Shipwreck, Jettison and Ship Collision in Maritime Law
Shipwreck, Jettison and Ship Collision in Maritime Law
Abstract and Keywords
In this chapter the regulations concerning shipwreck, jettison and ship collision included in the written sea laws from the whole of northern Europe are analysed and compared. With regards to all three subjects, the regulations show some variation between them. Some of these variations between the regulations can be explained by considering the changes in the organisation of sea shipping in the thirteenth to fifteenth centuries. Others cannot, however, and it is concluded that there was no complete commonality between the written laws of northern Europe.
Of all things, in sea-shipping there are certain inevitabilities present in nature and imposed by circumstances, which lead to the formation of identical rules as regards content, regardless of geographical location or the state of legal culture at a particular time.1
This quote, part of Landwehr's argument that it cannot be assumed that Roman law was adopted in Hamburg solely on the basis of a similarity in the regulation of jettison, must be kept in mind when comparing the content of the written laws which were introduced in the previous chapter. Too often the influence of one law on another is assumed simply because they regulate matters in a similar fashion. There are, however, certain preconditions in every situation regulated by law, and only a limited number of solutions that law can offer. It is only logical, then, that different law compilations should sometimes come to similar solutions for a particular legal problem.2
The question that will be answered in this chapter is whether the written law compilations available in northern Europe did indeed come to similar solutions as regards the regulation of shipwreck, jettison and ship collision, and thus whether there was communality in this respect, even if direct influences cannot be established.3 To answer this question, the regulations of all the written sea laws available in northern Europe concerning each of these subjects will be compared. Special emphasis will be placed on those aspects of the law that were likely to come up in court. These are the most relevant to our research on legal practice in the town courts and represent the more interesting legal problems. Another aspect considered will be the differences within the legal compilations (for example when the Ordinancie and the Rôles d'Oléron, both part of the Gotland and Wisby Sea Laws, (p.28) regulated matters differently). Did variations in the written laws continue to exist in these compilations or were these eradicated?
A skipper and his crew had many options to try and prevent wreckage in a storm, but these efforts were not always successful. Besides the risk of losing the ship and the cargo, there was, in the earlier Middle Ages, also a danger of becoming enslaved or being killed on reaching the shore after a shipwreck, in addition to having one's goods confiscated.4 From about 1100 this risk slowly subsided when the right of wreck became one of the regalia of kings. Merchants' lives were thereafter protected by the royal peace. Groups of merchants would eventually be exempted from the law of wreck by privilege, meaning that they were free to salvage their own goods or have them salvaged, but shipwrecked persons were still occasionally robbed of their goods. The risk of losing everything had, however, been reduced significantly. Nonetheless, shipwreck remained one of the worst things that could befall a vessel.
Although the law of wreck and everything related to it (salvage, salvage money, and so on) is noted in some of the sea laws (mainly those of the towns), the subject will not be handled here, as it is, strictly speaking, part of land law. Objects that washed ashore fell under the jurisdiction of territorial lords or, in some cases, towns. The subject is, moreover, large and interesting enough to deserve separate research.5
The main question dealt with in the regulations regarding shipwreck was the payment of freightage.6 This concerned how much freight had to be paid and whether it was due for the whole cargo or only for those goods that were saved. Most of the sea laws agreed as regards the second element: freightage was due only for salvaged goods.7 The Wisby Town Law alone insisted upon half freight for lost items. According to this law, full freight was due for saved goods, and the same was stipulated in the Ordinancie, an article in the Lübeck Town Law and the Hamburg Ship Law of 1497.8 The (p.29) Hamburg Ship Law of 1301/6 and the Lübeck Sea Law spoke merely of ‘freight’: ‘Where (when) a ship breaks: from that which is salvaged of the cargo, the skipper shall have his freight.’9 Since no further specifications were given, this would have meant the amount of freightage as agreed before the journey, that is full freight. Another article of the Lübeck Town Law (K 107/133) laid down half freight. This article is slightly older than that stipulating full freightage mentioned above, but it is unclear why two different rules have been included in this law.10
According to the Rôles d'Oléron the merchants would only have to pay freightage ‘de taunt, come la nef ad fet de veyage sil plest al mestre’: ‘for as far as the ship has made its voyage if it pleases the master’.11 In some of the versions of the Vonnesse van Damme this has not been translated accurately: ‘die vracht alzoe verre als die meester ghenoeghet’: ‘the freightage as far as it pleases the master’.12 What is meant in the Rôles is freight pro rata itineris, relative to the part of the journey that had been travelled. If the master so chose, he could also repair the ship or hire another to complete the voyage. The compilations of the Vonnesse and the Ordinancie would have included two differing rules, but since the regulation from the Rôles had been corrupted in the translation, it is likely that the full freight rule from the Ordinancie was enforced in those places where the Gotland and Wisby Sea Laws were used. The Scottish translation partly follows the French text (‘of als fer as he has done his vayage’), leaving out ‘sil plest al mestre’. It also speaks of ‘schipmen’ rather than merchants, which confuses the matter somewhat.13
In the Hanseatic statutes of 1447 a freightage pro rata itineris was established too, but only for vessels that wrecked after the midway point of their journey. If they wrecked before that point, half freight was due.14 A by-law from Danzig distinguished between ships that wrecked in the harbour or within sight of it, and vessels that foundered further away, namely ‘afken-nyngh des landes’. In the first case half freight was due for salvaged goods; in the second full freightage had to be paid.15
When goods were salvaged after shipwreck, their condition would often have deteriorated as a result of exposure to salt water. In spite of this, merchants were expected to pay freightage. A decree from 1372 in the Kampen Town Law provided another possibility: the merchants could give up their goods instead of having to pay freightage: ‘mochte dat guet ligghen laten (p.30) vor die vracht’.16 This practice is called ‘abandon’ and was adopted by the Hanse also, in 1447.17 The goal of abandonment was to shift some of the loss in value of the goods caused by the shipwreck to the skipper, whereas before this loss was borne solely by the merchants.18
Besides the payment of freightage after shipwreck, a few more questions were regulated in the northern European laws, but most of these are restricted to one or two law compilations. Some laws stipulated that it was the crew's duty to assist with the salvage and to save as much as possible of the ship and its cargo.19 The Hanse from the early fifteenth century decreed punishments for sailors who refused to help.20 The Bergen Town Law laid down that the members of a shipping venture did not have to remain with a wrecked ship if it had foundered in enemy territory.21 According to many of the laws, the skipper was allowed to endeavour to repair the ship.22 The Rôles d'Oléron stipulated that he was also allowed to hire another vessel to complete the journey.
In the Hamburg Ship Laws of 1301/6 and 1497, the Lübeck Sea Law and the Riga Town Laws, the order of salvage was established: people were to be saved first, followed by the goods that could be salvaged easily (‘rede goet’) and the ropes.23 Subsequently, the merchants would be allowed to take the ship's boat to save any goods that had drifted from the wreck.24 In the Wisby Town Law, finally, the arrangements relating to a ship wrecking in the town's harbour were regulated. If it foundered there, it had to be removed within a month in summer and within eight weeks in winter, on pain of a fine. If the ship was not salvaged within this period and damage was caused because of it, this had to be compensated.25
The rules regarding shipwreck in the written laws of northern Europe were mainly restricted to the regulation of the payment of freight. This is largely due to the fact that many of the consequences of shipwreck were covered by the law of wreck, which is not discussed here. Insurance did (p.31) not yet exist in northern Europe and reimbursements for lost goods did not normally take place.26 Besides similarities between the regulations with regard to some elements, the laws varied as to how much freight should be paid: all or half of it, or a freight pro rata itineris. The possibility to leave those goods that had been damaged instead of paying freightage (‘abandon’) was laid down in the Kampen Town Law and the Hanseatic statutes of 1447 only. Based on this we have to conclude that no general rule in northern Europe existed in the Middle Ages with regard to the payment of freight after shipwreck.
Jettison and other forms of general average
The theme of average is the most important, but also the most complicated, in maritime law.27 The term itself (German Haverei; Dutch averij; French avarie; Italian avaria; derived from the Arabian awārīa, meaning damaged goods) does not appear in northern Europe until after 1500. This fits in with the general picture of this region following a century or two behind the Mediterranean with regard to technical, organisational and legal innovations in the shipping business.28 The laws do, however, deal with those cases which, in present-day law, would fall under the regulations of general average. Starting with jettison, the principle of distributing damages amongst all involved in a sea journey would be applied on increasingly more diverse average cases as the Middle Ages progressed.
