Of Black Books, White Horses, and Sacred Cows:
The Quest for International Uniformity in Maritime Law.
Address to the BMLA,
Trinity House, November 11 1999
You do me the most special honour this evening by inviting me to speak to you at the BMLA and LLP annual dinner. Thank you to both the BMLA and LLP for bringing me back to where it all began for me, nearly 30 years ago, to share with you some of my thoughts on maritime law - or perhaps more accurately, as Cad the purist always taught us, shipping law.
When the euphoria of accepting an invitation like this fades, of course one then asks: "Why me, Lord?" When little divine help was forthcoming, it occurred to me that it may be because I am something of a jurisprudential mongrel.
Most of you will probably know that, because of its history of having been first a Dutch and then an English colony, the South African legal system is a living hybridisation of common and civilian jurisprudence. I could therefore perhaps be described as a common civilian - or perhaps a civil commoner, and I perceive that I already seem to have been punted in the CMI as a bridge across the Channel. I think that we in South Africa are in fact fortunate in that we have drawn the best from both jurisprudential worlds: our maritime law bloodline has been considerably enriched by having had bestowed on it by history the developed laws of the two most significant maritime trading nations of their times: the Dutch of the 17th and 18th century occupation and the British of the 19th and 20th centuries. And perhaps most importantly, the British, when conquering the Dutch finally in 1806, did not sweep away the civilian Dutch law which had regulated the Dutch colonies at the Cape for 150 years. They allowed Roman-Dutch law to remain as the common law of the new British colonies, though they brought with them their English court practices, and, in time, a sizable part of English commercial law. Even today, while most of our commercial law is English we still have as our fall-back regime, the classical Roman Dutch law - not static as it was espoused in Holland 200 years ago, but enriched and expanded by principles of the received English laws and confirmed by judgement and statute. This glorious mix is the present South African common law though it is still called by the mis-nomer "Roman-Dutch Law."
With such a confusing background - neither common fish, nor civilian fowl - I think the BMLA was rather daring in giving me carte blanche in choosing a topic upon which to speak this evening.
The Admiralty judge in his address to the USA association on the occasion of its Centenary earlier this year, used as his central theme the Admiralty oar in the context of the revolting colonies. Now whilst we in South Africa also have a Silver Oar of Admiralty, and whilst we too have had our moment of being a revolting colony (some would say that in latter times perhaps more revolting than most) I feel that it would perhaps test my Colonial diction to the extreme were I to spend this evening dwelling upon issues of revolting Admiralty oars.
With my dual roots, and at the eve of the 3rd Millenium, I thought it may be useful to share with you as the theme of my talk this evening my thoughts on uniformity of maritime law - in retrospect and in prospect - and to explore the extent to which it may yet be possible and even sensible for maritime nations on both sides of the Atlantic and the Channel, and on all sides of the legal spectrum, to continue to strive for a greater measure of international uniformity. Though clearly not aspiring to the colour of Sir David's session with the Admiralty oars, I have entitled my talk
Of Black Books, White Horses, and Sacred Cows
As to whether each of these topics has any bearing at all on the question of the quest for international uniformity in maritime law, I leave you to be the judge.
I start with the Black Book.
One of the great advantages of moving (some say sideways, my bank manager insists backwards) into an academic life, is that one is able after a while to kill the omnipresent genie that constantly keeps watch over the practitioners shoulder serving as a constant reminder that the fee book is hungry. An academic is in fact paid to indulge in reading things which, though probably quite useless to the world in general, nevertheless produce great fascination. One such luxury is Sir Travers Twiss' Black Book of the Admiralty which although only published in its modern form in 1871, was compiled as the definitive collection of British Admiralty sources dating from the Middle Ages. And what Sir Travers achieved in the compilation of the Black Book is to show to us, even now more than a century later, that we all in the practice of shipping law, rest firmly on the same roots.
One wonders perhaps if Lord Woolf did not perhaps take an unwelcome leaf out of the Black Book - it directs the admirals Lieutenant to
make summary and hasty process from time to tide and from hour to hour, according to the law maritime and ancient customs of the sea, without observing the solemnity of the law ...
As your time clocks are hopefully now switched off, allow me to share with you some of the gems which are hidden in the four volumes of the Black Book.
Do our landlords of the evening, the Elder Brethren know, for example, that by the Rolls of Oleron:
If a ship is lost by default of the lodeman (as the pilot was known) the mariners may, if they please, bring the lodeman to the windlass and cut off his head without the mariners being bound to answer before any judge.
