the question of the remuneration of sailors. In the statutes we come across a number of different kinds of mariner. The first to be named are oarsmen and other mariners in the Mediterranean galleys. The Tortosa code is only interested in regulating discipline on board, and prescribing penalties for disobedience. In a word, Tortosa promulgates penal law (article 1 und 2). Even so, sailors are entitled to be paid wages, in contrast to the slaves, convicts of war and condemned prisoners who sat next to them on the rowing benches. The Venetian regulations were similar and only differ by providing more detail about remuneration for extraordinary tasks. On the opposite end of the scale there stand the Scandinavian hasetar, who, being mariners and stakeholders alike, are difficult to classify as subordinate wage-earners. They were independent contractors, entitled to a share of the profits (and liable for a share of any losses), who were only willing to follow the shipmaster’s directions – to keep watch or bail out the hold – in order to make the voyage possible (Bergen article 23, at the end of the maritime laws). Between these two groups lay the position of maritime employees in the Atlantic, the North Sea and the Baltic, who were contractually bound to obey orders but enjoyed a number of surprisingly modern rights.
In principle, sailors were remunerated for their labour by being paid wages in cash, or by being given the right to use part of the ship’s hold for their own goods (portage). Venice (article 21) seems to envisage a situation in which mariners were remunerated solely by portage. In Oléron, two articles, the one following immediately upon the other, mention both forms of remuneration. It seems that the sailors were not forced to choose one form or the other but were rewarded for their labour with a combination of both. But even with portage, the sailors had a choice. Venice (articles 50-52) and Oléron (article 18) let them choose between using their portage for their own freight (the word used is fretter, as distinguished from louwer (wages) in the following article 19) or leaving the use of their spot to the shipmaster. In other words, they could try their own entrepreneurial luck or take a cut of the ship’s freight. The following sentence underscores the mariners’ risk in the former case. They are to load their goods in a timely manner, so that the ship’s departure is not delayed. If they can’t find any goods to ship, the shipmaster bears no responsibility. This article 18 is noteworthy for a second reason. It is the only one which ends with the words et cest la custume (as opposed to jugement) en ceo cas – ‘and this is the custom in this case’. If we take this formulation at face value, we are forced to conclude that it is the only article not based on a court judgement. However, there is no further evidence which would enable us to determine the context in which the individual regulations of the Rôles d’Oléron arose. The question, therefore, has to remain open.
In Hamburg, article 9 regulates portage, specifying – port by port – the typical products sailors were permitted to stow in their portion of the hold. The case where a mariner is unable to find cargo for his portage is regulated to the sailor’s advantage. In this case, the shipmaster must give the mariner a cut of the freight. Hamburg also regulates sailors’ wages (article 6). These depend on the length of the voyage (Flanders-Norway and Flanders-Gotland 12 weeks, Hamburg-Flanders 7 weeks). Note that these are minimum wages: if the voyage lasted longer than anticipated, the code specified that the sailors were to receive supplementary wages each week. However, one must emphasise that the wording of article 6 is anything but unambiguous and consequently much debated among scholars. It is entirely possible that Hamburg sailors were remunerated both in the form of wages and portage.
The question of when wages were to be paid is important. After all, wage demands which had yet to be met were a form of insurance for the shipmaster that the sailors would not jump ship. In addition, it is difficult to see how the shipmaster could pay out wages before he had received the freight from the shipping merchants. This seems to be what Tortosa (article 42) is hinting at, as it regulates the order of actions to be undertaken in the final accounting at the end of the voyage. First, the shipmaster receives the freight. Then he pays the sailors. And finally, he pays those owed compensation. The rest is profit. Venice (article 80) emphasises that no sailor is allowed to quit before the end of the voyage. Balancing the scales, the following article 81 determines that a shipmaster who fails to pay the mariners their wages on time, owes them the duplum, double the wage rate. But even in this case, payment before the completion of the return of the ship to Venice is unlikely. On the other hand, Hamburg employs the word vor-loen. This could signify that at least part of the sailor’s wages was paid in advance. But did this really mean that a sailor could expect to be paid part of his wages at the beginning of the voyage? It would seem so, in view of the regulation in article 8 that a sailor who – by his own fault – is unable to perform his duties, is required to wedderkeren al sin vorloen (‘to return the entire advance’). That only makes sense if he had received an advance on his wages in the first place. The reason the Hamburg code names for this inability to perform one’s duties, and the subsequent penalty, is revealing: seasickness. Sailors were on the hook for their own stomachs.
Presumably the advance was a portion of the full wage, since at least some part of a sailor’s wages was paid out at the end of the voyage. This emerges from Oléron article 19, which determines that a shipmaster is allowed to retain the wages of any mariners who leave the ship in the outward destination port, unless they can post sureties for their return. This, too, is a measure designed to prevent sailors jumping ship. Venice (article 80) and Tortosa (article 1) are a good deal more rigorous. They permit the shipmaster to detain by force any sailor wanting to leave the ship without permission and even to go out and capture those who manage to make it off the ship. Anyone who left his ship did so, to put it in modern terms, at his own risk. A sailor on liberty who got into a fight and was injured could not hope for any form of assistance from the shipmaster, unless he had sallied forth at the latter’s behest (Oléron article 6). Even meals for those going ashore were regulated. Sailors received, as it were, a lunch package with exactly the rations they would have received on board. If they wanted a drink, they were on their own.
In principle, the labour contract was inviolable. Both sides were bound by it as long as the voyage lasted (Hamburg article 10). This is implicit in the regulations discussed above, which were designed to ensure that sailors literally and figuratively remained on board. However, these regulations also made it difficult for the shipmaster to get rid of an unsatisfactory sailor. Above all, he was not empowered to fire a sailor on his own authority but had to consult the other mariners, who would sit in judgement on their colleague (Oléron article 14), or the merchants, who had to agree to the firing by majority vote (maior pars mercatorum: Venice article 35). These arrangements were possibly intended to protect the rights of sailors but were surely principally motivated by the fact that being short-handed on deck posed a danger to all those on board.
The beginning of the return voyage is another intensively regulated area. Bergen’s code had to take cognisance of the fact that the hasetar would need to travel around on land to conduct their business. Therefore, article 7 regulates turn-around times, calculating them by tides. Normally, two high tides were the limit. This regulation reminds us that tides dictated sailing times in the northern seas where the range between high water and low water was considerable. Only exceptionally – in heathen lands if there was no existing danger to so doing – did ships wait three high tides before venturing forth. A watchman was charged with keeping an eye out for tardy sailors.
Conversely, if the ship was not ready to sail, the mariners had to wait. If they failed to do so, Bergen (article 9) subjected them to a fine, payable in equal shares to the shipmaster and the Crown. Fines payable to the authorities are only found in Bergen and Venice, and they exemplify the influence of the Crown and the Doge on maritime law. If the shipping merchants were responsible for the delay, having failed to deliver their cargo on time, the sailors received a quarter of the supplementary freight owed in such cases (Oléron article 22). Hamburg distinguished separate cases in determining whether the sailors were to be recompensed for waiting around. If the ship was entrapped by ice in Maarsen, just northwest of Utrecht, then the sailors had no claim to supplementary wages. Note that this is a rule originally devised by the Hamburg merchants trading with Utrecht which was turned into a general precept and inserted into the town’s maritime law. If the voyage was delayed because merchandise had not yet arrived, the shipmaster had to provide victuals to the sailors (both regulations in Hamburg article 17). If the shipmaster was forced to sell the ship in order to pay damages to the shipping merchants, the sailors’ wage demands took priority over the claims of the merchants (Tortosa article 9; the priority of wage claims is also dealt with in article 20 par. 2). If the ship was so heavily damaged that it had to be sold and the crew forced to wait for the arrival of another ship, the sailors were entitled to two weeks’ wages. After the end of the sailing season (11 November), they could at least claim one week’s wages (Hamburg article 11). Venice (article 82) stipulates that freight and wages had to be raised by a quarter – and the additional wages paid out forthwith – if a decision to remain overseas during the winter was reached by common accord (de communi voluntate). ‘Overseas’ meant here (and frequently elsewhere in Venetian maritime law) the Eastern coast of the Adriatic Sea.