In present-day law, a distinction is made between general average, particular average and petty averages.29 General average is a contribution made by all parties concerned in a sea adventure towards a loss brought about by the voluntary sacrifice of the property of one or more of the parties involved, for the benefit of all. This includes jettison, the cutting down of the mast, the cutting of ropes or cables, the slipping of the anchor, the deliberate running aground of a ship to prevent shipwreck, the sailing for a port of refuge for the same reason, the protection of the ship against enemies or pirates and the payment of ransom to the same.30 In the Middle Ages, another form of general average existed: when a ship was in danger (p.32) of foundering, a pilgrimage could be pledged to God in order to gain his mercy and prevent shipwreck. The costs of this pilgrimage and an offering (lotelghelt) were distributed among all involved in the same manner as the contribution for jettison and this form of general average is therefore always directly related to jettison in the sources.31
Particular average signifies the damage or partial loss incurred by a ship, cargo or freight as a result of an unavoidable accident. It is borne by the individual owners of the articles damaged. Petty averages are various small charges that occur regularly and are necessarily paid by the master in the usual course of a voyage, such as port charges, common pilotage and the like. From the seventeenth to nineteenth centuries, but in some cases already in the Middle Ages, these costs were divided between the owners of the ship (to one-third) and the owners of the goods (to two-thirds). In present times these costs are generally paid by the owner(s) of the ship.32 In medieval northern Europe, the distinction between these different forms of average was not made, and only the main cases of general average were dealt with in most of the laws: jettison and, related to it, the cutting down of the mast.33
The reason for or the aim of jettison
The reason jettison and other forms of average were practised was to prevent even greater losses of life, ship and cargo. This aim is named in some of the laws: ‘to save the bodies (lives) and the ship and the goods and the wines’ in the Rôles d'Oléron; ‘to save life, ship and goods’ according to the article in the Ordinancie concerned with the cutting down of the mast.34 Although the older Lübeck and Hamburg laws do not mention this aim, it is referred to in the 1259 letter from Hamburg to Lübeck: ‘for the protection of lives and in order to save the goods’.35 In the 1497 Hamburg Ship Law, both jettison and the cutting down of the mast were to be carried out to save ship and cargo.36 In other laws, the reason for the jettison or (p.33) related measures was named: ‘were it that a ship was in distress’, ‘out of need’, ‘because of unfortunate danger’, ‘because of an emergency through wind or other circumstances’, ‘where people are in distress through water’, ‘because life, ships and goods are in danger’.37
Although some written laws specified that a jettison was to be carried out because of a storm or bad weather (‘torment’, ‘par force del temps’, ‘by onweder’), others only (or also) laid down a more general situation of distress (‘noot’, ‘dor noet willen’, ‘infortunium’) as the reason for lightening the ship.38 The laws did not distinguish between accidental circumstances and situations caused by human error, for example when goods had to be cast because the skipper had misjudged the danger of an approaching storm.39 This is important, as it means that the compensation for lost goods or gear is, in general, divided among all parties on board, irrespective of careless acts. As will become evident when dealing with ship collision, medieval law, in general, only distinguished between intent and accident.40
The decision to jettison goods or cut down the mast
According to some of the Scandinavian laws, the majority of those on board decided whether goods were to be cast or not.41 This is because, in the Scandinavian shipping ventures, all on board were considered equal, and decisions were made by majority vote. In the Rôles d'Oléron, the procedure was regulated differently. If the skipper thought it necessary to cast goods overboard, he had to ask permission for the jettison from the merchants. If they did not agree to the casting, however, the skipper could still decide to take action if he considered the situation sufficiently desperate. In this case, if the ship subsequently came safely to land, a third of its crew had to swear the jettison had taken place out of need.42 Thus, whereas in the (p.34) Scandinavian shipping ventures crew and merchants were still the same, in north-western Europe (France, Flanders, England and Scotland) they had become two different groups. The skipper had more power in the north-western European laws, as he could apparently overrule the merchants with the support of a third of his crew. This is part of the developments regarding the position of the skipper, who became increasingly more independent from the merchants while on the ship, which was sketched in the first chapter. In the Ordinancie, the law had developed further still; there the possibility that none of the merchants was aboard the ship during the journey was taken into account: ‘And was it, that no merchant was in the ship and they had need to cast: whatever the skipper thought best with the majority of his company, is what they should do.’43
The Wisby Town Law and, under its influence, the third Novgorod Skra also include consultations as part of the regulation of jettison. In both laws, it was laid down that, in case of a conflict about the question of whether to cast or not, the majority decided.44 In this case, it is not mentioned specifically that the skipper had to be part of this majority, as he did according to the Ordinancie. Judging by the similarity to the earlier Scandinavian laws, this regulation from the Wisby Town Law, recorded in a version from 1341/4, is probably a remnant of an older law.45 This older law was also adopted in the Novgorod Skra of about 1325, where it replaced an article which had originated in Lübeck and which made no mention of any consultations.46
In fact, none of the other town laws, except the revised Hamburg Ship Law, in which Article 4 of the Ordinancie was adopted, laid down rules for deliberations about whether or not to cast goods. According to Landwehr, a similar practice may nonetheless have existed in the northern European towns, since the north-western European and the Scandinavian laws agree on this point.47 This is, however, uncertain.48 There is even less certainty as regards the regulations that may have existed in the northern European towns concerning the overruling of merchants by the skipper in cases of jettison, since these were different in western Europe and Scandinavia.
As regards the cutting down of the mast, the Rôles d'Oléron and the Ordinancie laid down similar rules to those for jettison, although only very (p.35) concisely.49 In the Ordinancie, for example, we read: ‘The skipper is held to ask the merchants and tell them (complain to them) of his need.’50 The Wisby Town Law, on the other hand, stipulated that the damages for the mast were to be borne by the skipper alone; there was no need for him to consult the merchants.51 Again, an older rule found its way into the fourteenth-century law.52 In the third Novgorod Skra from 1325, this rule from the Wisby Town Law was not adopted. Instead, the stipulation from the second Skra was maintained, which had been copied from the Lübeck Town Law.53 The revised Hamburg Ship Law is the only compilation to display a more elaborate regulation, which resembles that regarding jettison.54
The Kampen Boeck van Rechte and Gulden Boeck do not mention the consultation of the merchants in case of a jettison, but they do stipulate the need for the skipper to seek approval from the people on the ship before cutting down the mast: ‘the skipper cut down the mast or slipped the anchors with council and consent of those people that were on the ship …’.55 This rule may have come into existence at a later time than that on jettison, which would explain why consultation is included only in the latter. But since the difference was maintained in the Gulden Boeck, there is another possibility for the distinction. In case of a jettison, the skipper had to compensate for goods that were not his. It was in his own interest therefore not to cast goods unless it was absolutely necessary. In case of the cutting down of the mast, however, the merchants had to compensate for gear that was not theirs. If the shipmaster was to acquire compensation from the merchants, it was necessary to have the latter's consent before the mast was discarded. It is possible, therefore, that the skipper only needed to consult with the merchants in the Kampen laws when the mast had to be cut, and not when goods had to be cast. The same was most likely the case in thirteenth-century Hamburg, Lübeck and Riga, as will be discussed below.56
After the vessel had come safely to shore, compensation had to be made for the goods that had been cast overboard to prevent the loss of the rest of the cargo, the ship and the lives of the men aboard. First, the value of the goods that had been lost and of those that had been saved had to be established. Second, the costs of the damage had to be divided among all involved in the sea journey. When, probably from the thirteenth century, the skipper (as representative of the shipowner(s)) had to compensate towards the loss of goods through jettison as well, the value of the ship and/or of the freight also had to be set.
The value of the goods was, in general, assessed at the estimated selling price of the goods in the port of destination. This is the case in the Scandinavian laws in which the valuation of the goods is covered (the Bergen Town Law, the Jónsbók and the Wisby Town Law), as well as in the Lübeck Town Law and in both Novgorod Skras.57 The question is not regulated in the older Hamburg Ship Law and the Lübeck Sea Law, but it does appear in the additions to the revised Riga Town Law. There, the goods were valued according to the market price in the port of origin.58 It is not known why some laws specify the market price in the port of destination and others in the port of origin.
