'Of Laws of Ships and Shipmen': Medieval Maritime Law and its Practice in Urban Northern Europe 9780748668076

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‘OF LAWS OF SHIPS AND SHIPMEN’

SCOTTISH HISTORICAL REVIEW MONOGRAPHS SERIES No. 20

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Scottish Historical Review Monographs are major works of scholarly research covering all aspects of Scottish history. They are selected and sponsored by the Scottish Historical Review Trust Editorial Board. The trustees of the SHR Trust are: Mr Alex Woolf (convenor), Dr David Caldwell, Dr Alison Cathcart (secretary), Dr David Ditchburn, Dr James Fraser, Dr Karly Kehoe, Dr Catriona M. M. Macdonald, Dr Martin MacGregor, Dr Andrew Mackillop, Dr E. V. Macleod, Dr Steven Reid and Mrs Patricia Whatley. CURRENT AND FORTHCOMING VOLUMES 1 Helen M. Dingwall 2 Ewen A. Cameron 3 Richard Anthony 4 R. Andrew McDonald 5 John R. McIntosh 6 Graeme Morton 7 Catriona M. M. Macdonald 8 James L. MacLeod 9 John Finlay 10 William Kenefick 11 J. J. Smyth 12 Roland Tanner 13 Ginny Gardner 14 Allan W. MacColl 15 Andrew G. Newby 16 Karen J. Cullen 17 Annemarie Hughes 18 Annie Tindley 19 Tanja Bueltmann 20 Edda Frankot

Physicians, Surgeons and Apothecaries: Medicine in Seventeenth-Century Edinburgh Land for the People? The British Government and the Scottish Highlands, c. 1880–1923 Herds and Hinds: Farm Labour in Lowland Scotland, 1900–1939 The Kingdom of the Isles: Scotland’s Western Seaboard, c. 1100–1336 Church and Theology in Enlightenment Scotland: The Evangelical Party, 1740–1800 Unionist-Nationalism: Governing Urban Scotland, 1830–1860 The Radical Thread: Political Change in Scotland. Paisley Politics, 1885–1924 The Second Disruption: The Free Church in Victorian Scotland and the Origins of the Free Presbyterian Church Men of Law in Pre-Reformation Scotland ‘Rebellious and Contrary’: The Glasgow Dockers, c. 1853–1932 Labour in Glasgow, 1896–1936, Socialism, Suffrage, Sectarianism The Late Medieval Scottish Parliament: Politics and the Three Estates, 1424–1488 ‘Shaken Together in the Bag of Affliction’: Scottish Exiles in the Netherlands, 1660–1690 Land, Faith and the Crofting Community: Christianity and Social Criticism in the Highlands of Scotland, 1843–1893 Ireland, Radicalism and the Scottish Highlands, c. 1870–1912 Famine in Scotland: The ‘Ill Years’ of the 1690s Gender and Political Identities in Scotland, 1919–1939 The Sutherland Estate, 1850–1920: Aristocratic Decline, Estate Management and Land Reform Scottish Ethnicity and the Making of New Zealand Society, 1850–1930 ‘Of Laws of Ships and Shipmen’: Medieval Maritime Law and its Practice in Urban Northern Europe

www.euppublishing.com/series/shrm

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‘OF LAWS OF SHIPS AND SHIPMEN’ Medieval Maritime Law and its Practice in Urban Northern Europe

EDDA FRANKOT

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© Edda Frankot, 2012 Edinburgh University Press Ltd 22 George Square, Edinburgh EH8 9LF www.euppublishing.com Typeset in 10/12 ITC New Baskerville by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY A CIP Record for this book is available from the British Library ISBN 978 0 7486 4624 1 (hardback) ISBN 978 0 7486 6807 6 (webready PDF) ISBN 978 0 7486 6808 3 (epub) ISBN 978 0 7486 6809 0 (Amazon ebook) The right of Edda Frankot to be identified as author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

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Contents

1 2 3 4 5 6 7

Tables and Maps Abbreviations Acknowledgements Preface

vi vii xi xiii

Introduction A History of Maritime Law in Northern Europe Shipwreck, Jettison and Ship Collision in Maritime Law The Five Towns Introduced Written Law: Urban Collections of Sea Law Written Law: Local Developments in Lawmaking Legal Practice: the Administration of Maritime Justice Legal Practice: Maritime Proceedings at the Urban Courts Final Conclusions

1 6 27 53 81 110 144 166 199

Bibliography Index

202 216

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Tables and Maps Tables 1.1 The articles in selected manuscripts of the Ordinancie 4.1 The Scottish translations of the Rôles d’Oléron 4.2 Maritime regulations in the different manuscripts of the Lübeck Town Law 5.1 The articles of the Hamburg, Lübeck and Riga Sea Laws compared