Within the ambit of this discussion on wages also belongs the question of whether sailors had to be paid if they fell ill (Oléron article 7). If a mariner was so ill that he could not perform his duties on board, he was left behind on land but was entitled to full wages. If he died, his heirs inherited his wage claim. This article is full of detailed regulations on particular situations. These cannot but be the traces of the negotiations which led to the article. Let us list them. If the shipmaster was unwilling to delay sailing, he could leave the stricken crew member in the care of a ship’s boy or a woman hired for the purpose. He had to be provided with a lamp or a candle, in addition to victuals from the ship’s store. But he got no more than that. If he wanted to eat better, he had to pay for it himself. It is inconceivable that these regulations were not based on specific, real cases.
As we have seen, additional wages had to be paid if the voyage was delayed. But they were also due for performing tasks over and above the ordinary. After all, the contracts only obliged sailors to perform those tasks necessary for the safe voyage of the ship they hired onto. Part and parcel of this was the sailor’s duty to assist to the best of his ability in case of shipwreck. Only under this condition could the mariners hope for the assistance of the shipmaster, in particular in repatriating them (Oléron article 3). The situation was different if other ships lost cargo or equipment. If sailors were instrumental in recovery, they had a claim to a portion of the salvage. How large this portion was depended on the difficulty of recovery, i.e. whether the goods were recovered as flotsam or had been driven onto a reef or a sandbank, whether they were floating in a port or had washed up on land. In the last case, a sailor was in a delicate position, because the inhabitants of coastal regions often claimed the right of salvage, however bitterly the merchants contested this, and they were not above underscoring their claims with violence.
Bergen (article 20) regulates claims if an anchor is found and salvaged. If – despite notice being given in the nearest port – the owner cannot be found, then sailors and shipmaster, hasetar and styrimandr, each have a claim to half the value of the anchor. The article does not view this as a case of salvage but rather as a serendipitous opportunity to seize ownerless property and earn a little money on the side. However, if the owner of the anchor makes himself known and proves his claim with the help of two witnesses (i.e. with three oaths in all), then he can ‘redeem’ (lœysi) the anchor by paying half its value. The terminology and procedure correspond to the right of redemption in the case of stolen goods. Salvage is not mentioned at all.
In this context, a comparison between the maritime laws of Hamburg and Lübeck is instructive. In 1299, Lübeck adopted a large number of the regulations Hamburg had laid down in 1292, but not in this case. While Hamburg took the side of the ship owners, the shipmaster and the sailors, Lübeck favoured the shipping merchants. This had been apparent since 1259. Lübeck had sent a high-ranking delegation to Hamburg to complain about Hamburg’s treatment of its merchants, but Hamburg remained unmoved and communicated its legal views to Lübeck in writing. The opposing viewpoints are most clearly visible in the case of salvage. Hamburg (article 20) envisaged a claim to a twentieth if the salvaged goods had been washed up on land or had floated alongside the ship while it was at anchor but a full third if the goods were recovered on the high seas or on a reef or sandbank. By way of contrast, Lübeck was only ready to concede a twentieth if the goods were recovered on the high seas and not more than a hundredth if the cargo was recovered from a sandbank. The other cases were not mentioned at all. Presumably, Lübeck regarded the simpler forms of goods recovery as one of the normal tasks incumbent on a sailor, that is, one which did not generate any claim to salvage. The fact that the North Sea is subject to rougher weather and is consequently more dangerous than the Baltic may have played a role in these differences. But it is likelier that the division of labour between these two towns, later members of the Hanse, was the deciding factor. Particularly in the early period, Hamburg was to a significant degree the western satellite port of Lübeck, associated with transporting goods from the Baltic region westwards. In general, the fact that Hamburg’s maritime labour law was more extensive and detailed than all the other codes examined here is probably the result of the importance of Hamburg’s ship-owners and sailors. The unceasing debates about the distribution of the advantages and disadvantages of seaborne trade – and the case-by-case compromises the parties reached – are reflected most clearly in the lengthy catalogue of fees for loading and unloading ships (Hamburg article 16). To be sure, here the sailors’ contractual counterparties were not the shipmasters but the shipping merchants directly. It was up to them to load and unload their goods. Only once these were securely stowed on board did the shipmaster become responsible for them.
All in all, sailors emerge in the Hamburg and Oléron codes as a group of esteemed and forthright employees, whose interests had a significant impact on maritime law. Since their tasks, like those of miners, were dangerous but required special skills and much experience, mariners in the realm of the Northern and Western European seas were in a strong negotiating position. The special concern that the law shows in their potential to jump ship in an overseas port suffices to make this apparent. Moreover, they were not obliged to remain silent when competitions of interest cropped up for discussion. Indeed, maritime law was careful to include them in decision-making and arbitration. This very fact leads to our third central area, even if we are forced to forego discussing vivid, if less important, aspects of the law.
Is the ship swift enough to outdistance the pirates? Do the clouds on the horizon herald a howling storm? Will the visibly deteriorating cables of the crane with which goods are to be unloaded from the ship snap under the strain? The maritime law codes regulate a number of situations involving risk calculation and the decision whether to accept the risk and proceed. Often enough, those on board are to be included in the decision-making in these cases. So numerous are the situations which call for discussion by all parties that Goldschmidt sub-titled his 1888 article ‘the ship’s council’. By this he did not mean to posit a permanent institution but rather an ad hoc decision-making body charged with assessing risk in a number of specified situations. Over and above that, there were cases in which a conflict had already broken out and a decision had to be reached during the voyage or immediately after reaching land. Let us designate this group as ‘conflict-settling decisions’. More common, however, were regulations about who was authorised to decide whether to accept the risk and proceed, and what consequences flowed from this decision if it turned out to be disastrous. Let us call this group ‘decisions on the basis of risk assessment’.
Let us examine the conflict-settling decisions first. If the conflict – usually involving physical violence – lay in the past, the codes could only react. After all, sea voyages took place in a unique legal environment. On the one hand, any conflict which broke out during the voyage endangered the close cooperation which was essential for safety on the high seas. Clearly, sailors engaged in a brawl cannot attend to their normal tasks, and that could quickly spell disaster. Such conflicts had to be settled as soon as possible. On the other hand, once the ship had returned to land, any trial was predicated on the testimony of those on board. On the high seas, those on board were on their own, so that neutral testimony was effectively excluded. Both these aspects tended to enhance the role of the sailors.
The Rôles d’Oléron regulate the settling of conflicts on board most extensively. Articles 12 and 14 subject the sailors to the shipmaster’s judgment but in turn subject the shipmaster to the verdict of the mariners in cases where a conflict arises between him and a sailor. The shipmaster is not above the law. To be sure, there is a command structure on board, but it is limited in scope and the shipmaster is not permitted to violate the rules. Thus, a sailor has to accept being slapped or slugged by the shipmaster but only once. After that, he is allowed to defend himself. If, on the other hand, it was the sailor who initiated fisticuffs, the penalty was severe: a fine of 100 sous or amputation of the hand (article 12). The sailors’ verdict – la gard des mariners or la gard de la table (article 14) – determines how the sailor has to make amends (the amende) for his malfeasance but only after three warnings, symbolised by the shipmaster’s withdrawing of the table cloth from the defaulting sailor in full view of the rest of the crew and thus excluding him from the common table. Note that the shipmaster is not obliged to accept the amends as determined by the crew. If he refuses to do so and sets the offending sailor on land, the defaulter has the right to follow the ship (either on land or in another ship) and claim full wages (less the amends) when the ship is unloaded at its destination. In addition, the shipmaster is liable for any and all damages to ship and cargo suffered because he was unable to replace the defaulter with as able a seaman.