The Kampen Boeck van Rechte stipulated that the merchants should state the value of their goods under oath (‘toe eends oeren rechte’).59 When the article was renewed in 1407 the provision had changed: ‘And the merchant shall contribute with the value of his goods that remains after having paid freight and other costs, the price being reckoned between the least and the most, within fourteen days.’60 This definition was also adopted in the Gulden Boeck (Article 5). The value of the goods was thus established at the average of the cost and selling prices.
In the Rôles d'Oléron the value of the jettisoned goods was assessed according to the price of the goods that had been saved: ‘Those [goods] that will be jettisoned, should be appraised at the value of those that will come to safety, which shall be sold and divided pound by pound among the merchants.’61 Since the Rôles were written for the wine trade, and it would (p.37) be mostly wine that was cast, this rule made sense: the lost wine was valued according to the price of the wine that was saved. On vessels that carried a variation of goods, this would, however, have been difficult. What would have happened, for example, when all goods of a particular sort had been cast?
The section about the setting of the value of the goods and the division of the damages in the Rôles d'Oléron has been translated differently in the various versions of the Vonnesse van Damme:
Ende tgoed, datter gheworpen wart, wart ghepriist ten fuere van datter behouden wort ende ghedeelt, van ponde te ponde, onder de cooplieden.62 (Codex Brugensis)
Unde dat goet, dat dar worpen was, scal sin geprijst in dem marct punt na punttale, unde gedeelt under de cooplude up dat gud, dat dar beholden wort.63 (Ms. Bruges/Cologne)
Ende het sal worden gepryst van ponde tot ponde en gedeelt onder den coopluyden, op ̒t goed datter behouden wert.64 (Vonnesse)
The first of the three texts is the most clear-cut and stays closest to the French, although even here parts of the article are missing. The other two translations, of which one is probably a bad copy of the other, are hardly understandable without comparison to the Rôles d'Oléron. The same is true as regards the Scottish translation. There it says: ‘It sal be prisyt and made ilk lib. utherys bruthyr betwx the chepmen’ (‘it shall be priced and every pound made the other's brother between the shipmen’).65 What becomes evident when considering these translations is that they were not always made by men with a knowledge of the law.66 The fact that these corrupted texts were subsequently copied regularly without change does raise doubts as to whether copies of these laws were used at all when they were unusable in legal practice.67
In the Ordinancie the article is not entirely clear either, but only because it does not specify which market is meant: that at the port of origin or that (p.38) at the port of destination.68 Finally, the Gotland Sea Law stipulated in its Article 7 (which is found in only a few manuscripts and in the printed edition of 1505, but not in that of 1532)69 that the value of the goods should be set at the price which could be obtained for them at the market where they were meant to be sold. One should remember that the abovementioned articles of the Rôles d'Oléron, the Ordinancie and the Lübeck Town Law were all copied unchanged into the Gotland Sea Law. This means that there are several different regulations in this compilation, which was copied regularly into the early modern period.
The compensation of the damages ‘mark markelike’
As regards the compensation of the damages caused by a jettison, it was laid down that these should be distributed among all involved in the journey, meaning both the merchants and the skipper as representative of the shipowner(s). The goods were compensated according to the principle of ‘mark markelike’ or ‘na marktal’. This means that the damage was divided proportionally according to the value of all involved goods, every mark considered equal.70 This compensation of goods ‘mark by mark’ (or a similar definition) can be found in most laws.71
The Rôles d'Oléron stipulated that the saved goods should be sold and then divided pound by pound (‘livere a livere’) among the merchants.72 Although a ‘livere’ can be taken to mean a pound in weight, and Landwehr translated it as such,73 it should be considered to mean a pound in money. It does not make sense to sell the saved goods and then divide these same goods among the merchants pound by pound. The fact that the lost goods were estimated according to the value (‘foer’) of the other goods confirms this.
The wording of the regulations in the Bergen Town Law and the Jônsbôk indicates that jettisoned cargo had not always been compensated mark by mark: ‘jettison should be divided according to the value of the goods and not in accordance with how many people were aboard or with the weight of the goods’.74 The fact that this was mentioned specifically suggests that in (p.39) earlier years jettison was compensated according to ‘mantal’ or ‘punttal’, that is, according to the number of men involved or the weight of the goods.75
Meanwhile, the procedure described in the revised Riga Town Law was unique.76 Here the compensation is calculated by pounds in weight (‘na punttalen’). Special arrangements were made for some valuable goods that may have been relatively light: from a value of three marks of silver per pound or more, goods were to be counted doubly.77 In a later addition, this was further clarified by stipulating that goods cheaper than three marks per pound should be reckoned ‘punt vor punt’.78 The value of the ship was estimated similarly, as will be discussed below.
The inclusion of ship and freightage in the compensation
In the older Scandinavian laws, the losses caused by a jettison were divided equally among all persons aboard the ship.79 The value of the ship and the freightage were, however, not included in the assessment of the compensation of any losses to the cargo. The hásetar paid a fee to the stýrimaðr for the use of the ship, and any risks of damage to the ship fell solely to the owner. The members of the shipping venture were only united in transporting goods and the risk this involved.80 The same is the case in the English Leis Willelme of the twelfth century.81
When considering the Rôles d'Oléron, it is possible to tell that the ship and the freightage were only recently included in the compensation of jettison. Following the section regarding the selling of saved goods and the distribution of proceeds ‘livere a livere’ among the merchants, the article stipulates: ‘And the master must then say whether to count the ship or his freightage, at his choice, to compensate the damage’.82 Since the compensation of the goods among the merchants had already been completed in the previous sentence, this line must have been added at a later date. Otherwise, both parts of the reimbursement would have been combined in one sentence. This later addition may have confused the Flemish copyists, resulting in unusable translations of the entire regulation. The Scottish translation of this specific section also appears muddled. There, (p.40) it is suggested that the skipper should be compensated (by the shipmen?) for his damages (‘and his skathys to be amendyt’), although the article as a whole is not entirely clear.83
In the Hamburg laws, a similar transition is recognisable. In the 1259 letter from Hamburg to Lübeck it is stated that the skipper would have to compensate, but it is not specified whether he had to contribute with the value of his ship or his freightage: ‘to it shall be contributed by the master of the ship with the merchants, mark equals mark’.84 Landwehr argued that the word ‘with’ stressed that this is a change towards an earlier rule.85 The change is clearer in the older Hamburg Ship Law: ‘Where such a ship casts goods out of need, the ship shall also be reckoned mark by mark’.86 This time, the word ‘also’ indicated a recent change to the rule. The fact that the merchants had to contribute too was taken to be generally known.87 In the Lübeck article on jettison, which was based on this Hamburg rule, the contribution of the merchants was included in the wording, and in the revised Riga Town Law ‘dat scep unde dat guth’ were also named.88
In none of the laws from Hamburg, Lübeck and Riga is the freightage mentioned as part of the compensation, nor is it in the Wisby Town Law, the Novgorod Skra, the Bjärkoarätten or Article 7 of the Wisby Sea Law. Besides the Rôles d'Oléron, in which the skipper had a choice to contribute with either his ship or his freightage (which choice disappeared in the Flemish and Scottish translations), only the Ordinancie and the Kampen Town Law included the freightage in the compensation too.89 By contrast with the rule in the Rôles, the Ordinancie stipulated that the merchants had to choose between ship or freightage: ‘And the shipmaster shall contribute from his ship or of his freightage, whichever the merchants choose’.90
(p.41) This difference signifies the difficulty medieval law had in devising arrangements for settlement in jettison cases that considered all factors. When a jettison was successful, not only were the ship and the remaining goods saved, but the skipper would also receive freightage (for the goods that were saved) which would otherwise have been lost.91 This freightage should therefore normally have been included in the compensation. Consequently, that part of the freightage that was lost to the skipper (for the goods that were cast) should also have been counted as part of the loss. This loss of freightage, which resulted in a loss in profit for the skipper, was not a direct consequence of the jettison and it was therefore not considered damage according to medieval laws.92 This is probably also the reason why freightage was not included at all in the sea laws of Hamburg and Lübeck and those of the other Baltic towns. Only in the sixteenth century, when maritime law became a field of interest for learned lawyers, was the material concept of damage replaced by one relative to economic loss.93 From that time, freightage was included in the compensation, both as part of the damages and as part of the compensation.
