Maritime Law

Maritime Law

Maritime Law is the branch of law that governs maritime cases and issues.  Because of the subject matter, maritime law is both international and domestic in scope and practice.  Writing in the 18th century, Justice Mansfield stated that the 'maritime law is not the law of a particular country, but the general law of nations.' Maritime law is ‘the outcome of commercial intercourse by sea' and its development was necessary to facilitate trade among nations.  The uniformity of maritime law was crucial to the promotion of international trade and is a feature that remains important today.  

Among the issues covered by maritime law are marine navigation, collisions, cargo disputes, territorial and international waters, fisheries, and seamen's claims.  For the maritime archaeologist, the primary significance of maritime law is that the Law of Salvage also falls under its domain.  Originally formulated to encourage and reward the saving of life and property at sea, salvage law has been utilized in more modern times to determine the legal rights to historic shipwrecks.  The U.S. federal courts sitting in admiralty have generally represented attractive forums within which to bring salvage claims, although recent decisions have perhaps lessened this appeal.  Still, the Law of Salvage (and the Law of Finds to a lesser extent) remains an important component in the legal framework governing disposition of the underwater cultural heritage.

The roots of maritime law can be traced back to the early maritime civilizations, and especially to the Greek island-State of Rhodes.  Legal jurists on Rhodes were the first to codify customary maritime laws.  Ultimately, the Rhodian laws were transcribed within the Code of Justinian in the 6th century A.D. and would remain influential until the 14th century.  During the Pax Romana, a maritime 'law of nations' in the Mediterranean was essentially unnecessary since the only commercial fleets were Roman – maritime issues and disputes were thus governed by the laws emanating from Rome.  Nevertheless, a number of important principles of maritime law evolved during this period.  One such tenet of Roman law was the notion that the sea was open to all and that territorial waters and coastlines were things common to all (res nullius), i.e. not subject to private ownership.

The application of the maritime laws developed during the ancient times continue until the late medieval period.  The absence of a seafaring tradition among the Germanic invaders meant there was little development of their own laws related to maritime commerce.  Eventually, a number of important maritime codes would be developed, however, as seaborne trade accelerated in the Northern Mediterranean.  One such example is the Consolato del Mare, which was a compilation of the rulings of the consuls based on the maritime laws developed in Venice, Genoa, Pisa, Marseilles, and Barcelona.  Arguably the most significant medieval maritime code was the Rolls of Oléron, which were formulated by Eleanor of Aquitaine during the Second Crusade and based, at least in part, on the Roman and Rhodian maritime laws.  They were the first maritime laws developed outside of the Mediterranean and would establish the foundation of maritime law in France, Scotland, Netherlands, Castile, and Prussia.  The Laws of Wisby controlled maritime decisions within the Hanseatic League and were themselves based on the Rolls of Oléron.

These various medieval maritime codes, and especially the Rolls of Oléron, would provide the basis for the maritime law of England.  Although disputes involving maritime commerce were decided by merchants initially, England gradually developed a system designed specifically to adjudicate maritime cases.  Beginning in the 14th century, maritime cases were brought before an Admiral and ultimately special ‘admiralty courts’ were established to resolve maritime disputes.  The jurisdiction of the admiralty courts would extend to all cases occurring on waters subject to the ebb and flow of the tides. Important decisions of the High Court of Admiralty, along with the Rolls of Oléron, were compiled into the Black Book of the Admiralty and was considered the authoritative statement of maritime law.  After gaining independence, the United States would adopt the maritime law as developed in England and enshrine original jurisdiction for all cases admiralty and maritime in the federal courts.

Salvage is the rendering of assistance to vessels and their cargo in distress at sea, whether afloat, shipwrecked, or sunken.  The Law of Salvage dates back to at least the Byzantine era, when salvors were rewarded property rights to salvaged property according to the amount of risk involved in the undertaking.   Salvage law is part of the customary international law and is thus mostly uniform across disparate jurisdictions.  A number of international conventions, such as the 1989 Salvage Convention, dictate the proper application of salvage law when issues are confronted.

In order to establish a viable claim for salvage, the claimant must satisfy three elements: 1) that the service was rendered voluntarily; 2) that the ship or shipwreck was in marine peril; and 3) that the salvage attempt was successful.  Successful prosecution of a salvage claim confers upon that party the status of 'salvor-in-possession,' which grants that party the exclusive right to salvage the property in question.  It is important to note that the salvor does not obtain a property interest in the property, but instead is granted a lien against the property equal to the amount of the salvage award.  The amount of the salvage award depends upon a number of factors, including the value of the property, the degree of risk involved, and the skill with which the salvage was conducted.  An additional consideration occasionally applied when deciding a reward for salvage of historic shipwrecks is the archaeological integrity of the work performed.  Significantly, a number of statutes and international conventions specifically prohibit the application of the Law of Salvage and Finds to historic shipwrecks.