16 83 94 130

Maps I.1 3.1 3.2 3.3 3.4 3.5

The North Sea and Baltic area The Kingdom of Scotland The Netherlands around 1300 Denmark and Schleswig-Holstein Medieval Livonia (Alt-Livland) The Prussian State

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4 55 59 63 67 71

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Abbreviations General ACA ACR Adv. Libr. AHL APG APS ASA BRW Cod. Ord. Lub. Cod. Ord. Rev. GAK HGbll HR 1 HR 2 HR 3 HUB KB LECUB LQB LRU LUB NK NLS NStB OA RA

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Aberdeen City Archive Aberdeen Council Register Advocates Library (Edinburgh, now part of the collection of the NLS) Archiv der Hansestadt Lübeck Archiwum Pan´stwowe Gdan´sku The Acts of the Parliaments of Scotland, eds T. Thomson and C. Innes, 12 volumes (Edinburgh 1814–75) Altes Senatsarchiv (Lübeck) Bijdragen tot Regtsgeleerdheid en Wetgeving Codex ordaliorum Lubecensium Codex ordaliorum Revaliensis Gemeentearchief Kampen Hansische Geschichtsblätter Hanserecesse 1256–1430 (Leipzig 1870–97) Hanserecesse 1431–1476, ed. Goswin Freiherr von der Ropp (Leipzig 1876–90) Hanserecesse 1477–1530, eds Dietrich Schäfer and Friedrich Techen (Leipzig and Munich 1881–1913) Hansisches Urkundenbuch, eds Konstantin Hohlbaum et al., 11 volumes (Halle etc. 1876–1939) Koninklijke Bibliotheek (Bibliothèque Royale) Brussels Liv-, Esth- und Curländisches Urkundenbuch, ed. Friedrich Georg von Bunge, 15 volumes (Reval 1853–1914) Leges Quatuor Burgorum (Scotland); APS, i, 333–56 Lübecker Ratsurteile, ed. Wilhelm Ebel, 4 volumes (Göttingen 1955–67) Lübeckisches Urkundenbuch, 11 volumes (Lübeck 1843–1905) Wouter Nijhoff and M. E. Kronenberg, Nederlandsche bibliographie van 1500 tot 1540 (The Hague 1923–71) National Library of Scotland Niederstadtbuch (Lübeck) Oud Archief (Kampen) Rechterlijk Archief (Kampen)

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viii RGP RGP 35

RGP 70

RPS SHR TLA TM ZRG GA ZVLGA

‘Of Laws of Ships and Shipmen’ Rijksgeschiedkundige Publicatiën Bronnen tot de geschiedenis van den Oostzeehandel, vol. I, 1122–1499 eerste stuk, ed. H. A. Poelman (The Hague 1917) Bronnen tot de geschiedenis van den handel met Frankrijk, Eerste deel 752–1585, eds Z. W. Sneller and W. S. Unger (The Hague 1930) The Records of the Parliaments of Scotland, eds K. M. Brown et al. (St Andrews 2007–9) Scottish Historical Review Tallinna Linnaarhiiv Tallinna Magistraat Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung Zeitschrift des Vereins für Lübeckische Geschichte und Altertumskunde

Sea laws Bergen

Bjarkeyjar réttr Bjärköarätten Danzig Dig.

Gotland SL Grágás Hamburg 1301/6

Hamburg 1497 HR 1447 HUB I, no. 538

Jónsbók Kampen BvR

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Bergen Town Law; Stadtrecht des Königs Magnus Hakonarson für Bergen. Brüchstücke des Birkinselrechts und Seefahrerrecht der Jónsbók, ed. Rudolf Meissner (Weimar 1950) Stadtrecht des Königs Magnus Hakonarson, ed. Meissner Helsinge-Lagen, Kristnu-Balken af Smålands-Lagen, och Bjärköarätten, ed. D. C. J. Schlyter (Lund 1844) Danzig judgements; APG, 300, R/Fq, 1, Waterrecht Digestum; Corpus Iuris Civilis. Text und Übersetzung, vol. III, Dig. 11–20, eds Okko Behrends et al. (Heidelberg 1999) Gotland Sea Law; Dat Gotlansche Waterrecht (Osnabrück 1967, facsimile of Copenhagen 1505) Isländisches Recht. Die Graugans, ed. Andreas Heusler (Weimar 1937) Hamburg Ship Law of 1301/6; Die ältesten Stadt-, Schiffund Landrechte Hamburgs, ed. J. M. Lappenberg (Aalen 1966, reprint of Hamburg 1845) Hamburg Ship Law of 1497; Die ältesten Stadt-, Schiff- und Landrechte Hamburgs, ed. Lappenberg Hanserecess of 1447; HR 2, III, no. 288 1259 letter from Hamburg to Lübeck; Hansisches Urkundenbuch I, ed. Konstantin Hohlbaum (Halle 1876), no. 538 Stadtrecht des Königs Magnus Hakonarson, ed. Meissner Kampen Dat Boeck van Rechte; GAK, OA, no. 5, Dat Boeck van Rechte dier Stat van Kampen