And that chivalry was entrenched in the original Blacke Booke thus:
No man shall be so bold as to rob or pillage the holy church, nor to ravish any woman upon pain of death.
Perhaps the CMIs initiative to a new Transport Convention could take counsel from the Customs of the Sea Barcelona:
if the managing owner shall place or carry goods on deck without the knowledge or consent of the merchants, and the goods are lost or spoilt, the managing owner of the ship is bound to replace and restore all those goods, or the value of them.
The codes made a valiant (though not entirely successful) attempt to curb the exploits of your wreckers: for willingly cutting a ships cable in consequence of which she is lost or a death occurs, hanging was the reward. Similarly, the noose awaited the 3rd strike of petty stealers of oars and anchors and other small things in ships. [- 49].
The ITF, I am sure, would have taken comfort in the assurance of the Blacke Booke that:
No captain nor master of a ship shall suffer any mariner of his ship to be ill used or beaten.
And the Customs of the Sea of Barcelona could have given Exxon some tips in their seagoing training manual:
Those who keep watch when they are under sail shall not have wine to drink during the whole day, nor any accompaniment to eat with his bread.
We can perhaps learn the most from the Black Book by comparing the different codes which it contains. Spanning centuries and written in different languages in many parts of Europe, they are nevertheless remarkably similar. They gave legitimacy to the largely uniform customs of the time. The Rolls of Oleron themselves recognised the importance of custom and convention:
If any convention has been made between any persons , provided the convention has been made with a good and sound intention, it ought to be observed and kept between those persons.
Whether they be the product of the scribes of Trani, of Barcelona, of Wisby or of Oleron, Codes and Customs of the Black Book reflect a common thread woven through the then maritime world on both sides of the Channel.
In maritime law, may we therefore conjecture that the divide between the common and the civilian systems was perhaps more a carry-over from the admission rules of the Doctors Commons than a jurisprudential gulf carved by the English channel? As Bill Tetley wrote in 1987 in his lament of the demise of international uniformity, These laws did not have international boundaries.
How do we compare today? Have nationalistic self-interests and politicisation of legal principles extinguished the flame of uniformity altogether? I think not entirely, though in many areas it certainly can be seen to be barely flickering against the stormy winds of political and economic change.
Which brings me to white horses ..
When Bartholomew Dais named the Cabo Tempestosa it was no misnomer. The Cape of Storms is hammered by the Deep South Atlantic rollers which, when hitting the continental rise can produce awesome results. This geography combined with the fact that the Cape is situated on a blind bend on the bottom of Africa makes it a marine environment unsuited to the faint of heart, past which most of Europe's oil flows westwards from the Middle East, as also much of the international trade of Europe and the America's en-route to the near East and Australia. More particularly, the Cape sees more than its fair share of substandard ships on route to the breakers yards of Pakistan and India, often carrying one last low value cargo to pick up freight. Let me share with you some slides of perhaps the worst pariahs which I have come across in my paractice years at the Cape.
But what have the white horses topping the waves of the Cape of Storms got to do with international maritime uniformity? It is in relation to safety at sea and the public law issues which flow from it, that the world has achieved a level of uniformity which remains elusive in so many other spheres.
Since the early days of the Australian Ships of Shame report, and to a large measure through the concerted and continuing efforts of stalwarts like Lord Donaldson and of the ITF and the Missions to Seamen, the maritime world has attempted to come to terms with the unhappy realisation that flag states have not done their jobs properly, that coastal states lack the necessary legal clout, that classification societies have hidden behind and been lulled into a sense of false litigious security by systems of tort which seem incapable of visiting upon class the consequences of their own ineptitude (with the notable exception of two or three brave judgements coming out of Belguim and France). Even hull underwriters have, at least until the limited adoption of the still unpopular 1985 Institute Hull terms, been too inclined to underwrite risks blindly and without any quality control.
But the concerted efforts of international organisations and of port states have produced what must now surely be accepted as a potent tool in the form of internationalised port state control. The reality is that port state control works. It is a success. And the initiative has not only benefited those states which have been able to afford the 30% or 40% port state control inspections that many of us in developing countries would so welcome in our own waters - Developing countries and those with little or no port state control structures now in place, clearly benefit from a better maritime environment. As coastal states, they benefit more specifically also from their ability to share in the database intelligence provided by the developed port state control systems through the MOUs.