Although the articles in the Rôles d'Oléron and the Ordinancie did include the freightage, and thus acknowledged that the amount of freightage received by the skipper was influenced by the jettison, the compilers did not differentiate between the loss of freightage as a result of the jettison and the gain in freightage when the jettison was successful in preventing shipwreck. Therefore the skipper (or in the case of the Ordinancie the merchants) was given the choice whether the shipmaster would contribute with either the ship or the freightage.
The variation between the Rôles and the Ordinancie was probably caused by the fact that the inclusion of ship or freightage in the compensation was a new addition when the Rôles were first recorded. Because the skipper (again, as representative of the shipowners) was put at a disadvantage compared to the old situation, in which he did not have to contribute at all, he was at least given the choice between contributing with his freightage or his ship. In the Ordinancie this was different; the rule had been valid for a while by then. The regulation now became fairer towards the merchants, allowing them to choose, while they had previously been at a disadvantage when the skipper was allowed to choose between the ship and the freightage (and would understandably choose the less valuable of the two). The difference between Rôles and Ordinancie did not cause a problem in the Waterrecht, in which both rules were included, as the choice of the skipper included in the Rôles had been omitted when the text was translated into Flemish.94
(p.42) The problem of the freightage was solved differently in the town of Kampen. Initially, the Boeck van Rechte laid down that the skipper was to contribute with the ship and the freightage paid to him from the saved goods.95 This was changed in a council decree of 1407. From that time freightage would also have to be paid for jettisoned goods.96 The arrangement thus became fairer: because freightage was paid for all the goods, the difficulties concerning lost freightage versus gained freightage, discussed above, disappeared. Since the skipper suffered no losses as a result of a jettison, he had to contribute with both his ship and freightage.
The Kampen Town Law was not the only law in which freightage for saved and cast goods was laid down. Article 7 of the Gotland Sea Law, which can be found in only a few manuscripts and in the 1505 edition, also provided that freightage should be paid for all goods. Furthermore, in at least one manuscript of the Ordinancie a copying mistake crept in which resulted in a new rule. Article 3 of this law regulated the selling of goods during the journey in emergency situations.97 The word ‘vercopende’ (‘selling’) was changed to ‘werpende’ (‘casting’) by omitting the ‘co’, thus changing the entire meaning of the article. The article now appeared to be dealing with jettison and stipulated that no freightage was due when a jettison was undertaken in the first half of the journey, whereas full freight had to be paid when goods were cast overboard in the second half of the journey. Although only one known manuscript displayed the article in this fashion, it was adopted in the Swedish Sea Law of 1667 and in the Rotterdam Insurance and Average Decree of 1721.98 In the Middle Ages, the article probably had little influence, as did article 7 of the Gotland Sea Law.
The valuation of the ship
In order to calculate the compensation payable by the skipper after a jettison, the value of the ship had to be established. In the Ordinancie a method (p.43) called setten was introduced. According to this method, the skipper had to set a price for his ship, upon which the merchants had the choice either to accept this valuation for the calculation of the compensation, or to buy the ship for this amount. This method prevented the skipper from fixing too low or too high a price. The value of the vessel was assessed according to its state after the journey, as the ship may have been damaged by the storm in which the jettison was carried out.
This method was adopted from the Ordinancie by the compilers of the 1497 Hamburg Ship Law. Earlier Hamburg and Lübeck laws do not mention the value of the ship or how it was to be assessed. It is possible that the method of setten was used in practice in these towns before the late fifteenth century, but there is no evidence of this in the written laws. In Kampen before 1407 a different method was used to estimate the value of a vessel: the skipper had to assess his ship under oath.99 In 1407 setten was adopted in Kampen for the valuation of a ship after jettison. This method had already been in use for the selling of ships before then.100
In Riga the compensation of jettison was reckoned per pound (‘na punttale’), as explained above. In accordance with this, the value of the ship had to be converted to pounds in weight. As in the valuation of the goods, every three marks were reckoned as a pound. The value of the ship in marks therefore had to be divided by three to obtain the weight in pounds that could be used for the calculation of the reimbursement: ‘The ship and the goods that were cast shall be reckoned: what they are worth shall go three marks for a pound.’101 How the value of the ship was to be estimated is not further explained. This method of calculating the contribution of the skipper and the merchants to the reimbursements after a jettison is unique in northern Europe.
The compensation for damage to the ship
The subject of the cutting down of the mast has already been discussed. Like jettison, this measure was carried out in emergency situations in order to save the ship, the cargo and the people on board. Because, like jettison, it was a voluntary sacrifice for the benefit of all, compensation took similar forms. As explained above, the risks of damage to the ship were carried wholly by the owner(s) according to the older Scandinavian laws. The interests of the shipping venture were concentrated solely on the safe transportation of the goods; the ship was not considered when calculating the reimbursement of cast goods and all damage to the ship was borne solely (p.44) by the owner(s). This is laid down explicitly in the Swedish Bjärköarätten and in the Wisby Town Law.102 In the Norwegian and Icelandic laws, on the other hand, neither deliberate nor accidental damage to the ship was included.
In the Hamburg Ship Law, the Lübeck Sea Law and the Riga Town Law the cutting down of the mast was regulated as follows: ‘Are the mast or the ropes cut, the shipmaster bears the damage alone, unless wilkore was done: of this wilkore shall be testified by those that were in that ship.’103 The word wilkore in this sentence is confusing. It normally means by-law or statute, but it is utilised differently here. Landwehr has argued that it indicated that an agreement had been made before the journey, which settled whether the merchants would compensate in cases of deliberate damage to the ship.104 According to him, this is confirmed by the regulation in the revised Riga Town Law in which the word wilkore was replaced by voreword, which means a preceding agreement.105 This replacement can, however, also have been made because the Hamburg article did not correspond with Riga law.106 As it happens, wilkore can also simply mean consent and, as such, the regulation would read ‘those aboard the ship must testify that they have given their consent’, which makes more sense. If an agreement had been made before the journey, witnesses, who would have been present at any legal transaction, would have been able to give testimony that such an arrangement had been made (and not the people on board ship as the article suggests). Moreover, the situation in which the mast was cut down could only be assessed when it occurred, and not beforehand.
It is telling in this respect that Von Bardewik copied the Hamburg article when compiling the Lübeck Sea Law and not the regulation recorded in the Lübeck Town Law, which provided that the cutting down of the mast should be compensated (whereas its accidental loss would not) as early as 1257.107 This latter provision was repeated in the Low German version of the Lübeck Town Law of the late thirteenth century:
If one should lose a mast or a sail during sailing by accident, it should not be compensated for by those in the ship. When, on the other hand, it is cut down out of need and cast, the ship and the people aboard the ship shall contribute ‘na marktal’ and the skipper shall contribute his share.108
(p.45) Considering that many of the articles of the Hamburg Ship Law were amended by von Bardewik in his Lübeck Sea Law, it is noticeable that he copied the article regarding the cutting down of the mast without alterations. If Lübeck law included the compensation of the cutting of the mast as early as 1257, why would von Bardewik adopt a rule that such damages would not be reimbursed unless an agreement had been made before the journey?109 The Hamburg article must, therefore, be understood to mean that consent needed to be given for the cutting, and that the damages would be reimbursed if the merchants had given their consent.
The rule from the Lübeck Town Law was adopted in the second and third Novgorod Skras (Article 58) and similar regulations are recorded in the Rôles d'Oléron, the Ordinancie, the 1497 Hamburg Ship Law and the Kampen Town Law. The latter also includes arrangements regarding how to assess the value of the different shipping gear: the mast should be estimated at the purchase price, whereas the anchor should be valued in accordance with its state when it was dropped. Both assessments had to be conducted under oath.110
Finally, an interesting remark is included at the end of the article in the Kampen Boeck van Rechte and Gulden Boeck:
We have written this law regarding ships that come to our port with guests or with burghers [of Kampen] and when they come to other ports in other lands, they should abide by the law that is decent and customary there.111
Apparently, the Kampen council knew or assumed that different regulations existed elsewhere in Europe. The remark also indicates that the council expected Kampen merchants to subject themselves to foreign laws when involved in an accident abroad. This subject will be further explored in Chapter 6, but the remark offers convincing evidence that different rules existed in northern Europe regarding the cutting of the mast at least, but probably concerning other subjects as well.