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Abbreviations Kampen GB Leis Willelme Lübeck SL Lübeck TL

Lübeck TL (1257)

Lübeck TL (1263) Lübeck TL (1282)

Novgorod II

Novgorod III Oléron

Ordinancie

Ordinancie (Privilegieboek) Riga I

Riga II Swedish TL

Vonnesse

Vonnesse (Codex Brugensis)

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ix

Kampen Dat Gulden Boeck; GAK, OA, no. 6, Dat Gulden Boeck Die Gesetze der Angelsachsen, vol. I, Text und Übersetzung, ed. F. Liebermann (Aalen 1960, reprint of 1903–16) Lübeck Sea Law; AHL, Hs. 753, Copiarius Lübeck Town Law; Latin: Das alte Lübische Recht, ed. Johann Friedrich Hach (Lübeck 1839); Low German: Norddeutsche Stadtrechte, vol. II, Das mittelniederdeutsche Stadtrecht von Lübeck nach seinen ältesten Formen, ed. Gustav Korlén (Lund and Copenhagen 1951) Lübeck Town Law (Reval manuscript from 1257 (R1)); Die Quellen des Revaler Stadtrechts, vol. I, ed. Friedrich Georg von Bunge (Reval 1844) Lübeck Town Law (Danzig manuscript from 1263 (H)); Das alte Lübische Recht, ed. Hach Lübeck Town Law (Reval manuscript from 1282 (R2)); Lübecki õiguse Tallinnaa Koodeks. 1282. Der Revaler Kodex des lübischen Rechts, ed. Tiina Kala (Tallinn 1998) Second Novgorod Skra; Die Nowgoroder Schra in sieben Fassungen vom XIII. bis XVII. Jahrhundert, ed. W. Schlüter (Dorpat 1911) Third Novgorod Skra; Die Nowgoroder Schra, ed. Schlüter Rôles d’Oléron (Liber Horn); Karl-Friedrich Krieger, Ursprung und Wurzeln der Rôles d’Oléron (Cologne and Vienna 1970) Ordinancie van Amsterdam or Staveren (Staveren manuscript); A. Telting, Die alt-niederländischen Seerechte (The Hague 1907) Ordinancie van Amsterdam or Staveren (Privilegieboek Amsterdam); Telting, Die alt-niederländischen Seerechte Hamburg/Riga Town Law; Die Quellen des rigischen Stadtrechts bis zum Jahre 1673, ed. J. G. L. Napiersky (Riga 1876) Revised Riga Town Law; Die Quellen des rigischen Stadtrechts ed. Napiersky General Swedish Town Law of Magnus Eriksson; Collection de Lois Maritimes antérieurs au XVIIIe siècle, vol. III, ed. J. M. Pardessus (Paris 1834) Vonnesse van Damme; C. A. den Tex, ‘Oud-Nederlandsch Zeeregt. Kritische Bewerking van den Tekst der Vlaamsche Zeeregten’, BRW 5 (1830), 33–62 Vonnesse van Damme (Bruges manuscript); Black Book of the Admiralty, vol. IV, ed. Sir Travers Twiss (London 1876)

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Vonnesse (Kampen) Vonnesse van Damme (Kampen Waterrecht manuscript); GAK, OA, no. 17, Dat Schiprecht Vonnesse (MS Vonnesse van Damme (Bruges Waterrecht manuscript, Bruges/Cologne) now kept in Cologne); Telting, Die alt-niederländischen Seerechte Wisby SL Wisby Sea Law (Amsterdam 1588); Wisby Stadslag och Sjörätt, ed. D. C. J. Schlyter (Lund 1853) Wisby TL Wisby Town Law; Wisby Stadslag och Sjörätt, ed. Schlyter