We are all encouraged to see that a significant part of the world's trading oceans are now covered by the reach of various geographical and regional MOUs. South Africa now chairs the Indian Ocean MoU. A West African MoU was signed last month. In a way, the proliferation of MoUs, all relying closely on Paris, but doing their own regional thing, has shades of the Black Book unison about it. This is international co-operation producing results. But if we step back from the undoubted satisfaction of progress made, this a world notion and it may be that this is an area of international maritime law where a convention could ensure uniformity of port state control methods, limitations and the gathering and dissemination of intelligence. Our nationalistic and regional interests should surely be subservient to uniform desires for a safer environment at sea.
Some may say that the international structures of the UN and the IMO, through the ISM Code, the STCW and the Safety Conventions, are enough to enable port states to "go it alone" or operate through regional Understandings. In my view however, the basic legal framework is still missing. The IMO has done wonders in its consolidated PSC resolution. It is clearly the IMO which would have to drive a convention initiative, hopefully with input from the CMI. But the IMO Resolutions do not bind member states. They are purely recommendatory. Nor does UNCLOS impose any direct obligations on port states to do what internationally is fast becoming a requirement of uniform custom. UNCLOS empowers, but it does not oblige.
Another problem arising from the lack of uniform regulation is in the implementation of PSC. States are at liberty to "do their own thing" - even if they are members of the IMO - provided they have reasonably considered the IMO recommendatory resolutions. Insufficient, wrongly focussed or over-zealous PSC inspections can all do more harm than good to the notion of PSC.
In short, PSC has come so far in such a short time, that it deserves full internationalised clout. And there is always room for improvement. The Paris MoU reported last month that
The level of deficiency leaves no room for complacency. In a 2 month inspection campaign earlier this year . 8 of the 79 ships inspected had structural defects considered serious enough to detain the vessel until repairs were made, and just over half were found to have at least one deficiency. All the detained ships had been surveyed by IACS member organisations.
Port State Control may now need the legal muscle which would come from a PSC Convention. The alternative is for a more flexible inter-regional cooperation agreement on a more formalised basis. As the IMOs Fernando Plaza expressed it: "Enhanced international op-operation" should be the emphasis for the future. I would envisage that either would operate as an over-arching MoU, ensuring, for instance, a uniform Code of Conduct. This would surely help those seeking to establish their own PSC regimes as much as it would rein in certain states who try to abuse the inspection and detention system for their own self-interest.
And the dictates of nationalistic self-interest bring me to my third theme: Sacred cows.
In African folklore, the cow is a measure of wealth. It is also the key to marital bliss: in Southern Africa the going price for a beautiful bride is between twelve and fifteen cattle.
I discovered some months ago that the cow has a particular relevance in maritime law. In Cape Town we have a merchant naval academy. One sunny Cape afternoon, cadets from the academy were out on a training exercise in Table Bay in a cutter. They came upon a cow striking out bravely for the shore. She had apparently escaped from the infamous Robben Island, and was seeking the freedom of the mainland. The cadets saw an opportunity: they tied a rope to the cow's horns and guided her safely to the shore. It was then that they telephoned me. "Prof" they asked, "do we have a salvage claim?". Well, as any good salvage lawyer will know, since the 1989 Convention it is not necessary that the property salved be of a maritime nature. Our doughty cadet were voluntary samaritans, Daisy was clearly in danger, and they had a fund. The answer was easy.
In many cultures the cow is sacred and the culture of the maritime lawyer appears to be no exception. It is inevitable that the greatest hurdle to internationalism should be national identity and idiosyncrasy. That will always be. (My own countrys arrest laws are as idiosyncratic as they are sensible!). National interests will continue to be served. The lex mercatoria was killed by a post -Middle Age's nationalistic revival. But it regenerated, in the acceptance of nationalistic interest, to what Schmitthoff calls "The New Lex Mercatoria". Perhaps it is not a vain hope to seek a New Lex Maritima. But to achieve internationalism in certain areas of maritime law will clearly involve the slaughtering of some of its most sacred national cows, as stumbling blocks to uniformity.
In preparing for this talk, I went out on that most suitable vehicle for the dissemination of the New Lex Maritima: the internet. I asked academic colleagues in maritime law what they thought were obstacles in the way of uniformity. The replies were most interesting.