Transfer of liability also played a role in risk-assessment decisions. Should one accept the risk or avoid the danger? If the majority votes for caution (goods are jettisoned, the ship does not leave the safe haven, the frayed cable is not used), then there are obviously two alternatives: either accept the majority decision or not. In the latter case, liability is shifted to those with higher risk tolerance. The shipmaster who decides to flout the majority view and sail forth is wholly liable for any damages occasioned by a storm (Oléron article 2). The merchant who accepts a frayed cable is wholly liable for damages if it snaps (Oléron article 10).
Transfer of liability is also found in the other codes. The first articles of the Bergen code deal with decisions which have to be reached before setting out. First mandated is an objective test of the ship’s seaworthiness – the ship is deemed to be seaworthy if the hold has to be bailed no more than three times a day – but the sailors can disregard the result of this test if they so desire, and sail forth in a leaky ship. If the mariners, but not the shipmaster, consider the ship to be overloaded, the question can only be decided by two other shipmasters whose ships are lying in harbour (Bergen article 2). This solution only worked in practice because there was enough sea-going traffic in Bergen that two shipmasters could easily be found. Hamburg’s solution to the problem of overloading was similar. Just as was the case in Bergen, it is first and foremost the shipmaster’s responsibility to see to it that the ship is not overloaded (Hamburg article 23) but if the shipping merchants do not raise any objections, the shipmaster is not liable for any consequences of overloading. Conversely, the shipmaster is solely responsible for any jettisoned goods if gude lude had warned him at the outset that the ship lay too low in the water. These ‘good men’ – medievalists are reminded of the boni viri who make up a jury in early medieval law – were probably envisioned to be experienced mariners who were in the harbour at the time. In what order goods were to be unloaded in order to restore seaworthiness was determined in Hamburg (article 23) and in Bergen (article 2) on the basis of the principle ‘last loaded, first unloaded’. In this case the decision is mandatory (the ship has to be lightened), but it also transfers liability (if the shipmaster was warned, he is solely liable if overloading occasions jettison during the voyage).
Articles 3 and 4 in Bergen are also mandatory. It is the mariners who decide when the return voyage is to begin (provided the shipmaster is flexible and gives his approval). This decision is arrived at by majority vote of the mariners, even if it is a majority of one (Þo at einum auki: article 3). Article 4 employs the same phrase in the case of a dispute about the destination of the voyage: a situation which arose if the shipmaster had promised different destinations to different sailors (which meant that some hasetar would arrive at a destination they were not interested in). If the vote is tied, the question is to be decided by lot.
Also to be counted in the group of mandatory decisions is Tortosa’s ‘brotherhood’ of ship and cargo (article 32) principle discussed above. After all, deciding to pool risk constitutes a contract which establishes a claim to compensation. It has already been mentioned that jettison is dependent, in one way or another, on a collective decision amongst those affected. The cases cited in that discussion also relate to shipboard decision-making. It should be mentioned that Bergen (article 8) does not mention the agreement of the mariners but rather mandates the order in which goods are to be jettisoned. This differs from the Icelandic legal code Grágás, which was promulgated shortly before Iceland fell to Norway in 1262. While Article 10.2 stipulates the same order of jettison, it also requires the consent of the mariners. This definitely raises the possibility that the Bergen lawmakers consciously struck out the clause in 1272, which could be interpreted as the first evidence of the emergence of a command structure on board. The influence of the Crown on the Bergen code has already been mentioned.
Not to be neglected in this context is a unique, surprising case in which the minority is able to enforce its will. In article 24, the Hamburg code regulates ship-owning partnerships (Ger. ‘Partenreederei’), in which there is no single owner of the vessel but a number of parties share ownership. These shares are always counted in factors of two (½, ¼, ⅛ etc.). In part ownership, all decisions are reached by majority vote, but ‘majority’ means a majority of shares, not of persons, with the exception of the decision to weigh anchor. If it is the case dat de mit deme mereren dele dat schip wolde liggen laten (‘that the majority want to remain in port’), the minority can nonetheless enforce its will. It is not entirely clear in what sort of a situation this case might arise. It is conceivable that it applied in the context of a decision to sail despite threatening weather if the minority shareholder has a greater appetite for risk. A darker (but equally possible) explanation is that the majority might decide to delay sailing deliberately in the hope that the minority shareholder, unable to wait any longer, will be forced by financial duress to cash out (den anderen utdroten). This seems the more likely interpretation in view of the fact that the following article 25 deals with the question of dissolving a ship-owning partnership. Whatever practical effect article 24 had, and whatever it was intended to achieve, what makes it unique is the reason given for the rule: Wente men wiset io dat schip to water wart (‘because one knows that ships are made to sail on the water’).
That almost sounds like an old saw. But it is more likely to be a reference to a passage in the Digest (D 220.127.116.11). There, Pomponius employs the same argument in a different context, arguing that those who charter a ship are not liable for normal wear and tear, Navis est enim ad hoc paratur ut naviget (‘For a ship is built to sail on the water’). Since Pomponius uses the argument in a different context, it is clear that the Hamburg rule does not constitute an adoption of Roman law. But it is a plausible assumption that those who formulated the regulation in Hamburg were at least indirectly aware of the passage in the Digest. In any event, it appears to be true that, according to the Hamburg rule, a minority of the ship-owning partners can enforce its will on the majority, the shipping merchants and the crew, forcing them to accept the risk of a potentially dangerous voyage.
The first two articles of the Rôles d’Oléron again represent the two differing consequences of decisions taken on the basis of risk assessment. Article 1 regulates the case in which the shipmaster is forced to pledge some of the ship’s equipment in order to pay for repairs in an outward port (Ger. ‘Notbodmerei’). This is only permitted with the approval of the crew (par counseil des compaignouns de la nef): the ‘ship’s council’, as Goldschmidt would have formulated it. His choice of words is supported by the term counseil, which the source uses. Pledging the ship’s equipment, even if in part, robbed the sailors of their wage claims and the shipping merchants of the possibility of pursuing claims for delay. In view of this, Venice (article 37) only permits pledging the ship’s equipment cum voluntate et concensu (sic) majoris partis of the merchants and sailors on board. If they agree, there are no more barriers to pledging. However, in Oléron (article 2) the ‘ship’s council’ has the deciding voice in determining whether to weigh anchor in the face of threatening weather (a subject discussed above in regard to Hamburg). The description of the process of decision-making is vivid indeed and seems to suggest that the shipmaster is bound by the majority. Surprisingly, however, the last sentence allows the shipmaster to ignore the majority vote but burdens him with full liability for ship and cargo if he chooses to do so. It is worth noting in passing that in the Oléron regulation, those who are on board decide on accepting or rejecting the risk, while in Hamburg it is the ship owners, who stay safe at home, who get to decide.
Stepping back a pace or two, it is striking how much creativity went into the various solutions to the problem of decision-making and who among the interested groups (crew, merchants, owners, and shipmasters) were to be consulted on important matters. The disparity of the different solutions strongly suggests that all involved were experimenting. It is striking that 13th century law makers did not worship at the shrine of the ancients. The experience of the ancients, accumulated over centuries, and, indeed, the universally venerated models of classical Antiquity were roundly ignored. Roman law is conspicuous by its absence. The rules generated in the late 13th century, based on concrete experience, seem tentative and experimental. The regulations were negotiated ad hoc and tested in real life to see if they worked well. From port to port, the power and influence of different interest groups varied greatly. If law makers were forced to take the interests of sailors into consideration in one code, their colleagues elsewhere found that the ship owners and shipping merchants wielded greater influence. And if a monarch or a doge participated in the formulation of regulations, that too left its mark on the normative product. However multifarious the solutions were, the final impression is that all maritime codes endeavoured to strike a balance between the interests of those involved. There are a number of situations envisaged by the regulations in which the owners of the ship and the cargo and, in addition, the crew were involved in decisions about life and property. Let us recall the example of Tortosa, cited at the beginning of this paper, where shipmaster and merchants had to agree whether to run the ship aground or not. The day was as yet far distant when the captain would go unquestioned, absolute ruler of his ship. In Germany today, general average requires nothing more than captain’s order (§ 588 Abs. 1 HGB).