The theme of general average in medieval maritime law is a diverse and complicated matter. The main developments that took place in the regulation of the two main examples of average, jettison and the cutting of the mast, corresponded to the changes in mercantile practice discussed in Chapter 1. In the older Scandinavian laws the ownership of a vessel was regarded as completely separate from that of the cargo. When goods were cast overboard, (p.46) the damages were distributed between all those who had freighted goods aboard a particular vessel, whereas damage to the ship was borne solely by its owner(s). A change took place in the thirteenth century. This change is evident in the Rôles d'Oléron and in the Hamburg Ship Law, in which the shipmaster, as representative of the shipowner(s), was made to contribute to the compensation of jettison, since he profited from it too. From that time, the skipper contributed with his ship (Hamburg, Lübeck, Riga, Novgorod) ; with his ship or his freightage as determined by the skipper (Rôles); with his ship or his freightage as chosen by the merchants (Ordinancie, Wisby Sea Law) ; or with his ship and his freightage (Kampen and some manuscripts of the Ordinancie). As a consequence of this change, the damages as a result of the cutting of the mast were compensated by the merchants in a similar manner (Lübeck, Novgorod, Rôles, Ordinancie, Hamburg 1497 and Kampen). The thirteenth-century laws of Hamburg (and the Lübeck Sea Law) and Riga decreed that all damages to the ship had to be borne by the owners, unless consent to the cutting had been given by the merchants.
That the freight was included in the compensation for jettison in only a few of the laws (and no communality therefore existed) is perhaps due to the difficulty the compilers of these laws had in grasping all the consequences of a jettison, and thus in establishing a fair claim settlement. Since no freight had to be paid for cast goods, the skipper lost part of his profit through the jettison. This loss was, however, not assessed in the calculation of the reimbursement. Only the ship or the freightage was included in this calculation according to some laws, whereas it was omitted altogether in others. The Kampen Town Law was the only law in which a reasonably fair claim settlement was laid down: freightage was due for both saved and cast goods, and as a consequence the skipper had to contribute to the jettison with both his ship and his freightage.
Ship collision is one of the oldest questions regulated in maritime law. Even if a skipper shipped his own goods on his own vessel, a law was necessary for those situations in which two vessels collided, in order to establish who had to pay damages and how much.112 Different forms of ship collision were handled in the northern European laws: intentional and accidental collisions; collisions on the open sea or in a harbour; during daytime or at night. The laws also differentiated between collisions in which one ship foundered and those in which the vessels were just damaged.113
(p.47) The question of intent was one of the main issues involved in the regulation of collisions.114 The innocence of the colliding skipper in this respect had to be established by his oath, and sometimes that of his crew, for example according to the Rôles d'Oléron, the 1259 letter from Hamburg to Lübeck and the 1497 Hamburg Ship Law.115 If the skipper refused to swear an oath, or when his guilt was established in another way, he normally had to reimburse all the damages done to the other vessel. This was not always expressed explicitly in the laws. In the Rôles d'Oléron, for example, it was only laid down that the skipper had to swear the collision was unintentional (Article 15), but not what the consequences would be of a refusal to do so. The same applies in both the Hamburg Ship Law and the revised Riga Town Law.116 The Lübeck Town and Sea Laws, on the other hand, provided for the reimbursement of all the damages when the skipper did not wish to swear an oath.117 In the Ordinancie, oaths are not mentioned, but since swearing was the usual method to establish guilt or innocence, it was most likely necessary. According to the Ordinancie too, a guilty skipper had to pay for all the damages. In the Wisby Sea Law a sentence has been added to Article 15 of the Rôles, which stipulates reimbursement of all the losses if the collision was intentional.118
In the Kampen Town Law a more severe punishment was decreed for the protagonist: the forfeiture of life and goods.119 It is the only regulation concerning ship collision in these laws; no rules regarding accidental collisions were included. With regard to intentional collisions, no form of reimbursement for the victim was specified; his losses were presumably compensated utilising the confiscated goods of the offender. Contrary to this, the older Scandinavian laws stipulated that the colliding skipper had to recompense his colleague for all the damages irrespective of guilt. In the Bergen Town Law a set value for every single part of the ship that could be damaged in a collision was laid down (Article 18). The Jónsbók, on the other hand, regulated that these parts had to be evaluated by knowledgeable men (Article 19). According to both, the damaged vessel had to be replaced if (p.48) it could not be repaired. If a collision had been intentional, an additional fine was imposed.
The wording of Article 15 of the Rôles d'Oléron indicates that a full reimbursement of damages by the colliding skipper had been the usual practice in north-western Europe before the thirteenth century as well:
And the reason why this judgement was made is that an old ship puts itself in the way of a better [ship] voluntarily if she [would be reimbursed] for all her damages from colliding with the other ship; but if she knows that she has to share half, she will want to stay out of the way.120
This rule was supposedly introduced to prevent owners of older ships from manoeuvring their vessel in the sailing route of a better ship, in the hope of receiving a full reimbursement when their vessel was damaged.121 From this follows that colliding ships had originally been liable for all the damages irrespective of guilt.
The northern European laws, in general, only differentiated between intentional and accidental collisions, but carelessness was occasionally punished as well. In the Rôles d'Oléron, a separate article regulated the situation in which two or three vessels were anchored in a shallow port. In this situation, the ships could be lying in a safe position initially, but a change of wind or tide could cause the turning circle of the vessels to coincide, which could result in a collision. When such a dangerous situation arose, the skippers had to raise their anchors. If they did not, and damage occurred, a full reimbursement was due by the careless skipper.122 In both the Rôles and the Ordinancie, it was laid down that, within the harbour, the anchor should be marked with a buoy. If an unmarked anchor caused damage, however, only half of it would have to be compensated.123 The Riga Town Law, finally, regulated night-time collisions. If two ships collided in the dark and one of them had been sailing with its lanterns unlit, the careless shipmaster had to settle all the damages if his ship ran into the (p.49) other vessel. If the other vessel collided with his, he was liable for his own damages.124
The laws also differentiated between collisions at sea, those near the shore and those in a harbour. In all situations, the damages to the receiving ship were divided between the skippers. This division is, however, not very clearly defined in most laws. In the Ordinancie, for example, we read: ‘Also, a ship […] that collides with another by accident: the damage shall be reckoned half’.125 With regard to the calculation of the compensation payments, the role of the cargo on board the colliding ship is also seldom transparent. In general, it was laid down that either the ship or the skipper was expected to ‘den schaden half ghelden’ (‘to reimburse half the damage’). From this follows that the merchants' goods on the colliding ship were probably omitted from the calculation.
The Rôles d'Oléron were more precise in this respect. They laid down that the damage to the receiving ship had to be divided equally between the shipmasters. In addition, the wine freighted on both vessels had to be distributed among the merchants from both ships to compensate for the wine that was spoilt in the collision.126 Although the words ‘livere a livere’ have been omitted here, the reimbursement of the wine seems to have been regulated like that after jettison. The reason the cargo was included in this article was that it specifically regulated a collision in which wine had spilt (‘Et y a des vins enfoundres’). Apart from the Ordinancie and the Hamburg Ship Law, none of the other laws considered damage to goods as a result of ship collision.
The Ordinancie, like the Rôles d'Oléron, regulated the compensation of damages to the ship and to the cargo separately:
Also, if it happens that one ship collides with another by accident, so that one ship remains lost with its goods, the goods in both ships should be valued as they were before either ship was lost; then so the price of both goods added up shall pay for the lost goods, pound equals pound, mark equals mark.127
The article in the Ordinancie handled a specific situation, that is to say a collision in which one of the ships sank with its cargo. Lost goods were compensated according to the value of the goods in both ships, as they were after jettison. Contrary to the regulation in the Rôles, however, the (p.50) compensation of the damages to the ship was calculated in the same manner:
Similarly the worth of both ships shall be estimated next, before the damage occurred; so the price of both ships added up shall pay for the lost ship, pound equals pound, mark equals mark.128
The reason why the skipper was not expected to simply pay half the damages can be gathered from the Hamburg Ship Law, which also handled collisions in which one ship sank:
But was the damage suffered by the ship and the goods that remained below greater than the ship that remained above is worth with its gear, as it was when it did its damage, the skipper and his goods should not have any further distress over it; and the merchants' goods that are in the ship that did the damage should not be held to contribute.129
This article provided for the possibility that a sunk ship with all its goods was worth more than the colliding ship with its gear.130 When two ships of significantly varying sizes collided, the situation could even occur in which the damaged ship was worth more than twice as much as the colliding vessel. To ensure that the shipowner(s) of the latter did not bankrupt themselves, the method described in the Ordinancie was used in which the value of both ships was taken into account. A significant difference between the regulations from Hamburg and the Ordinancie is that in the former the merchants from the colliding ship did not have to contribute to any damages, whereas in the latter they did (to the lost cargo).
