Search results for "shipmaster"
showing 6 items of 6 documents
Early modern maritime insurance between mercantile customs and ius commune
2020
Le droit coutumier a qualifié la responsabilité du capitaine de navire de culpabilité. Les juristes, notamment les tribunaux, se sont concentrés sur des catégories spécifiques (contractuelles, délictuelles ou pénales). Le passage de l’un à l’autre implique une différence très significative en matière de qualification du comportement, donc des preuves requises. Cela a eu des conséquences importantes sur l’étendue de la responsabilité du capitaine du navire, donc sur la position des assurés.
The barratry of the shipmaster in early modern law: polysemy and mos Italicus
2019
Summary ‘Barratry’ is a polysemic term: it means deceit, bribe, simony, and fraud of the shipmaster. This article seeks to trace the origins of the word and to explore its different meanings, focusing especially on the influence that older meanings had on the development of more recent ones. This operation is of particular importance to understand the meaning of barratry that would appear for last – that of fraud of the shipmaster. By the time civil lawyers started dealing with maritime barratry, they were already well familiar with the other meanings of the term. This probably favoured the adaptation process, but it also left a deep mark on its outcome: the weight of those other meanings o…
The Barratry of the Shipmaster in Early Modern Law: The Approach of Italian and English Law Courts
2019
Summary For a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think…
Il dovere di soccorso in mare e il diritto di obbedire al diritto (internazionale) del comandante della nave privata
2019
Shipmasters are commonly considered the addressees of an international legal duty to rescue at sea. This article describes the evolution of international law in this field, from the first maritime conventions of the 1910's to the IMO Safety Committee's resolutions of the 2010's. It then argues that behind the duty to rescue there is a hidden right of the shipmaster. This right has a moral pedigree and is functional to the full compliance of the duty itself. It can be enforced in the national legal order against any State (or private entity) that tries to obstruct the shipmaster's activities of assistance or to penalize her or him for the assistance given. National judges enforce this right …
The liability of the shipmaster in early modern law: comparative (and practice-oriented) remarks
2017
This article deals with the liability of the shipmaster in early modern law in civil and common law, focusing on the approach of Italian and (to a lesser extent) also Iberian courts on the one hand, and on that of common law courts (mostly the King's Bench) on the other. The practice-oriented approach is deliberate: the article seeks to understand what the actual position of the carrier was, not how did learned jurists classify it. Once distinguished practice from dogmatic elaborations (especially for the civil law), this work then proceeds to compare the rules applicable in the two different legal systems. Common law courts imposed strict liability on the shipmaster, for it qualified the c…
DISTRIBUTING RESPONSIBILITY BETWEEN SHIPMASTERS AND THE DIFFERENT STATES INVOLVED IN SAR DISASTERS
2019
The duty to save life at sea can today be considered a rule of general inter- national law. However, the concept of “duty to save life at sea” hides a complex web of international regulations, scattered across several treaties providing obli- gations both for shipmasters and a plurality of States (namely flag States, coastal States, States receiving distress signals, etc.). This paper addresses the question of the respective responsibility of the different subjects involved in search and res- cue activities. After a short introduction to the evolution of international law in this field, the paper investigates the relationship between shipmasters and States. This first part of the study show…