Why do legal historians compare laws and legal systems? What do they hope to achieve? ‘Compare and Contrast’ is surely the oldest game in historical studies, and nothing in the passage of time has succeeded in abating legal historians’ appetite for it. To cite just a few current examples for comparative work: Appellate jurisdiction in Early Modern Europe, slavery in Antiquity and Early Modern serfdom in Europe or Latin America, feudal law in England and on the continent, and forms of life insurance in Europe since the 17th century have all been the object of comparative studies. The result is invariably a list of similarities and differences. But, one asks, what do legal historians focus on? Is it the differences or the similarities which are paraded as the fruits of these investigations? The answer depends not only on what comparisons are essayed but also on the intentions and interests of the scholars themselves. Many comparisons are undertaken in order to influence present-day law and in the hope of inspiring future lawmakers by presenting them with solutions to contemporary problems drawn from the past. Other scholars compare in order to discover what influences were at play, and which systems of law were derived from earlier ones, all in the hope of reconstructing family trees of law and discerning separate regional legal systems.
In this paper, comparative analysis has been primarily employed to learn from the differences in legal systems. Contrasting rules in different codes helps to put each into perspective. Thereby, the creativity which led to particular solutions – and the local power relations – are etched all the more sharply. This paper set out to undertake a cross-sectional analysis of the maritime codes of the late 13th century, specifically in order to investigate the many facets of the law at the time when it was first (or nearly so) committed to writing. What, then, are the results of this comparative analysis of commercial maritime law? Three points suggest themselves.
First of all, the law proceeded case by case. In each instance it sought to reconcile conflicting interests. This is most apparent in the Hamburg, Oléron and Tortosa codes. The law makers were not of a mind to erect a structure of abstract, universally applicable rules which would solve any and all conceivable problems which might crop up in the future. They wanted to settle concrete conflicts in the here and now. Consequently, the laws they produced do not constitute systematic codifications in the modern sense, nor do they make any attempt to cover all possible cases. It is symptomatic of the character of the medieval law of the sea that the Oléron and Hamburg maritime codes did not form part of a larger code (Hamburg’s maritime law was only subsequently tacked on to the town’s by-laws). The case of Tortosa is not quite so clear, but the maritime code’s position at the very end of the Costums de Tortosa and, above all, the Latin title of the text (which was otherwise written entirely in Catalan) – Isti sunt consuetudines et usus maris – suggest that the Catalan law of the sea originally arose independently and was only afterwards tacked onto the end of the collection of the customary laws of Tortosa. The question of origins is not unimportant. If, after all, an independent law code was issued for a clearly delimited area of the law like seaborne commerce, then it is likely that interested parties were able to make their influence felt on the contents.
The situation is different for the two codes on which the heavy hand of the authorities lay. The king of Norway, fired by the overarching legislative ambition (noteworthy in the 13th century) of providing his entire kingdom – towns and countryside alike – with a truly national, more or less unitary, code of laws, only turned to maritime law at the end of his urban legal code. Here, too, the maritime law is prominently displayed as an autonomous area of the law by its very position at the end of the code. The Crown also saw to it that the content of the maritime laws reflected its wishes. The Venetian code is different altogether. Alone among the codes examined here, it regulated all aspects of seafaring (military and commercial), in particular in those regards which were important for the state. This is quite close to a codification of the law in the modern sense – and worlds apart from the case-by-case approach of Hamburg and Oléron. The fact that the individual articles in the Venetian and Norwegian law codes were supplied with rubrics (conspicuously lacking in the other three codes) suggests that they were part and parcel of a far-reaching structure of governance envisaged by interventionist authorities. Presenting maritime law as a system, consciously constructed to form a logically consistent whole, is characteristic of the Venetian and Norwegian codes but is all but totally lacking in all the others.
The very character of the legal codes gives rise to the problem of how to present them. This paper has sorted the case-by-case regulations of the maritime codes into three categories for purposes of comparison. This could easily conjure up the impression that the individual rules could be pieced together like parts of a mosaic to form a complete picture of the medieval law of the sea. This would be a gross error. It is simply not permissible to fill a gap in the maritime code of Bergen or Oléron with a conveniently appropriate rule from Venice or Hamburg. If a particular problem is not dealt with in one of the codes – which were more extensive in the Mediterranean but briefer in the northern and western oceans – then we are obliged to respect the silence of the sources.
Second, it will be noted that this paper has dealt only with the late 13th century. Were we to proceed to the 14th century, the picture would be quite different indeed, particularly in the case of Catalan and Aquitanian maritime law. Around 1300, the Rôles d’Oléron expanded their sphere of influence to embrace all of the northern and western European seas, Northern Spain, Northern France, England, Scotland and Flanders (where they were translated into Flemish), and, indeed, the Hanseatic realm. However, they did not displace more ancient, local rules altogether. This created a multi-layered legal situation, whereby different systems of maritime law could be applied to one and the same problem. If the traditional local rules and the regulations of the Rôles d’Oléron cross-pollinated one another, the situation became even more complicated.
At about the same time, the Costums de Tortosa were absorbed into the Llibre del Consolat de Mar of Barcelona and Valencia which, in turn, became the universal shipping code in all Christian areas of the Mediterranean. In short, the Late Middle Ages witnessed a certain tendency towards the standardisation of the law over broad regions of ever-increasing ambit. While this was not consistent or universal, exclusively local maritime by-laws which differed greatly from port to port were, by now, a thing of the past. They were supplanted in the late 13th century by written laws valid for broader regions. This cross-pollination of originally autonomous legal systems was doubtless a consequence of progress in shipbuilding and commercial techniques and, above all, the immense expansion of trade in the course of the Commercial Revolution. The increase in literacy and the rapid diffusion of manuscripts of the most important codes (Llibre del Consolat de Mar in the Mediterranean and the Rôles d’Oléron in the Atlantic) also played their part in the process.
Since this paper has presented a snapshot of the law of the sea within the confines of a narrow time frame, it did not try to capture the staggering dynamism of maritime law in the Late Middle Ages. The law of the sea was amended and unceasingly adapted to the changing circumstances of seaborne trade and shipping.
Third, there is a need for a synthesis of the medieval law of the sea. Many scholars shy away from a broad-brush treatment, preferring the comfortable sanctuary of their own, circumscribed field of expertise. But if we limit ourselves to those eras, areas and disciplines we know best, the spark will never bridge the gap between professional (legal) historians and the educated public. The fact that most investigations of the law of the sea focus exclusively on one region makes Goldschmidt’s light shine all the more brightly. After all, he at least attempted a ‘universal’ approach. Inspired by his example, this paper has entered new territory and risked to compare the law of the Latin Mediterranean with that of the outer European seas. The results are encouraging. It proved possible to illuminate: the advantageous legal status of sailors in Hamburg and Oléron; the different strategies for settling conflicts on board, and retaining crew until the end of the return voyage; the tasks of the Mediterranean ship’s scribes; the different decision-making processes employed in deciding whether to set forth despite threatening weather; and the consequences of the presence of the heavy hand of the state in Venice and Bergen. The logical next step would be to widen the scope of the investigation to include Byzantine and Arab maritime codes.
However, pursuing this noble goal is not without its price. There is a danger that many subtleties will be lost. By its very nature, the law of the sea employed (and generated) technical terms in a daunting number of languages. In order to bring this before the reader’s eye, this paper has repeatedly quoted passages in the original languages, be they Medieval Latin, Catalan, Anglo-Norman, Low German or Norwegian. Nowhere did we find technical terms common to most, if not all these languages, with the sole exception of the Arabic hawar, which entered all European languages. Rather, the opposite was the case. Each code of maritime law possessed its own unique terminology. Danger lurks even in seemingly harmless blanket terms like ‘shipmaster’, ‘sailor’ or even ‘ship’, since using them ploughs over subtle differences, even if they cannot be wholly avoided in a comparative investigation.