The regulation of ship collision took different forms in the northern European laws of the Middle Ages. In the Kampen Town Law, for instance, only intentional collisions were dealt with, and briefly at that. In the Ordinancie, on the other hand, three articles are recorded that deal with different forms of collision. The question of intent was one of the main themes in the regulation of ship collision. Whether or not the damage had been done intentionally was established by oath and was instrumental in determining how much the colliding skipper was required to reimburse.
In the older laws, the colliding skipper was liable for all the damages.
(p.51) Intent was punished with an extra fine. From the time of the Rôles d'Oléron this changed. Only in cases of intentional collision would the guilty party have to reimburse all, otherwise – in accidental collisions – he was due to compensate for only half of the damages. This change suggests a more sophisticated understanding of liability in cases of ship collision. On the other hand, carelessness was only rarely dealt with in the laws; in general, they focused on the differentiation between intent and accident. According to the Kampen laws, skippers who ran their vessel into another on purpose lost their lives and their goods.
Damage to the cargo in ship collision was only considered in the Hamburg Ship Law, the Ordinancie and the Rôles d'Oléron. The laws had different solutions for this legal problem: in the Ordinancie and the Rôles the goods from the colliding ship were utilised towards compensating the damaged cargo, whereas according to the Hamburg Ship Law the skipper alone was considered liable. This is an important difference that remained in effect throughout the Middle Ages. Whereas the compilers of the 1497 Hamburg Ship Law adopted some rules from the Ordinancie, in this matter the regulation from the earlier version of the Hamburg law was maintained.
Common regulations in northern Europe?
Many situations at sea could result in damage to a ship or its cargo. As different interests were at stake when goods were transported by ship, these situations needed to be regulated by law. In the early days, when a ship and the goods it transported were all owned by a single party, rules were only necessary for ship collision. In the age of shipping ventures, the interests of the shipowner and the owners of the goods became strictly separate when it came to damage to the vessel or the cargo. The transportation of goods was an enterprise in which all merchants were involved on equal terms, and a loss through jettison of some of the cargo to save the rest would be shared by all who transported goods on board a single vessel. The owner of the ship would not contribute, and all damage to his ship, whether accidental or done deliberately to save the vessel, had to be borne by him alone.
This distinction between the shipowner's interests and those of the merchants disappeared in the thirteenth century. It became clear that both profited equally when measures were undertaken to prevent shipwreck. The regulations concerning jettison changed first, resulting in the consideration of the goods and the ship (and sometimes also the freightage) in the compensation of the losses. This was followed by a similar change in regulating voluntary damages to the ship. These general developments are all reflected in the laws; many of the differences between various regulations concerning shipwreck, general average and ship collision can be explained by considering these changes in the organisation of sea shipping. Some cannot, however, and it is these differences that are important when reaching a conclusion on the question of common regulations in northern Europe.
(p.52) As regards shipwreck, the question of freightage was answered variously. Although most sea laws laid down the payment of full freight when a ship had foundered, the Rôles d'Oléron, the Hanseatic statutes and a by-law from Danzig decreed a freightage dependent on the distance that the ship had travelled before it wrecked. As this variation could result in merchants having to pay a significantly smaller amount of money for the transportation of their goods, this can be considered a difference in regulation, even although the laws agree that freightage needed to be paid. In addition to this, the 1447 Hanseatic statutes also included the possibility to ‘abandon’ the damaged goods as an alternative to paying freight. The Kampen Town Law had already provided for this in 1372, but none of the other laws allowed for it.
Another question in which the laws varied was the compensation of damages in cases of general average. In some compilations, the freightage was included in the compensation of jettison, whereas in others it was not. None of the sea laws, apart from the Kampen Town Law, devised a fair claim settlement which took all elements of loss and gain into account. As regards the cutting of the mast, not all laws included the cargo in the compensation, which, as a consequence of including the ship in cases of jettison, it should have been.
Finally, variation also existed as regards ship collision. One question was the inclusion of the goods on colliding ships in the compensation of damaged or sunk vessels and their cargo, which differed between the Ordinancie and the Rôles on the one side, and the Hamburg Ship Law on the other. The amount of compensation that was laid down also varied. Most of the laws simply stipulated that both skippers should pay half the damages to the receiving ship. The Rôles d'Oléron and the Ordinancie, on the other hand, decreed a calculation similar to that in jettison; the first only as regards damaged goods, the second regarding both vessel and cargo when one of the ships had sunk.
So, even though many laws relating to the discussed subjects were in accordance and although some differences between the laws were due to natural developments in sea shipping, some important variations concerning all three themes existed in the sea laws. This drives us to conclude that the written laws of northern Europe did not contain common regulations as regards shipwreck, jettison and ship collision.
(1) Landwehr, Haverei, 104.
(2) Cordes, ‘Lex mercatoria’, after note 38, also warns researchers to ‘distinguish clearly between influences based on relations on the one hand and similar but independent developments on the other’.
(4) Niitemaa, Strandrecht in Nordeuropa, 58–9.
(5) Niitemaa's Strandrecht in Nordeuropa is very good, but is restricted in its geographical scope. Moreover, Niitemaa made little use of the large amount of correspondence that exists regarding the right of wreck.
(6) Freightage/freight here means a charge for the transportation of cargo.
(7) Oléron/Vonnesse, art. 4, also in Gotland SL, art. 18 and Wisby SL, art. 16; Ordinancie, art. 1, also in Gotland SL, art. 40 and Wisby SL, art. 37; Hamburg 1301/6, art. 14; Hamburg 1301/6 (additions), art. 36; Hamburg 1497, art. 6 and art. 43; Lübeck TL, art. 230; Lübech SL, art. 16; Kampen BvR, art. 98; Kampen GB, art. 9; Danzig, art. 2; HR 1447, art. 93.
(8) Wisby TL, art. 12; Ordinancie, art. 1; Lübeck TL, art. 230; Hamburg 1497, art. 6.
(9) ‘So wor eyn schip tobrikt, unde so wat van deme ghude gheberghet werd, dar schal de schiphere de vracht af hebben.’ Hamburg 1301/6 (additions), art. 36. A similar definition can be found in Lübeck SL, art. 16.
(11) Oléron, art. 4.
(12) Vonnesse (Kampen), art. 4, also in Gotland SL, art. 18; Wisby SL, art. 16.
(13) Bute Ms, art. 17.
(14) HR 1447, art. 94.
(15) Danzig, art. 2.
(16) Kampen BvR, art. 98; Kampen GB, art. 9.
(17) HR 1447, art. 93.
(18) Landwehr, ‘Prinzipien der Risikotragimg’, 607.
(19) Oléron/Vonnesse, art. 3, also in Gotland SL, art. 17 and Wisby SL, art. 15; Kampen BvR, art. 100; Kampen GB, art. 29; HR 1378, art. 2; HR 1412, art. 32; HR 1417a, art. 114; HR 1417b, art. 16; HR 1418, art. 20; HR 1435, art. 3; HR 1447, art. 30; HR 1482, art. 14. For exact references, see Chapter 1, n. 102.
(20) HR 1412, art. 33; HR 1417a, art. 115; HR 1417b, art. 17; HR 1418, art. 30; HR 1447, art. 31 and art. 41.
(21) Bergen, art. 9.
(22) Oléron/Vonnesse, art. 4, also in Gotland SL, art. 18 and Wisby SL, art. 16; Ordinancie, art. 1, also in Gotland SL, art. 40 and Wisby SL, art. 37; Hamburg 1497, art. 6; Bergen, art. 9; Bjarkayjarréttr, art. 6. In the last two, the skipper was given ‘half a month’ to repair the ship.
(23) Die ältesten Schiffrechte Hamburgs, ed. Lappenberg, cxxxviii, n. 3.
(24) Hamburg 1301/6, art. 28; Hamburg 1497, art. 42; Lübeck SL, art. 30; Riga I, art. 13; Riga II, art. 12.
