this country in early days we must glance briefly at their contents.1 2 In the first place, they contain a number of provisions as to the position and powers of the master of a ship, and his relations to the sailors. The master has no power to sell the ship; but in case of necessity he may, after consulting with the mariners and by their advice, pledge the tackling of the ship. He is liable for value of the ship if she perishes in consequence of a start made contrary to the wishes of the majority of the ship's company; and he is similarly liable if she is lost in consequence of his wrongful dismissal of a sailor. If he is in a foreign harbour, and has no money to buy necessaries, he may sell part of the cargo. The amount so sold is to be charged to the ship at the market price; but, as it has been carried, the part so sold must pay freight. The mariners are liable if they desert the ship without the leave of the master, and the ship in consequence perishes." They are also liable if they delay too long ashore in a port so that the ship loses money which it might have earned. If the ship is lost their right to wages is also lost. If a member of the crew incurs any hurt while about the business of the ship he is entitled to be healed at the costs of the ship. Similarly the master must look after him if he is taken ill. He is entitled to his wages which must be set off against the costs of his cure, and if he die his representatives can claim them. The master must keep order in the ship, "and if a maryner smyte the mayster (he is) to pay five shillings or to lose his fyst." 10 The meals to which the sailors were entitled were specified in some detail.11 In addition to food and stipulated wages, it was customary to allow the sailors, either to embark a small amount of cargo for themselves, or to allow them instead the freight payable to the ship on the amount of cargo which they might have embarked.12 They were not entitled to be paid the whole of their wages already earned when the ship reached her destination. The master might retain some part as security that they would finish the voyage.13 It was optional to the sailors to hire themselves for the voyage or to stipulate for a sum to be calculated according to the distance travelled. They 9 The references are to the sections in the Black Book of the Admiralty (R.S.) i 88-131. § I. $ 23. 3§ 2. § 5. 48 14. 883; see Pt. II. c. 4 II. for later developments of the principle that "freight is the mother of wages. 9 29 §§ 6, 7-8 6 enacts that, " yf the mayster sende them in any erande for the prouffyte of the shyppe, and that they shulde hurte theym, or that any dyd greve them, they oughte to be healed at the costes of the shyppe "-a principle not recognized by the common law, but introduced by recent legislation. 10 11 § 17. 12 § 18. 12 § 19. must always be ready to work the ship home to the port from which they had started.1 In the second place, these laws contain a number of rules relative to the rights and duties of the parties to the contract of carriage. The merchant who hires a ship must load her within the stipulated time or pay damages. Of these damages the master is entitled to three-quarters and the mariners to the other quarter. The merchant must pay the freight stipulated when the goods reach their destination. If the ship is wrecked and the cargo is saved he need only pay the freight due for the part of the voyage accomplished; but if the master can either repair his ship, or tranship the goods, and thus convey them to their destination, the whole freight is due. If the cargo is damaged in unloading by defective tackle the master and the mariners are liable for all the damage, unless the merchants have approved the tackle, in which case both parties contribute to the loss. Similarly the master and mariners are liable if the tackle is allowed to damage the cargo on the voyage. The pilot was responsible for bringing the ship to her berth: the master for any loss that occurred through defective mooring at the berth. Whether the cost of pilotage was charged to the merchants or the ship perhaps depended on the agreement of the parties.8 6 5 In the third place, there are a number of rules as to the incidence of the loss arising from the usual risks of a maritime adventure. In case of collision with a ship at anchor the curious rule was laid down that, unless the moving ship struck the other on purpose, the resulting damage was shared between the two ships and their cargoes. The reason assigned was that, if the colliding ship were obliged to pay the whole damage, it would tempt the master of an old ship to place her in the way of a new ship.10 Probably the true explanation is that it is an old rule which arose before the law had attained any idea of founding liability on negligence." A ship which damaged another because its anchor was not sufficiently buoyed was liable to make good the damage. 