It is not only the subtleties of language and terminology which suffer under this broad-brush treatment. Important details, local peculiarities and scintillating, but evanescent ideas all tend to get neglected although they are, after all, what makes studying the Middle Ages so fascinating. A simple comparison will make this plain. Consider the modern principle that a debtor is required to exercise due diligence, and contrast that with the vivid description of the obligation of the shipmaster to take proper care of the cargo entrusted to his care as set out in chapter 67 of the Barcelona Llibre del Consolat de Mar. There, it is laid down that a shipmaster is liable for all damage caused by rats if he neglects to keep a cat on board. Further details follow in the next article. If the cat dies during the voyage, the shipmaster is only off the hook if he acquires a replacement feline in the very next port. But the Llibre is not alone in illuminating general principles with vivid examples anchored in the experience of real people. It is joined by the regulation from the Costums de Tortosa (1272), with which this paper began. The notion that in order to pool risks at sea, the goods had to be declared to be the siblings of the ship (que l leyn e ls avers sien jermans), is a priceless example, which, alas, was abandoned by the Llibre del Consolat de Mar in the following century.
As these examples demonstrate, this paper has presented a snapshot of the law of the sea in a particular, brief moment. It examined a cross-section of regulations at the moment when rules and regulations were first committed to writing but at the very time when maritime law itself was subjected to one dizzying alteration after another. Most importantly, that the law of the sea witnessed a transformation from oral to written form in the late 13th century (in Italy in the 12th) means that a good number of the regulations investigated here still visibly bear the traces of their earlier existence as part of an oral legal tradition. Specific and case-based as they are, they are easy to remember but difficult to apply to other, unregulated cases. The age of oral law might have been on the wane but not without casting a long shadow over our sources. The medieval law of the sea, as particular (and peculiar) as it may seem with its ship’s cats and seasick sailors, is of fundamental importance for an appreciation of the relation between oral and written law. And that is one of the most important topics in the legal history of the Middle Ages.
* Without the unstinting support graciously offered by a number of people, the widely dispersed and linguistically challenging sources would have defied inclusion in this paper. Particularly rebarbative was the Catalan law of the sea. Hence, my heartfelt thanks goes out to Ignacio Czeguhn, Betina Gaedke, Aniceto Masferrer, Laura Obradors Noguera, Margarita Serna Vallejo and Josep Serrano Daura for assisting my faltering steps in unraveling the maritime code of Tortosa. The Venetian code, written in Middle Latin, but full of Italian loan words, would have been beyond me but for the assistance of Lisa Cordes. Anika Auer, Sonja Breustedt, Philipp Höhn, Alexander Krey, David von Mayenburg, Peter Oestmann, Joachim Rückert and Michael Stolleis read through earlier drafts, Stuart Jenks translated the text into English and offered additional advice, Sarah Mainka translated an earlier draft of the paper, and Christoph Cordes and Sam McIntosh helped me with the final revision. Many thanks to all for their help, and my apologies to those who I forgot to mention here! – A German version of the article was published under the title ‚Die Regelung von Interessenkonflikten im Seerecht des späten 13.Jahrhunderts. Ein Vergleich, in: Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung (ZRG.GA) vol. 137 (2020), p. 52-90.↑
- A word on terminology. This paper understands ‘the law of the sea’ to be commercial law alone, excluding international treaty law and the law of war. By contrast, ship law is included, but the widespread differentiation between ship law and maritime law (cf. the title of the Hanseatic maritime law of 1614 ‘Der ehrbaren Hanse-Städte Schiffs-Ordnung und See-Recht’) was ignored. The two areas these realms of maritime law regulate – on the one hand ship law, which deals with life on board and maritime labour law, and on the other the commercial law of the sea, which deals with the relations between merchants who transport their goods and pay freight, and the ship owners (in the Hanseatic world normally ship-owning partners who own a notional portion of the ship) who appoint the shipmaster and normally view him as their representative on board – are both within the scope of this paper.[↑]
- Edited by Riccardo Predelli und Adolfo Sacerdoti, Gli statuti marittimi veneziani fino al 1255, in: Nuovo archivio veneto, n.s., T. 4, 1903.[↑]
- Edited by Jesus Massip, Costums de Tortosa, 1996, p. 497-516; translation into modern Spanish by Ramon Foguet, Código de las costumbres escritas de Tortosa, 1912, p. 477-500.[↑]
- Edited and translated by Karl-Friedrich Krieger, Ursprung und Wurzeln der Rôles d’Oléron (Quellen und Darstellungen zur hansischen Geschichte N.F. vol. 15), 1970, p. 123–145.[↑]
- Edited and translated by Frank Eichler, Das Hamburger Ordeelbook von 1270 samt Schiffrecht nach der Handschrift von Fredericus Varendorp von 1493 (Kopenhagener Codex), 2005, p. 339-375.[↑]
- Edited and translated by Rudolf Meissner, Stadtrecht des Königs Magnus Hakonarson für Bergen (Germanenrechte Neue Folge, Abt. Nordgermanisches Recht, vol. 3), 1950, p. 258-303.[↑]
- Tortosa article 32. Above all, Levin Goldschmidt, Lex Rhodia und Agermanament. Der Schiffsrath. Studie zur Geschichte und Dogmatik des Europäischen Seerechts, in: ZHR 35 (1888), p. 37-90 and 321-395, is to be credited with digging up this source.[↑]
- Albrecht Cordes, Lex Maritima? Local, Regional and Universal Maritime Law in the Middle Ages, in: Wim Blockmans / Mikhail Krom / Justyna Wubs-Mrozewicz (eds.), The Routledge Handbook of Maritime Trade around Europe 1300-1600. Commercial Networks and Urban Autonomy, 2017, p. 69-85; idem, article: Lex mercatoria, in: HRG III, 2nd ed. 2016, col. 890-902. See also idem / Philipp Höhn, Extra-Legal and Legal Conflict Management among Long-Distance Traders (1250-1650), in: Heikki Pihlajamäki / Markus D. Dubber / Mark Godfrey (eds.), The Oxford Handbook of European Legal History, 2018, p. 509-527.[↑]
- Krieger (n. 4 above).[↑]