(25) Wisby TL, art. 3.
(27) This paragraph is partly based on Landwehr's book on Haverei, which is very elaborate and cannot be matched (especially in its legal discussion) in the limited space available here. The comparisons are, however, largely my own, and occasional disagreements with Landwehr are noted as well.
(28) avariaLandwehr, Haverei, 5.
(31) Lotelghelt is dealt with in the same article as jettison in most laws (Ordinancie, Boech van Rechte, Gulden Boech). In the 1497 Hamburg Ship Law, it is handled separately, but the reimbursement is to take place ‘alse werpgelde’ (‘asjettison’). In the Riga Town Law, it is dealt with immediately after jettison. Ordinancie, art. 4, also in Gotland SL, art. 41 and Wisby SL, art. 38; Hamburg 1497, art. 32; Kampen BvR, art. 4; Kampen GB, art. 5 and 7; Riga II, art. 18. See also Chapter 5.
(32) Landwehr, Haverei, 4–5.
(33) To simplify matters, ‘the cutting down of the mast’ in this text stands for all deliberate damage that is done to the ship in order to save it and the goods and lives aboard.
(34) ‘Pur sauver les corps et la nef et les darres et les vins’: Oléron, art. 8; Vonnesse, art. 8, also in Gotland SL, art. 22 and Wisby SL, art. 20. A similar wording in: Oléron, art. 9; Vonnesse, art. 9, also in Gotland SL, art. 23 and Wisby SL, art. 21. ‘To beholdende lijff, schip ende guedt’: Ordinancie, art. 5, also in Gotland SL, art. 42 and Wisby SL, art. 39.
(35) ‘Ob tuicionem vite et bona obtinenda’: HUB I, no. 538.
(36) Hamburg 1497, art. 33.
(37) ‘Weert dat een schip noot hadde’: Ordinancie, art. 4, also in Gotland SL, art. 41 and Wisby SL, art. 38. ‘Dor not willen’: Hamburg 1301/6, art. 22; Riga I, art. 7; Riga II, art. 4 and art. 22. ‘Ex infortunio periculo’: Lübeck TL (1257), art. 94. ‘Propter necessitaient aure vel aliter qualitercunque’: Lübeck TL (1263), art. 99. ‘So war lude sint an water not’: Lübeck TL, art. 89, also in Gotland SL, art. 11; Novgorod II/III, art. 38. ‘Van node lyves, scieps ende gueds’: Kampen BvR, art. 5; Kampen GB, art. 14. There are similar definitions to be found in Wisby TL, art. 10; Lübeck SL, art. 24; Beigen, art. 10; Jónsbók, art. 10; Bjärhöarätten, art. 20.1; Gotland SL, art. 7; Leis Willelme, art. 37.
(38) Oléron/Damme, art. 8; Oléron, art. 9; Ordinancie, art. 5; Ordinancie, art. 4; Hamburg 1301/6, art. 22; Lübeck TL (1257), art. 94.
(39) Landwehr, Haverei, 12.
(40) In German: Absicht and Ungefähr. Richard Behrend, ‘Das Ungefährwerk in der Geschichte des Seerechts’, ZRG GA 19 (1898), 54. Only from the seventeenth century did legal scholars acknowledge that the consequences of carelessness needed to be judged differently from those caused by accident. For example, in Joachim Lucas Stein, Abhandlung des Lübschen See-Rechts , §§ 67–8, as cited by Landwehr, Haverei, 16.
(41) Grágás, art. 166; Bjärhöarätten, art. 20.1; Swedish TL, art. 11.
(42) Oléron, art. 8. In the Vonnesse van Damme (art. 8) three of the crew had to swear, in the Gotland Sea Law (art. 22) two or three. The latter was perhaps changed to fit the regulation of the Ordinancie (which also stipulated two or three of the crew, art. 4) in the same compilation. In the Wisby Sea Law (art. 20), it is again a third of the crew.
(43) ‘Ende were datter gheen coopman in den schepe were ende men noot hadde te werpen, wes dan die schipper guet duchte met den meredele van syne selschap, dat solde men daartoe doen.’ Ordinancie, art. 4.
(44) Wisby TL, art. 10; Novgorod III, art. 38.
(45) This is not the only regulation that is based on an older law, as will become clear again below.
(46) Article 38 of Novgorod II was based on Lübeck TL, art. 89.
(47) Landwehr, Haverei, 17.
(48) See below.
(49) Oléron, art. 9; Damme, art. 9, also in Gotland SL, art. 23 and Wisby SL, art. 21; Ordinancie, art. 5.
(50) ‘Die schipper is schuldich den coopluyde te vraghen ende te claghen synen noot.’ Ordinancie, art. 5.
(51) Wisby TL, art. 11.
(52) The older Scandinavian sea laws did not cover the cutting down of the mast, since the ship was not considered part of the shipping venture. See below.
(53) Novgorod III, art. 58 (the same as Novgorod II, art. 58, which was adopted from Lübeck TL, art. 153).
(54) Hamburg 1497, art. 33.
(55) ‘de sciphere mit rade ende mit hengnisse dier lude de waren in den scepe de mast corve of de benninghe slippern lete …’: Kampen BvR, art. 5; similar wording in Kampen GB, art. 14.
(56) See below. Hamburg 1301/6, art. 22; Lübeck SL, art. 24; Riga I, art. 7; Riga II, art. 4. Only in Lübeck TL (art. 153) is the cutting down of the mast definitely compensated for.
(57) Bergen, art. 8; Jónsbók, art. 10; Wisby TL, art. 10; Lübeck TL (1257), art. 94 and Lübeck TL, art. 89 (the section about the value of the goods is not found in the article in Lübeck TL (1263)); Novgorod II and III, art. 38.
(58) ‘Alse dat in deme markete ghecostet hevet’ (‘by how much they have cost at the market’): Riga II, art. 22.
(59) Kampen BvR, art. 5.
(60) ‘Ende die coepman sal gelden van sinen guede dat hem blijft boven vracht ende ongelt als dat guet gelt tusschen den mynsten ende meysten binnen xiiij dagen.’: Kampen BvR, art.  (unnumbered article).
(61) ‘Cels qi serrount gete hors, deyvent estre aprisagez a foer de ceux, qi serrount venuz a sauvete et serrount venduz et partis livere a livere entre les marchaunz.’: Oléron, art. 8.
(62) ‘And the goods that will be cast, shall be valued by the price of those which are saved and divided, pound by pound, amongst the merchants.’ Vonnesse/Codex Brugensis (Twiss), art. 8. The text in the Wisby Sea Law (art. 20) is closest to this.
(63) ‘And the goods that were cast there, shall be valued on the market, pound by pound, and divided amongst the merchants upon the goods that shall have been saved.’ Vonnesse (Ms. Bruges/Cologne), art. 8.
(64) ‘And it shall be valued pound by pound and divided amongst the merchants, upon the goods that were saved.’ Vonnesse, art. 8, also in Gotland SL, art. 22.
(66) Forte, ‘“Kenning be kenning”’, 60.
(67) The poor translations are found in most of the manuscripts of the Waterrecht and in the printed edition of 1505. In the later editions (Wisby Sea Law) the comprehensibility of the text was improved, a sign that these were edited by more knowledgeable people.
(68) ‘Alst an den market ghelt’ (‘as it is worth at the market’): Ordinancie, art. 4, also in Gotland SL, art. 41 and Wisby SL, art. 38.
(69) Gotland SLLandwehr, Haverei, 57,Waterrecht
(70) Landwehr, Haverei, 25.
(71) Ordinancie, art. 4; Hamburg 1301/6, art. 22 (not in Hamburg 1497); Lübeck SL, art. 24; Riga I, art. 7; Kampen BvR, art. 5 (not in Kampen GB); Lübeck TL (1257), art. 94; Lübeck TL (1263), art. 99; Lübeck TL, art. 89; Wisby TL, art. 10; Novgorodll, art. 38 (not in Novgorod III).
(72) Oléron, art. 8; for the text, see above.
(73) Landwehr, Haverei, 26.
(74) Bergen, art. 8; Jónsbóh, art. 10.
(75) Landwehr, Haverei, 25–6.
(77) Riga II, art. 4.
(78) Riga II, art. 18.
(79) Bergen, art. 8; Jónsbóh, art. 10; Grágás, art. 166; Bjärhöarrätten, art. 20.1.