Heading the list were two US academics. Both felt that the United States itself was a stumbling block - in its resolute refusal to subscribe to conventions, even those in which it has played a major role. The list is significant, and includes limitation, carriage, oil pollution. The United States has charted its own course. But then would not any nation with an MLA membership of over 3 000 be tempted to walk alone in the belief sometimes that the world far over the ocean does not exist? Also high on the list is the unfathomable juxtapositioning of state and federal maritime law in the United States - blamed by one US writer for the disintegration of uniformity of maritime law within the USA itself. To us who are outsiders to the maze that is United States Admiralty Law, it is very difficult on occasions to decide what the law of the United States is.
There are no prizes for identifying the colleague who told me that he thought the two greatest stumbling blocks to international uniformity were UNCITRAL and the CMI. Now one might be tempted to treat what was a light-hearted comment as cynical and gloss over it. But we need to take it seriously, even if it was not intended so: if the way we are going about our quest for international uniformity is not effective, maybe we need to seek new methods of moving forward. And here perhaps the experience of one who has come through the transformation of a nation wracked by conflict, division and self-interest may have a small role to play: in South Africa, we made very little progress until we put working drafts onto a negotiating table. Even where those drafts were a far cry from what was eventually agreed, they gave us a focus. As a new kid on the CMI block, this is about the most important contribution I can offer. I call it
The Principle of the Most Possible Working Drafts
for Achieving the Most Impossible Accommodations.
That it is not to say that background homework on an issue in need of international attention can be avoided. No-one wants a convention to come forward which has not been properly researched, lobbied and negotiated. But in todays world of instant, near free, and easy communication, we should aspire to do better than our forebears in reaching the accommodations necessary - even if a few sacred cows disappear in the process. And let us not be naive in thinking that the world in which we seek international compromise is unchanged from the comparatively cosy environment in which some historical conventions were negotiated by the few for the many, seldom with any demur. Perhaps this is reason enough to go forward with voluntary rules, rather than bind ourselves up in the inflexibility of conventions.
What other areas were identified by my international Round Robin?
Limitation of liability
There remain a few mavericks who have chosen to remain outside the 1976 regime - the USA and South Africa included. There remain concerns about not only the amounts of the limitation fund, but the onus which comes with the package.
Here the work has already been done, under the expert pilotage of Professor Berlingieri. The 1999 Arrest Convention awaits signature. To the extent that there remain differences in various systems however, we have yet to bring the nonconformists to the accession table. Problem areas reported to me included
In rem jurisdiction which does not require in personam liability
Sales in execution
The nature and effect of the maritime lien
One-ship companies and "associated ship arrests" based not on co-ownership, but on an unravelling of corporate control.
Numast and other lobby groups have recently been calling for reform and uniformity in the international approach to many issues of pilotage, including
Compulsory pilotage and exclusion of liability for pilot error
Uniformity of standards of training and qualification
The CMI is piloting an initiative to assess whether it is necessary and desirable to attempt to pull back certain maverick legal systems which have turned their backs on the common jurisprudential roots underlying all marine insurance. A conference was held in Oslo last year, and there is one set for Antwerp next week (though not under the auspices of the CMI). Marine insurance is, as Emerigon said as long ago as 1781
a law not peculiar to one but common to all commercial nations. Whence it is derived but from natural reason, existing in all men and reaching the same results in all countries alike
The English warranty
If one is seeking natural reason then the first cow to go to the sacrificial altar must be the toxic English warranty which has tainted the laws of the USA, Canada, South Africa, Australia, New Zealand and even China. The ubiquitous and omnipotent English law warranty which allows an insurer to walk away from a policy for a non-causative and immaterial breach of warranty by the assured is an abomination to many continental practitioners. It is a pariah even at home. Lord Renbury, as long ago as 1927, said it all:
I think it a mean and contemptible policy on the part of an insurance company that it should take the premiums and then refuse to pay upon a ground which no one says was really material. Here, upon purely technical grounds, they avail themselves of what seems to me the contemptible defence that although they have taken the premiums, they are protected from paying
These views were repeated in the Law Commission Report
of 1980, yet what the Commission referred to as the "mischief"
Notwithstanding the efforts of the Lord Mustill in Pine Top, there remains a singular lack of uniformity in the approach of various systems to the pre-contractual obligation to disclose. High on the list would be the criteria for materiality. A two-tier approach? The reasonable insurer or the reasonable insured? In South Africa, we have the test of the reasonable person looking for insurance - akin to your "Man waiting for a taxi in Lime Street". Our test works, I suggest, about as badly as yours.