12 Apparently it was only damage done by one ship to another in harbour which these laws contemplated. 1 § 20. 5 § 10. 6 2 § 22. 3 Ibid. 7 § 24. 8§ 13; cf. Black Book (R.S.) i 105 n. 3-the section is very obscure. 9§ 15" the mayster of the shyp that hyt the other must swere on a boke, and and his marchauntes with hym, that he dyd it not with his wyll." 10" The reason why this jugement was made is, that an olde ship wyllingly lyeth not in the waye of a better, so fer forth as it knoweth not to domage it by grevying, but whan it knoweth wel that it must part by halfe it wyll passe by out of the way," ibid. 11 Marsden, Collisions at Sea (6th ed.) 119; vol. ii 51-52; vol. iii 375-382; Pt. II. The only damage happening on the high seas which they contemplate is damage arising from tempest. If a jettison was thought necessary the merchants and crew should be consulted.1 The master might disregard the refusal of the merchants to consent to a jettison, if he and at least a third part of the crew were prepared to swear that it was necessary. In this case the cargo saved and either the value of the ship or of the freight must contribute to the loss; while the sailors who had done their duty ought to have a tun of wine presented to them from the cargo.3 A similar rule was applied when it was necessary to cut the mast or cables to save the ship. The cargo paid its share, and the merchants must pay their proportion before the goods were unloaded out of the ship. If they refused to pay, and in consequence of the dispute, the cargo deteriorated, they must bear the loss. 5 If the ship was lost the sailors were entitled to be given something from the saved goods to enable them to return home;" but, as we have seen, they were not entitled to wages." The tackle of the ship must be kept safe for the owners; and, as we have seen, the merchants were entitled to have the cargo saved, paying freight." 8 The laws of Oleron thus provided a set of rules which were no doubt generally sufficient to enable juries of merchants and mariners to settle most of the problems of maritime law which arose in the sea-port towns in the early medieval period. 10 That they would require to be supplemented as soon as any extension of sea-borne commerce took place is clear. There were many problems for which they made no provision, and there were many points upon which their meaning was by no means clear. Moreover, in course of time it was certain that peculiarities of national maritime custom would begin to make their influence felt. In the thirteenth century these developments had already begun. There are eleven additional rules in the edition of the laws of Oleron contained in the Black Book of the Admiralty." At least two of these are of native origin. One of them records an ordinance of John's reign that all ships shall strike their sails when required to do so by anyone in command of one of the king's ships.12 The other records the effect of an ordinance made 1 § 8. 5 Ibid. §3; as late as the beginning of the nineteenth century it seems to have been uncertain whether or not this rule was a part of English law, Abbott, Merchant Ships and Seamen (3rd ed. 1808), 437. 2 Ibid 3 Ibid. 8 § 3. 9 Above 122. 7 Above 121. 10" Ces dispositions . . . étaient concues dans un esprit très pratique et rédigées dans un langage accessible aux esprits les moins cultivés," Desjardins, Droit Commercial Maritime 35. 11 Black Book (R.S.) i 121-131, articles 25-35. 12 Art. 35; Twiss thinks it was made at Hastings, March 30th, 1201, ibid 129 n. 3; introd. xlix seqq. by Edward I. in answer to a demand made by the Barons of the Cinque Ports, the sailors of Yarmouth, and of other English ports. It provided that, in case of jettison, the ship should lose the freight of the goods jettisoned, but that neither the ship nor its furniture should contribute to the loss.1 Of the rest, six probably were not purely English developments, as they are found, together with other additions, in that one of the Middleburgh manuscripts which is preserved in the royal library at the Hague.2 That they were accepted in England is clear from the fact that they are included in the Black Books and in other English MSS. of these laws. The first of these articles provides that, if a merchant freighted a ship, and the ship was detained by the fault of the master or the lord of the owner, the merchant might throw up his contract.3 Other articles provide for the right of the merchant who freights a ship to have the whole cargo space in the ship for his goods; * for the customary gratuities given by the merchant to the mariners, which are stated specifically to be not legally due; 5 for the care of the cargo; and for the obligation of the merchant to unload within a certain number of days, and for the rights of the master if he does not. The remaining articles may be simply statements of English custom. One provides for the rights of the mariners hired on the terms that they share the freight; and it does not substantially differ from an earlier article on the same matter.9 Another part of this article, and the earlier articles as to contribution in case of jettison, are changed by the ordinance of Edward I 8 1 Art. 32; the article vouches the Roman law-i.e. the Rhodian Law de jactu, Dig. 14. 