MARITIME LAW

MARITIME LAW
The Talmud discusses many laws concerning shipping, and sea and river journeys – such as the sale of ships, instances of shipwreck salvage and rescue, rules of passage at sea, lading and charter agreements, and also various details of the laws of the Sabbath and ritual purity applicable to ships. Such laws do not, however, serve to create a distinct branch of maritime law proper, since they are interwoven into the wider principles of the laws of contract and damages (contrary to the view expressed by J. Dauvillier, in Revue Internationale des Droits de l'Antiquité, 6 (1959), 33–63). Although in this field special shipping customs, if any, are followed, this is no more than an application of the general principle of contract law relating to local or trade customs (Rashba, Resp., vol. 2, no. 268). With regard to the sale of ships, as with other sales, reference is made to accessories which are customarily sold with the ship and others which are considered as being independent and must therefore be purchased separately (BB 5:1). It is also stated that it was the practice of shipowners to receive not only the hire for the ship but also payment for its loss if shipwrecked (BM 70a). On arrangements for sea traffic it is stated: "Where two boats sailing on a river meet; if both attempt to pass simultaneously, they will sink; whereas if one makes way for the other, both can pass (without mishap). Likewise if two camels met each other while on the ascent of Beth-Horon (which is a narrow pass; see Josh. 10:10 and 11)… if one is laden and the other unladen, the latter should give way to the former; if one is nearer (to its destination) than the other, the former should give way to the latter. If both are equally near or far, make a compromise between them, and the one (to go through) must compensate the other" (Tosef. BK 2:10; Sanh. 32b). If a person hires a ship for carriage of cargo and it sinks in mid-journey, he must pay for half the journey; if, however, he hires a specific ship for shipping a specific cargo, he loses the hire if he has already paid for it but is not obliged to pay if he has not already done so (BM 79b and Tos.). In a case where a man hired boatmen to deliver goods, stipulating that they guarantee against any accident (see ones ) occurring on the way, and the river dried up during the journey, it was held that the boatmen had not guaranteed against this possibility since such an accident was not foreseeable (Git. 73a). Various halakhot were decided with regard to shipwrecks. Thus when a boat is in danger of sinking and part of the cargo is thrown overboard to lighten the vessel, the resulting loss is not apportioned equally amongst the cargo owners, nor is it calculated according to the value of the goods of each owner, but the loss is apportioned according to the weight of the cargo of each owner – provided that this does not conflict with local maritime customs (BK 116b). In one instance a donkey being transported threatened to sink the boat and was thrown   overboard, whereupon it was decided that no compensation was payable to its owner, since the deed was justified on the grounds of self-defense, the donkey being considered as pursuing with intent to kill (BK 117b). An interesting halakhah concerning maritime insurance is related: "The sailors can stipulate that whoever loses a ship shall get another one, but if the boat was lost due to his own negligence or if he sailed to a place to which boats would not normally sail, he would not be provided with another boat." The same rule applies also to carriers on land (Tosef. BM 11:26; BK 116b). In the post-talmudic period many responsa dealt with trade customs (see e.g., Rashba, Resp., vol. 2, no. 268), some of them marine customs. solomon b. abraham adret (Rashba), who lived in Barcelona, where the well-known collection of marine customs Consulat de Mar was compiled, records the custom of depositing goods with a merchant traveling by sea for the latter to trade therein at the risk of the depositor – leaving the sailor exempt from liability for accident (his resp. vol. 2, no. 325; vol. 1, no. 930 and cf. no. 924). Also mentioned is the custom of paying the full wages, even if the journey for which the employee was hired was not completed due to accident overtaking the employer (Rashba, Resp., vol. 6, no. 224). In the State of Israel maritime law is based on Israeli legislation, conforming with the law of the maritime nations in those matters and also with Ottoman-French laws and English law. -BIBLIOGRAPHY: Krauss, Tal Arch, 2 (1911), 338–49; Herzog, Instit, 2 (1939), 252–4, 268–70. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:452, 560, 752; idem, Jewish Law (1994), 2:552, 681, 927. (Shalom Albeck)

Encyclopedia Judaica. 1971.

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