The civilian systems subscribe to a continuing obligation to exercise good faith. In the common law systems, freedom which the adversarial contract allows for self interest has inhibited a general acceptance of a lack of good faith as a stand alone remedy. Our law has been reluctant to embrace good faith fully. Maybe The Litsion Pride, The Good Luck and The Star Sea will help put us back on the right track. But there remain differences: And continentals find degrees of good faith, with utmost good faith at the pinnacle, anathema.
Another anathema for the continental is the comparative heavy weather we who employ English law, make of causation. Uniformity can only serve to simplify. It would be difficult for it to further complicate. The easiest way to frighten a continental lawyer out of the London market is to visit upon him or her notions of English causation upon which your most eminent experts expressed a
feeling of sorrow because we were born before the man who can formulate useful general tests of legal cause.
Marine Insurance is clearly in flux. A formal convention would, in my view, suffocate the spirit of marine insurance, and (as many have said before me) reduce its moving image to a still photograph. But many of us, South Africa and the United States included, may well be pulled back from a maverick leap to our own version of the 1906 Act by a well drafted international set of Rules. These would then be available to states to form the basis of their legislation, in the absence of which (and possibly notwithstanding which) the Rules could still be incorporated by the will of free contract. Dare I suggest that marine insurance rules be called The Lombardy Rules - in deference to the forced removal of the insurance merchants of Lombard Street during Queen Elizabeth Is fit of nationalistic protectionism.
This is surely the challenge of the New Millenium. And an exciting one at that. A century ago, the maritime world was grappling with the internationalisation of the major reforms brought about by the Harter Act. The Hague Rules and their protocols stood the test of time, albeit not uniformly liked. Hamburg, in trying to accommodate the new winds of political change was a brave attempt which one must now accept as a stepping stone towards a goal rather than the destination itself. We have, in the decades during which we have been privileged to practice, witnessed two shipping revolutions with ripple effects every bit as great as the Industrial Revolution: The Container Revolution of the 1970s and the Electronic Revolution of the past decade. Our world has changed more in the past 2 decades than Congressman Harter and Samuel Plimsolls worlds changed in 2 generations. Maritime transport remains accountable for over 90% of the movement of international trade. Yet we are labouring under liability regimes which were devised when a container was a cardboard box, and the closest thing to EDI was sending a cable in morse code.
The CMI and UNCITRAL are running with the ball in the challenge for a new Transport Convention. It is the World Cup of maritime law, and it must be won - by us all.
And the conceptual cows which may have to be sacrificed in the process? The Transport Convention World Cup qualifying rounds will undoubtedly be fought on the fields of
The identity of the carrier, of multiple carriers, of actual carriers - and the obligation to identify itself as such and be accountable to the shipper
Presumption of carriers fault & the onus of proof
The role and obligations of the shipper, especially in situations where the carrier has no reasonable means of knowing what the cargo is
Nautical fault as a defence to the carriers liability (with or without reversal of onus)
The nature and effect of unseaworthiness
better definition of the occasions where unseaworthiness defeats the carriers rights to rely on exclusions or limitations of liability
seaworthiness as a continuing obligation in various types of carriage contracts
expansion of the notion of "seaworthiness" to include pre-loading and post discharge stages of multimodal carriage
The regime outboard of the ships rail in multimodality generally, linked to the period of responsibility of the carrier or carriers
The nature and operation of perils of the sea - with particular reference to the situation where the peril is foreseeable and non-exceptional
There are of course many other issues warranting and receiving international attention: The liability of classification societies, a review of general average, and more. The fact that we have in place York Antwerp Rules, London Salvage Conventions, Arrest Conventions, and Hague and even Hamburg Rules, means that it can be done. Let us not forget progress made in drawing up rules such as the Guidelines on EDI and on Electronic Commerce. We should also not forget that the road to uniformity is paved with the bricks of shared knowledge of each others legal systems. Publishers such as LLP play a huge role in building those bricks.
My hope, as we approach the exciting challenges of the New Millenium, is that we are on the brink of a New Lex Maritima which will harness and not fight the energy of the Container and ElectronicTransport Revolutions. We should ride on the back of our new-found international connectivity, and produce a rich harvest of international conventions, model laws and rules. All, to use Bill Tetleys words, in language which is "workable, efficient and useful". Perhaps in my retirement I will one day then be able to put onto the world wide web a New Blacke Book of the Admiralty, containing all the achievements of the early years of the 3rd millenium.
The New Maritima Electronica. We should aspire to nothing less.
Trinity House, London