When determining proprietary interests in an historic shipwreck, the court must determine whether the Law of Salvage or Finds will apply.  The law of finds will apply in instances where the court finds that the wreck has been abandoned.  Abandonment can either be express or determined from the totality of the circumstances, e.g. the passage of time and/or the absence of attempts by the owner to recover the property.  Where a state vessel is involved, the court will generally require that the property be expressly abandoned by the owner before awarding title.  The primary distinction from the law of salvage is that title to the property is awarded to the recovering party, as opposed to a lien against the property.  The Law of Finds is not a historical feature of maritime law but instead has been adopted from terrestrial laws according to the rule of ‘Finders Keepers.’

Bibliography

Aznar-Gomez, Mariano J.

2010 Treasure Hunters, Sunken State Vessels and the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. The International Journal of Marine and Coastal Law 25:209-236.

 

Brice, Geoffrey

2011  Maritime Law of Salvage. Sweet and Maxwell, London.

 

Bryant, Christopher R.

2001 The Archaeological Duty of Care: The Legal, Professional, and Cultural Struggle over Salvaging Historic Shipwrecks. Albany Law Review 65:97-145.

 

Chowdharay-Best, G.

1976    Ancient Maritime Law.  Mariner’s Mirror 62(1):81-91.

 

Forrest, Craig

2009 Historic Wreck Salvage: An International Perspective. Tulane Maritime Law Journal 33:347-379.

 

Hallwood, Paul and Thomas J. Miceli

2005    Economic Analysis of the Legal Regimes Governing Salvage of Historic Shipwrecks. Ocean Development & International Law 36:323–337.

 

Kahn, Lawrence J.

1995    Sunken Treasures: Conflicts Between Historic Preservation Law and the Maritime Law of Finds. Tulane Environmental Law Journal 7:595-643.

 

McQuown, Terrence P.

2000 An archaeological argument for the inapplicability of admiralty law in the disposition of historic shipwrecks. William Mitchell Law Review 26:289-326.

 

Nafziger, James A. R.

2003  The Evolving Role of Admiralty Courts in Litigation Related to Historic Wreck. Harvard International Law Journal 44:251-271.

 

Schoenbaum, Thomas J.

2011  Admiralty and Maritime Law, 5th ed. West Publishing Co., St. Paul, Minn.

 

Senigallia, Leone A.

1940    Medieval Sources of English Maritime Law Mariner’s Mirror 26(1):7-14.

 

Senior, William

1952    The Antecedents of Maritime Law.  Mariner’s Mirror 38(4):260-275.

 

Street, Thomas

2006    Underwater Cultural Heritage Policies of the United States Coastal Zone. Coastal Management 34:467–480.

 

Varmer, Ole

1999  The case against the "salvage" of the cultural heritage. Journal of Maritime Law and Commerce 30(2):279-302.

Cases

Nuestra Señora de Atocha:  Treasure Salvors, Inc. v. Unidentified Wrecked and Abandoned Sailing Vessel, 408 F. Supp. 907 (S.D. Fla. 1976), affirmed 569 F. 2d 330 (5th Cir. 1978); Florida Dept. of State v. Treasure Salvors, Inc., 621 F. 2d 1340 (5th Cir. 1980), affirmed in part and reversed in part, 458 U.S. 670 (1982), on remand 689 F. 2d 1254 (5th Cir. 1982)

S.S. Central America:  Columbus-America Discovery Group v. Atlantic Mutual Ins. Co., 974 F. 2d 450 (4th Cir. 1992) 

S.S. Brother Jonathan:  California v. Deep Sea Research, Inc., 523 U.S. 491 (1998)

R.M.S. Titanic: R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir. 1999) ("Titanic I"); R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 286 F.3d 194 (4th Cir. 2002), cert. denied, 537 U.S. 885, ("Titanic II"); R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 435 F.3d 521 (4th Cir. 2006) 

Juno  and La Galga: Sea Hunt, Inc. v. Unidentified Shipwrecked Vessel, 221 F. 3d 634 (4th Cir. 2000)

Nuestra Señora de Mercedes:  Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel, 675 F. Supp. 2d 1126 (M.D. Fla. 2009), affirmed 657 F. 3d 1159 (11th Cir. 2011)

Barry Bleichner is currently a student in the Coastal Resources Management PhD Program at East Carolina University, where he specializes in maritime archaeology. Before pursuing further graduate study, he worked as a maritime attorney in New Orleans for several years. His research interests include the archaeology of the colonial era in the US and Caribbean and the management and protection of underwater cultural heritage.
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