20 July 2013 Written by  HAILEGABRIEL GEDECHO

Definition, Scope and Characteristics of Maritime Law

Gilmore and Black, in their the Law of Admiralty, define maritime law as ‘’A corpus of rules, concepts and legal practices governing certain centrally important concerns of the business of carrying goods and passengers by water’’. On the other hand, William Tetley’s Glossary of Maritime Terms describes maritime law as ‘’a complete system of law, public and private, substantive and procedural, national and international’’. The famous legal dictionary – Black’s Law Dictionary, in its part, defines maritime law as ‘’the body of law governing marine commerce and navigation, the carriage at of persons and property, and marine affairs in general; the rules governing contract, tort and workers’ compensation claims or relating to commerce on or over water’’.

The definitions given above, though comprehensive, are not necessarily inclusive of all matters dealt under this specific area of law. While Tetley’s definition emphasizes how broad maritime law can be, the two other definitions concentrate on the central aspects of the law. A rather simpler but broad definition of maritime law would be: the branch of jurisprudence that governs ships and shipping. As the law of ships, it regulates the nationality, ownership and registration of vessels. As the law of shipping, it governs the relationship between private entities which operate vessels on the oceans. In other words, it governs maritime questions such as sea carriage, contract of affreightment, marine insurance, maritime lien and the like.  It is distinguished from another etymologically identical area of law –the law of the sea. The law of the sea is a branch of public international law which aims to regulate the relationship between states in respect of those areas of the sea and seabed subject to coastal state jurisdiction and beyond. Whereas, maritime law/admiralty law is  a body of private law that govern the legal relationships arising from the transportation of passengers and cargoes on the high seas and other navigable waters. The principal parties affected by maritime law are the crew, the ship-owner, the cargo owner, the charterer and the marine insurer. Generally, maritime law could be understood as a body of domestic law governing the relationships between parties engaged in maritime commerce.

In most jurisdictions, maritime law applies to seawater only. Shipping activities in interior waterways are usually governed by a separate set of rules. There are, however, some countries that extend the scope of their maritime law to shipping activities in interior water bodies. In Scandinavian countries, for example, maritime law applies to shipping activities in all water bodies, including lakes, rivers, and canals.

The scope of application of our Maritime Code is, like in most of the shipping nations, limited to shipping activities on seawaters only. These could be inferred from the general framework of the Code, particularly the preface. In the Preface to the 1960 Maritime Code of Ethiopia, it is stated that the codification of the Code was felt imperative with the return of Ethiopia’s ancient sea coast on the Red Sea and the subsequent expansion of Ethiopia’s maritime power.

The definition given to “ships” is also of some help in determining the scope of our Maritime Code. For the purpose of this Code, provides Art. 1, “a ship is …any seagoing vessel…” This definition is not inclusive of any other watercraft used as a means of transportation in any other water body. Thus, our Maritime Code is not the pertinent legislation that governs shipping activities of non-seagoing vessels.

Legislative provisions, other than that of the Maritime Code, are also indicative of this fact. For example, Art.563 of the Commercial Code excludes carriage of goods/persons in inland waterways from the ambit of carriage by sea, which is the concern of the Maritime Code (See Art. 565 of Com. Code).

From the foregoing discussion it is clear that maritime law is a domestic private law that, in most cases, aims to regulate shipping activities on seas. Though each nation’s maritime legislations have their own distinct features, the following remarks could be made on maritime laws in general:

1. International Nature

Although regulated to a large extent by national legislation, maritime law in almost all jurisdictions is clearly shaped by international influences, in particular international conventions. This is due to the fact that shipping by its very nature involves international relations. The ocean-going vessels flying the flag of a state operate in all waters throughout the world and sail from country to country. Vessels often are supplied and repaired in foreign ports. Cargo may be damaged or lost while at sea in the course of an international voyage or in a foreign port, and likewise seamen may be injured on the high seas or in the waters of foreign countries. Such background facilitated the development of common international usage and practice since antiquity. The common universal usage and practices were subsequently adopted by national laws. Maritime law is thus a specialized domestic law that cannot avoid international influences. This may in part be the reason why judges and lawyers who deal with maritime law consider themselves as specialists with an international background.

2.  Comprehensiveness

The second important characteristic of maritime law is its breadth. Maritime law is a complete legal system, just as the civil law and the common law are complete legal systems. Maritime law, incidentally, is much older than the common law and probably contemporaneous with the advent of the civil law. That maritime law is a complete legal system can be readily seen from its component parts. As noted by William Tetley, maritime law has had its own law of contract-- of sale (of ships), of service (towage), of lease (chartering), of carriage (of goods by sea), of insurance (marine insurance being the precursor of insurance ashore), of agency (ship chandlers), of pledge (bottomry and respondentia), of hire (of masters and seamen), of compensation for sickness and personal injury (maintenance and cure) and risk distribution (general average). It is and has been a national and an international law (probably the first private international law). It also has had its own public law and public international law. Maritime law has and has had, as well, its own courts and procedures from earliest times.

As will be seen in due time, maritime law seeks to regulate personal and property relationships as well as contractual and tortuous relationships. The comprehensiveness of the law can also be seen in its administrative and few criminal provisions. In short, maritime law is a comprehensive system of law concerning maritime matters – both public and private, with the later forming the major part.

3. Special Legal Jargons

The study of maritime law usually employs the use of complex jargons which, in most cases, are alien to other areas of law. Understanding the subject matter without first knowing such shipping terms may often be difficult.  The presence of different jargons peculiar to this area of law may well be attributable to its unique development. Early maritime law –the basis of modern maritime law –is distinguishable from the development of other areas of law. Though first developed in continental Europe, the law relating to shipping was, in origin, based on customs only- “custom and usage of the sea” .(See the next section for details)

Though the forthcoming discussions reveal many of these special jergons, we may tentatively note some of them here: charter party, maritime lien, general average, and salvage.

Charter party: A charter party is a contract of lease of a ship in whole or in part for a long or short period of time or for a particular voyage (William Tetley’s Glossary of Maritime Law Terms, 2nd Ed., 2004).

Maritime lien: A secured claim against a ship (and sometimes against cargo or bunkers) in respect of services provided to the vessel or damages done by it (Glossary of Maritime Law Terms, 2nd Ed., 2004).

General average: The monetary contribution required of ship-owners and cargo owners (or their respective insurers) in respect of general average expenditures and general average sacrifices. Cargo's claim for general average contributions against the ship is secured by either a maritime lien or a statutory right in rem depending on the jurisdiction concerned (Glossary of Maritime Law Terms, 2nd Ed., 2004).

Salvage: Rendering assistance to ships at distress. Rules awarding such assistance have long been prescribed in various maritime nations.