(80) Landwehr, Haverei, 43. For the earlier developments in Scandinavian sea law, see Landwehr, Haverei, 43–4.
(81) Leis Willelme, art. 37.
(82) OléronWard, World of the Medieval Shipmaster, 96.
(83) Bute Ms, art. 21.
(84) ‘ibi dabitur a magistro navis cum mercatoribus marcha marche coequalis’. HUB I, no. 538.
(85) Landwehr, Haverei, 48.
(86) ‘So war ein scip dor not willen gut utwerpet, dat scip sal mede gelden marc markelic’ Riga I, art. 7 and Hamburg 1301/6, art. 22, my underlining.
(87) Landwehr, Havern, 41. The exclusion of well-known rules from the written laws in the Middle Ages is also discussed by Ebel, Lübisches Recht, 12; Gilissen, La Coutume, 65.
(88) Riga I, art. 7; Riga II, art. 4.
(89) The Flemish translation simply states that the skipper had to contribute with either ship or freightage: Vonnesse, art. 8. The Scottish translation is very unclear, but the skipper's choice has clearly disappeared there too. NLS, Bute Ms, art. 21. See Chapter 4.
(90) OrdinancieOrdinancieVonnesse van DammeendeLandwehr, Haverei, 55.
(91) This applied when freight was only paid for saved goods, which was, in general, the case.
(92) Landwehr, Haverei, 52.
(94) In the Gotland Sea Law the choice of the merchants which had been laid down in the Ordinancie was left out too, but in the Wisby Sea Law it was not. Gotland SL, art. 41; Wisby SL, art. 38.
(95) Kampen BvR, art. 4.
(96) Kampen BvR, art. .
(97) In some manuscripts, the article was divided into two articles (3 and 4), in one Danzig manuscript it was omitted (perhaps because of the described mistake?) and in others it was added at the end.
(98) Landwehr, Haverei, 31. The manuscript with the mistake is that on which Verwer based his edition of the Ordinancie of 1711: a manuscript of the sixteenth century from Enkhuizen. Verwer, Nederhnts See-Rechten. Verwer thought this version right and calls the other versions which he found in most of the prints ‘onverstanelijk verwardt en bedorven; sprekende gantsch misselijk en sonder eenig slot, van Vercoopen’ (‘incomprehensibly muddled and contaminated: speaking very meanly and without any coherence of “Vercoopen”’). The reason for this harshjudgement is that the changed rule was in use at the time of writing, as he wrote: ‘gelijk 't ook wesentlijk in vol gebruik is’. Verwer, Nederhnts See-Rechten, 50. None of the other manuscripts nor any of the prints known to me have this mistake.
(99) Kampen BvR, art. 4.
(101) ‘Dat schep unde dat gut, dat dar worpen is, seal men rekenen, wat dat wert is, des seal dre marc gan vor en punt.’ Riga II, art. 4; a similar rule can be found in art. 18.
(102) Bjärhöarätten, 20.2; Wisby TL, art. 3.
(103) ‘Wert mast ofte touwe ghecorven, de schiphere hevet den schaden aleine, dar ne werde wilkore ane dan; unde den wilkore scolen tughen dhe in dheme schepe do weren.’ Hamburg 1301/6, art. 22; Lübeck SL, art. 24; Riga I, art. 7.
(104) Landwehr, Havern, 45.
(105) Riga II, art. 4.
(106) Riga only used the Hamburg Town Law to create its own laws.
(107) Lübeck TL (1257), art. 94. The article is missing in the manuscript from Danzig of 1263.
(108) ‘Verlust men enen mast oder en segel inder segelinge van ungelucke, des ne dorven nicht gelden de in deme schepe sint. Wert aver he dor not gehowen unde ut geworpen, so scha dat schip unde de lude de in deme schepe sint gelden na marktal, unde de schiphere schal sin del gelden.’ Lübeck TL, art. 153.
(109) Landwehr, Haverei, 47.
(110) Kampen BvR, art. 5; Kampen GB, art. 14.
(111) ‘Dit recht heb wi laten scrijven van sciepen de comen mit ghasten oft mit borgheren tot onser havene ende soe wanner sie comen tandem havenen in andern lande, dar nemen si dat recht aise daer zedelic ende woentlic is.’
(112) Landwehr, ‘Prinzipien der Risikotragimg’, 595.
(113) Rôles d'OlévnOrdinancieJahnke, ‘Hansisches Recht’, 47.
(114) Landwehr, Haverei, 16
(115) ‘Colliding skipper’ is defined here as the skipper sailing the vessel that collided into another ship. When a ship had stricken sail, anchored or sailed closer to land or a cliff, it was not very manoeuvrable. Other ships were therefore expected to swerve by such a vessel. When a collision occurred, the skipper of the more manoeuvrable ship was seen as the guilty party. Oléron, art. 15; Vonnesse, art. 15 or art. 10 in some manuscripts, also in Gotland SL, arts 29–30 and Wisby SL, art. 27; HUB I, no. 538; Hamburg 1497, art. 48.
(116) Hamburg 1301/6, art. 21; Riga I, art. 6; Hamburg 1497, art. 47; Riga II, art. 3.
(117) Lübeck SL, art. 23, similar regulation in Lübeck TL, art. 132, also in Gotland SL, art. 65 and Wisby SL, art. 71.
(118) Wisby SL, art. 27.
(119) ‘Bi oere pene van lyve ende van guede’ (‘On their pain of life and goods’): Kampen BvR, art. 3, similar wording in Kampen GB, art. 23.
(120) ‘Et est resoun pur quei cest jugement est fet si est, qe une viele nef se mist volunters en la voie a une meilure, si ele touz ses demages pur quider aver lautre nef; mes quant ele siet, qele doit partir la moite, ele se voit volunters de la voie.’ Oléron, art. 15. This part was made into a separate article in some versions of the Waterrecht and the Gotland Sea Law, making little sense on its own.
(121) Behrend, ‘Ungefährwerk’, 60, concluded that this part of the article is unhistorical and was added to legitimise the change in regulation. Ward takes the comment at face value and calls it, somewhat anachronistically, ‘a trailblazer for insurance seams’. Ward, World of the Medieval Shipmaster, 169.
(122) OléronVonnesseGotland SLWisby SLJahnke and Graßmann, eds, Seerecht im Hanseraum, 78, n. 85.
(123) Oléron, art. 16; Vonnesse, art. 16 or art. 11 in some manuscripts, also in Gotland SL, art. 31 and Wisby SL, art. 28; Ordinancie, art. 14, also in Gotland SL, art. 51 and Wisby SL, art. 50.
(124) Riga I, art. 2; Riga II, art. 2.
(125) ‘Item een scip […] die enen anderen anseylet sijns ondancs, dat scolde den schaden half ghelden’. Ordinancie, art. 12, also in Gotland SL, art. 49 and Wisby SL, art. 48.
(126) Oléron, art. 15.
(127) ‘Item dat gevalt dattet eene schip dat ander aenseylet met ongevalle, dattet eene schip mitten goeden blijft verlooren, soo sal men werderen dat guedt in beyde schepen te gheldene, eer eenich schip verloren was; dan soo sal den prijs van beyden gueden, toe samen gesommeert, betalen dat verlooren guedt, pond pondes ghelijcke, marc marckes ghelijcke.’ Ordinancie, art. 2, also in Wisby SL, art. 68 (not in Gotland SL).
(128) ‘Voort lickerwijs sal men prysen die weerde van beyde schepen, alsoo eer die schade geschiede; soo sal de prijs van beyden schepen ghesommet te gader werden, betalende dat verlooren schip pond ponds ghelijc, marc marckes lijcke.’ Ordinancie, art. 2.
(129) ‘Were aver de schade groter, den schip unde ghuet lede dat under blift, wen dat schip myd zyner tobehoringe werd is, dat dar bovene blift, alze id denne is dar id den schaden deyt: dar en darf de schiphere unde zyn ghud nyne noet vorder umme lyden; vnde ok en darf des kopmannes ghud, dat in deme schepe is dat den schaden daen heft, des schaden nicht mede ghelden.’ Hamburg 1301/6 (additions), art. 33, also in Hamburg 1497, art. 48.
(130) This article concerned deliberate collisions which required reimbursement for the whole damage. The possibility of swearing an oath to establish innocence was noted only at the end of the article.