Paper by Gordon W. Paulsen
In recent years there have been many efforts at obtaining uniformity of laws in various jurisdictions: the various restatements of law, international conventions, and, where all else fails, bilateral treaties on specific aspects of law such as recognition of judgments. It has long been this writer's theory that such attempts at uniformity became necessary because the rise of nationalism over the centuries destroyed the uniformity of maritime law, which had been established by commercial traders from time immemorial. This paper presents the historical thesis that uniform maritime law:
1. existed in ancient times;
2. developed and grew with the spread of maritime commerce;
3. declined with the growth of nationalism;
4. was revived in the nineteenth century at the instigation of lawyers and commercial men such as those who founded the Comité Maritime International and the national maritime law associations;
5. continues to grow under the aegis of the Intergovernmental Maritime Organization (IMO) and other United Nations affiliated organizations with the cooperation of experts in the private sector.
However, it has become strikingly apparent that this healthy trend toward uniformity will cease if the development of international maritime law is left entirely in government hands, and if the United States continues to resist joining the family of nations in adopting international maritime laws. While some observers fear that leaving the development of international maritime law in the hands of the private sector could result in a “public be damned” approach, others contend that leaving it entirely in the hands of the governments would be disastrous to maritime commerce. Thus, there is general agreement that the best approach calls for a balanced cooperation between governments and the private sector. History, as this paper demonstrates, confirms this conclusion.
Perhaps the best explanation of the need for uniformity is found in the preface by Dr. Giorgio Berlingieri to Dr. Plinio Manca's excellent treatise on International Maritime Law:
It is now recognized that the International Unification is a natural requirement of the maritime law since [maritime commerce] gives rise quite often to complex business between citizens of different countries with consequent conflicts between the respective domestic laws which could not be solved by adopting common principles of private international laws.
An historical analysis of uniformity in maritime law at once establishes that maritime law relates to land at least as much as it relates to water; after all, every sea voyage starts, and expects to terminate, at a port. Maritime law has always recognized that the sea and ships, though casting a spell on many hearts, are only means to an end—a method of quick (sometimes), efficient, and relatively inexpensive transportation of goods and passengers for reward. Though maritime law relates to rights and liabilities arising out of incidents upon the waters, it only comes to life after the ship “lands”—or fails to land—safely.
This distinction paves the way for an understanding of why maritime law pioneered the development of uniform laws among seaports—“city states” in most instances, as distinguished from nations as we now know them. The pioneers of travel and commerce by sea found it necessary to develop various types of codes, laws, and regulations to facilitate trading. A ship master needed to know what procedures and standards were expected of him in whatever port he might be obliged to enter. Thus the purpose of these codes was to give all who engaged in maritime trade a uniform understanding of their rights and obligations, thereby minimizing surprises and supporting rather than restricting trade. Because of the disputes which invariably arise in trade, systems were developed very early in the history of maritime commerce to resolve them and to further interport shipping. A port which had an understandable, urbane, and civilized method of resolving such disputes in a way comprehensible to “outlanders” would be attractive to international trade and to merchants from other ports.
Shipping and interport trade were centered not around ships per se, but around the transportation and delivery of commodities. Disputes had to be resolved as fairly and quickly as possible “in the course of business” in order for this overall purpose not to suffer. While the traders, vessel owners, and navigators brought with them different languages, laws, and customs, they nevertheless lived and worked together within the wide world of trade and commerce. The wideness of sea trade fostered certain rules and a degree of uniformity in maritime law which only later, as a result of the passage of time and the advent of nationalism, was to be abandoned. According to one historian, the great value of the rules which had been developed for maritime trade lay in the fact that they had been “found by practice to be suitable to the needs of a community which knows no national boundaries-the international community of seafarers.”
This uniform regulation of commerce and trade was recognized as a benefit and service to the nations involved; a fresh source of wealth was generated by interport trade. Not surprisingly, this wealth invariably led to government involvement as certain nations saw opportunities for increasing their gains. Also, because traders were by the nature of their work explorers, the resources of the foreign lands with which they traded were looked upon by their nation's rulers with covetous eyes. International commerce thus became a tool of international politics.
About the Author
Gordon W. Paulsen. LL.B. 1949, Columbia University; Partner, Haight, Gardner, Poor & Havens; Member of the New York Bar; President, The Maritime Law Association of the United States; Member, American College of Trial Lawyers.
Citation
57 Tul. L. Rev. 1065 (1983)