2; the original ordinance, which is far more detailed and a good deal clearer than the corresponding article in the Laws of Oleron, will be found in the London Liber Albus, Munimenta Gildhallæ (R.S.) i 490-492. When Twiss edited the Black Book it was thought that these articles were found only in English MSS.-the Black Book itself, the Selden MS. in the Bodleian, and the Cottonian MS. Vespasian B. xxii in the British Museum, and others (see Black Book (R.S.) i lix, lx); but six of these articles (together with others not in the English MSS.) were found by Prof. Pols in the Middleburgh MS.; he has printed all these articles and shown the manner in which they vary from the English MSS. in Nouv. Rev. Hist. (1885) 459-465, and he gives an account of the MS. ibid 454-459; cf. Desjardins, Droit Commercial Maritime 36. 3 Art. 25. 4 Arts. 26, 27. Art. 29, "Yf a marchaunt freyghte a shyp and load it with wynes, it seemeth to the maryners that the marchaunt ought of ryght to give to them in each place where they arrive, and on each day of a double feaste, a pot of wyne or two or three pots; the maryners by ryghte of lawe cannot have or demand anything, but the marchaunt may gyve them in courtoisie what he pleaseth." 6 Art. 30-if loaded with wine the master should find a boy to look after it, "with as muche care and as often as yf they were the wynes of the mayster "; also he must furnish the merchant with a kitchen if he demand it. 7 Art. 31-the unloading must be done within twenty-one working days: if it is not, the master may put them on the quay under the charge of a mariner till his freight be paid. 8 Art. 28. 9 Art. 8. above mentioned.' The two remaining articles provide for the liability of a pilot to compensate the owner and merchants if he negligently fails to bring his ship to port so that she perishes, and for his personal liability to punishment in such a case.3 If the court of Admiralty had not arisen in the middle of the fourteenth century, these developments of maritime law, whether initiated by the king's Council, or adopted from the usage of our own or of foreign ports, would probably have been worked out into a body of maritime law by the courts of the more important sea-port towns. But the rise of that court put an end to the prospect that English maritime law would be developed in this way. The Admiralty soon began to attract the greater part of the maritime jurisdiction of the country; and therefore it is in the records of that court and in the cases decided there that we must look for the origins of our maritime law of to-day. The Admiralty was and still is primarily a department of state. It is for this reason that its earliest records were collected in a Black Book-analogous to the Red and Black Books of the Exchequer, and to the many similar books compiled by the clerical staff of the governing authorities of the larger boroughs." Its contents show us that, before the close of the mediaval period, both the administrative and the judicial sides of the Admiralty were beginning to develop. The Black Book of the Admiralty has been printed in the Rolls series under the editorship of Travers Twiss. It was probably compiled by an official of the Admiralty at some period in the reign of Henry VI.; but whether it is all written by the same hand is somewhat uncertain. As is usual with these official books, the documents which it contains come from many different periods and sources. It begins with a set of regulations. for the Admiral and the fleet upon such matters as the duties wages and other rights of the Admiral, the wages of mariners, the order of sailing, the lights to be carried, prizes, visit and search, and compensation for collisions. Then we have a set of articles to be inquired of by a maritime inquest.10 The frame of Art. 34-the crew may cut off his head, "withoute the maryners beinge bounde to answer before any judge because the lodeman has committed high treasone against his undertakynge of the pilotage." For the history and development of the court see vol. i 544-547- 7 This edition was not printed from the Ibid 372, 373-374. original Black Book, which was then but shortly afterwards the missing book contain private papers belonging to the 9 Ibid i 1-39. 10 Ibid i 41-87. |