- Towards the end of the 1990s there was a lively, even caustic debate about the relationship between legal history and comparative law. A post-mortem of the results of these battles is offered by Phillip Hellwege, A Comparative History of Insurance Law in Europe. A Research Agenda (Comparative Studies in the History of Insurance Law – Studien zur vergleichenden Geschichte des Versicherungsrechts Bd. 1), 2018, p. 10 f.; reviewed by Albrecht Cordes, CHILE und die Geschichte des Versicherungsrechts, in: Rechtsgeschichte – Legal History Rg 27 (2019), p. 375-377. In the course of time, hot-headed polemics tailed off, being replaced by intradisciplinary harmony chiefly motivated by the challenge of globalisation, which, after all, both groups face. On this, see Thomas Duve (ed.), Symposium Legal History and Comparative Law. A Dialogue in Times of the Transnationalisation of Law and Legal Scholarship, in: The American Journal of Comparative Law 66 (2018) (https://academic.oup.com/ajcl/issue/66/4, accessed on 5 June 2020). While truly comparative studies in legal history are perhaps still too rare, the comparative approach is accepted, at least in principle, irrespective of their usefulness for comparison of modern law. Today, the flag is carried by the European Society for Comparative Legal History (ESCLH), which signals its ambitions by the very title of its journal Comparative Legal History (CLH). On this, see Thomas Duve, Legal traditions: A dialogue between comparative law and comparative legal history, in: CLH 6 (2018), p. 15-33 (https://www.tandfonline.com/doi/full/10.1080/2049677X.2018.1469271, accessed on 5 June 2020). This state of affairs is paralleled by the situation in history in general, where the methodology and purpose of the comparative approach were long the subject of vigorous debate. See Hartmut Kaelble, Historischer Vergleich, in: Docupedia-Zeitgeschichte, 2012 (http://docupedia.de/zg/kaelble_historischer_vergleich_v1_de_2012, accessed on 5 June 2020) and the contributions of the protagonists discussed there from Marc Bloch and Jürgen Osterhammel down to Heinz-Gerhard Haupt and Jürgen Kocka. In terms of the typology of comparisons suggested by Charles Tilly (discussed at n. 7 in Kaelbles article), this paper is probably to be classified as an individualising comparison, or perhaps better as a comparison of variation.[↑]
- Hans-Peter Haferkamp, article: Natur der Sache, in: HRG III, 2nd ed. 2016, col. 1844-1847.[↑]
- The term ‘Urge to codify’ was first coined by Sten Gagnér, Studien zur Ideengeschichte der Gesetzgebung, 1960, p. 288 in relation to canon law. In regard to German legal history, Karl Kroeschell signaled by the very division of his three volumes (vol. 1: to 1250, vol. 2: 1250-1650, vol. 3: 1650 to present) his conviction that 1250 constituted a break in continuity more significant than the transition from the Middle Ages to the Modern period around 1500.[↑]
- This is not to say that these areas are unimportant. Quite the contrary: it is essential to extend the scope of studies of the law of the sea beyond the borders of the Latin Christian world. For an introduction to the maritime law of the Byzantine Empire, see Günter Weiß, article: Seerecht I. Byzanz und östliches Mittelmeer, in: Lexikon des Mittelalters VII, 1995, col. 1687 f. The most prominent scholar of Arab maritime law is Hassan Khalilieh. See his most recent publication: Islamic Law of the Sea. Freedom of Navigation and Passage Rights in Islamic Thought, 2019.[↑]
- Goldschmidt (n. 7 above).[↑]
- Levin Goldschmidt, Universalgeschichte des Handelsrechts, 1. Lieferung (Handbuch des Handelsrechts, 1. Band: Geschichtlich-literarische Einleitung und die Grundlehren), 3rd ed. 1891.[↑]
- The quote at the outset of this paper is to be understood as the author’s genuflection before Levin Goldschmidt. The analysis of the substance of his article will be presented around n. 43.[↑]
- Edda Frankot, ‘Of Laws of Ships and Shipmen’. Medieval Maritime Law and its Practice in Urban Northern Europe, 2012.[↑]
- This is decidedly not the view of Carsten Jahnke, Hansisches und anderes Seerecht, in: Albrecht Cordes (ed.), Hansisches und hansestädtisches Recht (Hansische Studien Bd. 17), 2005, p. 41-67.[↑]
- Julia Schweitzer, Schiffer und Schiffsmann in den Rôles d’Oléron und im Llibre del Consolat de Mar. Ein Vergleich zweier mittelalterlicher Seerechtsquellen (Rechtshistorische Reihe Bd. 331), 2007; Margarita Serna Vallejo, La correspondencia entre los contenidos de los rôles d’Oléron y el texto más antiguo de las costumes de mar del llibre del consolat de mar, in: INITIUM. Revista catalana d’història del dret vol. 20 (2015), p. 159-204; Vitus Huber, „Beute und Conquista“. Die politische Ökonomie der Eroberung Neuspaniens, 2018, p. 65-67.[↑]
- Götz Landwehr, article: Seerecht (Seehandelsrecht), in: HRG IV, 1. Aufl. 1990, col. 1596-1614. See also Albrecht Cordes, article: Seerecht, in: Lexikon des Mittelalters VII, 1995, col.1688 f., written on the basis of Landwehr’s article.[↑]
- Both titles are attested in the manuscript tradition. See Jean-Marie Pardessus (ed.), Collection de lois maritimes antérieures au XVIIIe siècle, vol. 5, 1839, p. 21, n. 6. Pardessus’ monumental, six-volume edition (1828-1845) includes sources on maritime law all over Europe, published in the original languages, but frequently flanked by a translation into French, and an in-depth commentary in the introductions to the individual sources and footnotes to the individual texts. For its time, this was a pioneering project, once which can be accessed on the web under https://numelyo.bm-lyon.fr/f_view/BML:BML_00GOO0100137001100010938 (accessed on 5 June 2020). For the code of Venice (1255), I have used the edition of Predelli and Sacerdote (see n. 2 for the bibliographical reference). Note that their numbering of the articles differs from Pardessus’ because they do not count articles whose rubric (de eodem) signals that they are mere continuations. Although both editions of the Venice code print differing rubrics, they are largely identical.[↑]
- This is most apparent in Venice article 28, which interdicts all forms of action at law against sailors on active service.[↑]
- Frederic C. Lane, Maritime Law and Administration, 1250-1350, in: Studi in onore di Amintore Fanfani vol. 3, 1962, p. 21-50, reprinted in idem, Venice and History. The Collected Papers of Frederic C. Lane, 1966, p. 227-252. See also the German translation, idem, Seerepublik Venedig, 1980, p. 96 f.[↑]
- Currently, the standard edition is Massip (n. 3 above). The text, written in old Catalan and correspondingly difficult to understand, has been translated into Spanish by Ramon Foguet und José Foguet Marsal, Código de las costumbres escritas de Tortosa, 1912, p. 477-500. Sabine Philipp-Sattel, Parlar bellament en vulgar. Die Anfänge der katalanischen Schriftkultur im Mittelalter (ScriptOralia 92), 1996, p. 57-74, placed Tortosa in its political and linguistic context.[↑]
- For a conspectus of the forty articles which the Llibre del Consolat de Mar lifted from Tortosa, see Bienvenido Oliver Historia del derecho en Cataluña, Mallorca y Valencia. Codigo de las costumbres de Tortosa, vol. 3, 1879, p. 631-648. The latest edition of the Llibre del Consolat de Mar was published by Germà Colón und Arcadi García Sanz, Llibre del Consolat de Mar. Edició del text de la Real de Mallorca, amb les variants de tots els manuscrits coneguts, 2001. This edition was reprinted (together with the Antonio de Capmany’s older (1791) edition) by Margarita Serna Vallejo (ed.), Textos jurídicos marítimos medievales, 2018, p. 59-554. The edition is accompanied by an in-depth introduction to the material and is flanked by an edition of the Rôles d’Oléron in the original language and in Spanish translation, ibid. p. 940-980.[↑]
- Goldschmidt (n. 7 above).[↑]
- Bienvenido Oliver (n. 25 above), p. 227-301. Recently, Tortosa’s maritime law was invenstigated by Josep Serrano Daura, El dret mercantil marítim en els Costums de Tortosa, in: La mediterránia de la corona d’Aragó, Segles XIII-XVI. VII centerari de la sentencia arbitrae de Torrellas, 1304-2004, 2005, p. 569-582.[↑]
- Krieger (n. 4 above), p. 119 f., considers whether the name might stem from a confusion with another code called ley Oliroun, which deals with crimes committed at sea, but in the end comes to the conclusion that in fact Oléron was the place where the original copy was housed, because Oléron lies on the border between the English (Bordeaux) and French (La Rochelle) spheres of influence. In this, he is seconded by Thomas Heebøll-Holm. Ports, Piracy and Maritime War. Piracy in the English Channel and the Atlantic, c. 1280 – c. 1330 (Medieval Law and Its Practice 15), 2013, p. 127-134. Robin Ward, The World of the Medieval Shipmaster. Law, Business and the Sea c. 1350 – c. 1450, 2009, p. 9-26 views the Rôles d’Oléron from the English perspective. The new book by Tom Johnson, Law in Common. Legal Cultures in Late-Medieval England, 2020, includes a chapter on ‘Maritime Legal Culture: Expertise and Authority’ (p. 86-118). Disappointingly the author treats this subject from a purely national perspective and does not include any non-English literature – an insular approach to an international subject. More information about the practical impact of the Rôles might be gained by examining the numerous petitions from Gascony to the Parliament in Westminster and the court proceedings noted in the Gascon rolls (Rôles Gascons, ed. by Francisque Xavier Michel et al., 1885 ff.); information kindly provided by Stuart Jenks.[↑]
- Krieger (n. 4 above), p. 12-17, considers the copy in the Liber Horn (Guildhall Library, London) to be the oldest surviving manuscript. Text and translation into German ibid, p. 123-145. For a summary of research and publications from 1970 onwards see Gisela Naegle, article: Oléron, Seerecht von, in: HRG IV, 2nd ed., 25th part, 2017, col. 144-148. Margarita Serna Vallejo has investigated the extension of the influence of the Rôles d’Oléron to northern Spain. She lists the relevant articles in the bibliography of her edition (n. 25 above).[↑]
- Johann Martin Lappenberg (ed.), Die ältesten Stadt-, Schiff- und Landrechte Hamburgs, 1845, repr. 1966, p. CXXXVII-CXLVII and 75-86; Rolf Sprandel (ed.), Quellen zur Hanse-Geschichte (Ausgewählte Quellen zur deutschen Geschichte des Mittelalters. Freiherr vom Stein-Gedächtnisausgabe vol. 36), 1982, p. 397.[↑]
- Eichler (n. 5 above), p. 339-375, with references to the older articles by Götz Landwehr and Heinrich Reincke. A dissertation supervised by Landwehr is also useful: Carolin O’Sullivan, Die Ahndung von Rechtsbrüchen der Seeleute im mittelalterlichen hamburgischen und hansischen Seerecht (1301-1482) (Rechtshistorische Reihe vol. 305), 2005.[↑]
- Meissner (n. 6 above), p. XIX.[↑]
- Meissner (n. 6 above) translates hasetar as ‘Schiffsgenosse’ (‘ship companion’). However, the word ‘Genosse’ resonates with Germanic connotations. In view of the daunting complexity of the subject of ‘associations’ (cf. Bernd Schildt, article: Genossenschaft, in: HRG II, 2nd ed., col. 103-110) it is anything but clear that the relationship between those aboard a ship satisfies the exacting institutionalising criteria we usually associate with an ‘association’ (‘Genossenschaft’). Further research is needed.[↑]
- See n. 6 above, p. 258-301 and XLI – XLVII. See n. 6 above, p. 258-301 and XLI – XLVII. The older fragments which were taken up by the Bergen code are edited by Meissner. The first of these is fragment IV of the Bjarkeyjar rettr, the law of Birka, see Meissner 450-457, article 9. The second is the farmannalǫg of king Marcus Jónsbók, which was promulgated for Iceland, which the Norwegian Crown had just acquired, ibid. p. 459-481, article 28. Maritime law is also to be found in the Grágás, the Icelandic law book which is just slightly older than the Bergen code. See Andreas Heusler (ed.), Isländisches Recht – Die Graugans, 1937. Max Pappenheim authored a number of articles on Nordic maritime law, among others ‘Stýrimenn und hásetar im älteren westnordischen Seeschiffahrtsrecht’, in: Deutsche Islandforschung vol. 1, 1930, p. 246-282. Götz Landwehr who died in 2017 left an unfinished manuscript on Icelandic and Norwegian Maritime law of the 12th and 13th c. behind whose fragments are important enough to deserve to be published.[↑]
- In Germany, maritime labour law has been regulated by the Seearbeitsgesetz since 2013. Before that, by the traditional Seemannsgesetz.[↑]
- Today this is regulated by §§ 574-587 of the German Handelsgesetzbuch (HGB). See, in particular § 576 par. 1 HGB: „Sind die Bergungsmaßnahmen erfolgreich, hat der Berger einen Anspruch auf Zahlung eines Bergelohns“ [if salvage is successful, salvagers have a claim to cash compensation for their efforts].[↑]
- § 481 HGB regulates freight contracts, which is one of the forms of transport contract regulated in the HGB.
„Abs. 1: Durch den Stückgutfrachtvertrag wird der Verfrachter verpflichtet, das Gut mit einem Schiff über See zum Bestimmungsort zu befördern und dort dem Empfänger abzuliefern.“
„Abs. 2: Der Befrachter wird verpflichtet, die vereinbarte Fracht zu zahlen.“[↑]
- A number of other topics would reward investigation. The ship’s scribe, known in the 13th century in the Mediterranean and nowhere else, is interesting in view of his many tasks. Moreover, it is his notes in the ship’s log which provide the only form of proof regarding events during the voyage and constitute the only basis for calculating profit and loss. The question of overloading – which inherently entails a conflict between profit maximising (which is risky) and seaworthiness – is touched on virtually everywhere and everywhere answered differently. Here, it can only be discussed in the context of decisions on the basis of risk assessment. The list of riveting topics could be extended easily.[↑]
- This is the normal understanding, which is exemplified in § 588 of the German HGB. This regulation contains a legally binding definition and envisages that the owners of the ship (and fuel) and those shipping goods:
„Abs. 1: Werden das Schiff, der Treibstoff, die Ladung oder mehrere dieser Sachen zur Errettung aus einer gemeinsamen Gefahr auf Anordnung des Kapitäns vorsätzlich beschädigt oder aufgeopfert oder werden zu diesem Zweck auf Anordnung des Kapitäns Aufwendungen gemacht (Große Haverei), so werden die hierdurch entstandenen Schäden und Aufwendungen von den Beteiligten gemeinschaftlich getragen.“
„Abs. 2: Beteiligter ist derjenige, der im Zeitpunkt der Haverei Eigentümer des Schiffes oder Eigentümer des Treibstoffs ist oder der die Gefahr trägt, dass ein zur Ladung gehörendes Frachtstück oder eine Frachtforderung untergeht.“
German law also includes the concept of the ‘Kleine Haverei’ (§ 621 HGB old version) which includes all costs of a voyage, e.g. pilotage, docking fees etc. In the absence of a prior, explicit agreement, these are not pooled.
The term is nuanced in the Venice code. There it is stated that a particular loss non sit in varea (article 74) or, conversely, that another item sit in avariam (article 77). The word (a)varia signifies less the act of sacrificing goods in an emergency but rather the entirety of the goods for which risk is pooled.[↑]
- Transmitted in the Digest (Maec. D 14.2.9), where the emperor recognises that the Lex Rhodia is valid Roman law. On the Lex Rhodia see Max Kaser/Rolf Knütel/Sebastian Lohsse, Römisches Privatrecht, 21st ed. 2017, recital 42.31 and Jacek Wiewiorowski (ed.), Roman Maritime Law, Maritime Legal Tradition and Modern Legal Issues (Gdańskie studia prawnicze 3), 2019 with a number of helpful contributions by various authors.[↑]
- Landwehr (n. 20 above), col. 1601, emphasises the similarities between the Lex Rhodia and the Rôles d’Oléron; Goldschmidt (n. 7 above), p. 342 f. und Krieger (n. 4 above), p. 82 f. the differences.[↑]
- It is conceivable that this extension of general average can be traced to Byzantine influence, Pardessus (n. 21 above), p. 53, n. 2. Since Greek terms also crop up in Pisan maritime law in the 12th century, the idea is not to be rejected out of hand: Stefania Gialdroni, Propter conversationem diversarum gentium. Migrating words and merchants in medieval Pisa, in: id., Albrecht Cordes et al. (eds.), Migrating Words, Migrating Merchants, Migrating Law. Trading Routes and the Development of Commercial Law, 2020, p. 28-53.[↑]
- The situation in which a ship runs aground and is thereby damaged is also dealt with in Oléron article 9 but in a different context. If the ship runs aground because of delays occasioned by long arguments between the shipmaster and the merchants about cutting the mast or the rigging, then the merchants had to pay the freight charges in full, even though the ship did not reach its destination. This exception from the rule of partial freight (part, usually one half, of the freight is due if the voyage was interrupted by force majeure) was intended to prevent disputatious merchants from disrupting the voyage.[↑]
- At first sight, Venice article 74 seems to stand in contradiction to this. There it is stated in regard to the shipmaster’s losses (occasioned by cutting the mast etc.) illud non sit in varea. It would seem, then, that the shipmaster had to bear the costs of his sacrifice alone. However, it appears that the decisive word non was inserted into the text subsequently, Pardessus (n. 21 above), p. 47 n. 4.[↑]
- Götz Landwehr, Die Haverei in den mittelalterlichen deutschen Seerechtsquellen, 1985, p. 41-50.[↑]
- This passage is not included in the manuscript Eichler used, the ‘Rotes Buch’ (1301), but it is attested by parallel manuscripts: Eichler (n. 5 above), p. 365, n. 1639: den willekore scholen tughen de an deme schepe do weren.[↑]
- Schweitzer (n. 19 above) provides an in-depth discussion of this in regard to Oléron and the Llibre del Consolat de Mar, which, as noted, is partially based on the Tortosa code.[↑]
- In this context, a more fine-grained analysis is possible. First, in the Mediterranean, there were rules about passengers, i.e. about the transport of people as well as of goods. The western and northern codes never touch on this subject. Second, the Mediterranean codes distinguish a number of groups of shipmates between the simple mariners and the shipmaster. The ship’s scribe played an important role (in Tortosa article 8 et passim: escriva, in Venice article 41 et passim: scribanus). In Tortosa (article 2) we meet with a comit de la galea, some sort of master oarsman, and in Venice, two drummers, trombatores, were required to be on board in order to beat the time to the oarsmen (Venice article 22). In both Mediterranean codes these specialised mariners were bound by individual oaths (Tortosa article 18, 19); written out in full in Venice (article 39-42).[↑]
- This is the interpretation which Pardessus (n. 21 above) p. 29 n. 5 gives to the obscurely worded article dealing with the portage of a sailor who died during a voyage: Si aliquis marianiarius morietur, patrono sit licitum intromittere tantum de bonis illius que fuerint in nave, quantum per racionem ipsi habere pertinet de residuo quod sibi pertinet habere, et debet servire.[↑]
- Eichler (o. Fn. 5, p. 345-347) discusses the details.[↑]
- The phrase ‘Die Fracht ist die Mutter der Gage’ [the freight is the mother of the wage], by which a seaman’s wages would depend on the ship’s freight income, is not to be found in any of the codes examined here.[↑]
- Tortosa has equal punishments for a thieving and an absconding seaman. Thievery is regulated in the following article 2.[↑]
- This article will be examined in further detail at n. 64 below.[↑]
- This rule is also found in the Llibre del Consolat de Mar article 92: Serna Vallejo (n. 25 above), p. 139. Pardessus (n. 21 above) p. 33 n. 3 considers the shipmaster’s duty to consult the merchants before firing a seaman to be part of the droit commun but does not explain exactly what he means by that.[↑]
- Calculating time limits by tides is to be found in the 12th century statutes of Newcastle upon Tyne, where it is used to determine the maximum time allotted for a suit between a burgess of the town and an outside merchant: Inter burgensem et mercatorem si placitum oriatur, finiatur ante tertiam reflexionem maris, this is no longer than a day and a half, cited from Krieger (n. 4 above), p. 35 n. 139, who in turn cites Stubbs, Select charters, ‘The customs of Newcastle, based on Acts of Parliament of Scotland’ I, 1913, p. 33, 34.[↑]
- Sonja Breustedt, article: Strandrecht, in: Hanselexikon (https://www.hansischergeschichtsverein.de/lexikon?buchstabe=s#anzeige, accessed on 5 June 2020).[↑]
- Sprandel (n. 30 above), p. 389 f. Sprandel prints (p. 397-403) the Hamburg code of 1292 and (p. 404-410) the Lübeck code of 1299 which was committed to writing at the behest of Chancellor Albrecht von Bardewik.[↑]
- Sprandel (n. 30 above), p. 394-397. See also Ulrich Weidinger, …nur wenn es dem Schiffer gefällt. Die Behandlung des Interessenkonflikts zwischen Verfrachtern und Befrachtern in den ältesten Seerechten Nordwesteuropas, in: Brigitte Kasten (ed.), Tätigkeitsfelder und Erfahrungshorizonte des ländlichen Menschen in der frühmittelalterlichen Grundherrschaft (bis ca. 1000). Festschrift für Dieter Hägermann zum 65. Geburtstag (VSWG Beihefte Nr. 184), 2006, p. 307-325.[↑]
- Article 14 of the Lübeck sea law of 1299, Urkundenbuch der Stadt Lübeck, 2nd part, 1st half, No. 105, p. 83-89 (85), reprinted by Sprandel (n. 30 above), p. 406.[↑]
- Weidinger (n. 58 above), p. 313.[↑]
- Among these is the striking inequality of Breton and Norman seamen (Oléron article 17). The Normans can claim two meals a day but nothing more than water to drink (unless the ship is in the wine country). The Bretons get only one meal a day pour la resoun qil ount beverage en alaunt et en venaunt – the reason being that they are provided drink on the outward and return voyage. The context suggests that this drink was something better than water. The Normans were entitled to more food, the Bretons to more drink.[↑]
- Goldschmidt (n. 7 above).[↑]
- Delays owing to conflicts were highly dangerous, as Oléron (article 9, discussed supra in n. 43) recognises.[↑]
- Thus Bergen (article 13) applies the principle of venue to pleas originating from brawls on board which were pursued after the ship’s return. Oléron (articles 8 and 11) states that in suits regarding faulty storage of goods or groundless jettison pursued after completion of the voyage, the testimony of the seamen is decisive.[↑]
- Needless to say, this was a decidedly unpleasant task, since one was bailing North Sea or North Atlantic water, which was cold enough to reconfigure the anatomy of a brass monkey.[↑]
- In Venice, the problem of overloading was, at least in principle, regulated by the authorities and judged by obligatory markings on the ship’s rump. Only in one particular case – the decision to take goods from a foundering ship on board, although this meant overloading – it depended on the consensus of shipmaster and the majority of the merchants and sailors on board: Venice article 67.[↑]
- Goldschmidt (n. 7 above), p. 368.[↑]
- Albrecht Cordes, article: Partenreederei, in: HRG IV, 2nd ed. 26th part, 2017, col. 405-408.[↑]
- Anne-Estelle Rothweiler, article: Bodmerei, in: HRG I, 2nd ed. 2008, col. 630-632.[↑]
- Le mestre deit prendre counseil oue ses compaignouns
et lour dire: “Seignurs, vous avez cest temps!”
Ascuns (some) i avera qi dirra: “Le temps nest pas bon!”
Et ascuns qi dirrount: “Le temps est bel et bon!”
Le mestre est tenuz de ceo accorder oue les plus des compaignouns.
Oléron article 2, Krieger (n. 4 above), p. 124. The punctuation has been modernised.[↑]
- These dynamics must have led to highly volatile rules in late medieval commercial and, especially, maritime law. This is a promising subject for a future study which, in contrast to this paper, would have to cover a larger time-frame. Just a few preliminary observations: The codes of Venice and Oléron were frequently supplemented and expanded. Tortosa’s code was absorbed into a larger compilation which took shape as the Llibre del Consolat de Mar. And finally, an observation on the occasion of a language change: In Lübeck, the linguistic turn from Latin to Low German around 1270 provided the opportunity to slip in a supplementary clause specifying that the value of any jettisoned cargo should be calculated at its notional value in the port of destination. For Venice Lane (n. 23 above), for Oléron Naegle (n. 29), col. 145 f. For the Lübeck example see Albrecht Cordes, The Language of the Law: The Lübeck Law Codes (ca. 1224-1642), in: Gialdroni (n. 42 above), p. 137-162.[↑]
- See above n. 7. Once again, the stunning accomplishment of Jean-Marie Pardessus (n. 21) in the early 19th century needs to be underscored.[↑]
- A confusion of languages spoken on board which was worthy of Babel itself was, given the intensification of trade, presumably increasingly a problem. In view of the statutes prohibiting jumping ship in outward ports, there must have been a certain amount of fluctuation in the makeup of the crew. Oléron article 17 mentions Breton and Norman seamen who were far from home when they arrived in Bordeaux.[↑]
- Serna Vallejo (n. 25 above), p. 113 f.[↑]