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Acknowledgements Like so many before it, this book has been a long time in coming. In an age when the completion of a PhD usually means the start of a long succession of research assistantships in the faint hope of eventually gaining a ‘proper’ academic position, I too was distracted from finalising this text by digitisation and other useful but time-consuming projects. These have also resulted in publications and feelings of accomplishment, but none that can match the sense of achievement of finishing this, my very own project, created, conducted and completed by myself alone, without outside interference or management. However, this book would never have seen the light of day without the guidance and support of many who I am now finally able to thank in the traditional way. This book is based on the PhD thesis which I completed at the University of Aberdeen in 2004. I am very grateful for the funding I received from the Faculties of Arts and Social Sciences at that institution in the first three years of my studies and from the International Max Planck Research School in Frankfurt am Main for the remaining eighteen months, as well as for the support and stimulation received from staff and students in both institutions, especially from my PhD supervisors Professor Angelo Forte and Dr Frederik Pedersen and from Professor Albrecht Cordes in Frankfurt. I would also like to thank the Northern European Historical Research Network, and especially Professor Allan Macinnes, for allowing me to spend two six-month periods abroad in Kiel and Groningen, where I was looked after by Professors Thomas Riis and Dick E. H. de Boer respectively. The latter has also since then provided me with muchappreciated guidance and advice. Thanks are also due to Professor Götz Landwehr from Hamburg, who kindly answered some of my questions on our mutual field of interest. I am grateful for the help I received from staff in the archives of four of the five towns researched in this study: the City Archives in Aberdeen, the Gemeentearchief in Kampen, the Archiv der Hansestadt Lübeck and the Archiwum Pan´stwowe Gdan´sku, as well as from Juhan Kreem at the Tallinna Linnaarhiiv, who sent me microfilms of all the relevant material. Similarly appreciated assistance was provided at the National Library of Scotland, the British Library, the Cambridge University Library and the Lambeth Palace Library. I have also benefited from comments received from the external examiners of my PhD thesis, Mr David Sellar and Dr Carsten Jahnke, the latter of whom has since then kindly agreed to disagree with me on certain

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conclusions held within this book. I owe a great debt to my then internal examiner, Dr David Ditchburn, who has not only assisted in improving my writing significantly over the years by way of his meticulous editing skills, but who has also acted as a mentor in recent years, generously providing advice, pep talks, teaching opportunities and time, and editing research proposals and job applications. Since the completion of my PhD it has been my privilege to work on a number of projects which, though keeping me from finalising this text, have broadened my academic horizons, mainly into the early modern period (‘the dark side’ or ‘journalism’, as some have called it) and I have been able to benefit from the wisdom of Professors Aidan Clarke, Jane Ohlmeyer, Thomas Bartlett, John Morrill and Hector MacQueen, and Drs Hanno Brand and Micheál Ó Siochrú. I am also grateful to Professor Robert von Friedeburg and other colleagues in the History department of the Erasmus University in Rotterdam for providing me with a friendly and stimulating new academic home. I would like to express my gratitude to the board of the Scottish Historical Review for agreeing to include this book in their monograph series. The series editor, Dr Andrew Mackillop, deserves considerable thanks for his support and good-natured comments on this text. I would also like to thank John Watson and staff at Edinburgh University Press for guiding me swiftly through the publication process. Jennifer Johnston and Alison Sandison from the Geography department at Aberdeen University have quickly and professionally turned my amateur drawings into proper maps. Over the past years, my life has at times resembled that of the medieval merchants and skippers whose legal trials and tribulations I have described in these pages: always on the road but at home in many towns. Like those medieval men, I was able to establish and maintain relations in these places and always find a warm welcome in each of them. I would therefore like to express sincere thanks to all those people who have made me feel at home during my peregrinations in Scotland, Germany, Ireland and the Netherlands. These are and have been especially Jennifer McDonald, Irene Furneaux, David Worthington, Alison Cathcart, Steve Murdoch, Iain MacInnes, Anne Robertson, Karen Schleeh, Tanja Storn-Jaschkowitz, Annaleigh Margey, Elaine Murphy, Joke Niezen, Janneke Spanninga, Berry Lieftink, Natacha Nankman, Michiel Frankot and Heleen Meijer. I am particularly indebted to my parents, Herman and Marieke Frankot, who formed a steady base in the Netherlands during and just after my PhD and who have shown an admirable ability to maintain (or at least feign) enthusiasm about my ever-changing activities over the years. Finally, my husband, Barry Robertson, knows like no other what it is like to be a historian and a starting academic. His love, support and companionship over the past few years have been a great source of comfort and happiness to me. I feel very lucky that he has chosen to join me on my journeys.

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Preface The first north-western European sea law, the Rôles d’Oléron, compiled in French in the thirteenth century, regulated the relations between the various parties involved in the transportation of wine from the Atlantic coast of France to England, Flanders and Scotland.1 In the fourteenth century this law was translated into Scots (as well as into Flemish/Dutch) and would remain the only compilation of maritime customs available in late medieval Scotland. This translation, generally simply entitled ‘ship lawis’ (or ‘of lawis of shippis and shipmen’), thus takes a special place among the medieval Scottish laws as being the only ‘European’ set of rules, both with regard to its subject matter, international shipping, as to its providence. Scottish maritime law, then, cannot be studied in isolation, but must be analysed within a European context. This is further supported by the fact that maritime law was mainly relevant within the urban environment of Scottish coastal burghs where merchants and skippers came to seek justice when problems arose between them regarding the transportation of goods by sea. The Scottish ports, like those elsewhere, were inherently focused outwards and from their earliest times were exposed to external influences, for example those from Flemish merchants invited by King Malcolm III and Queen Margaret in the twelfth century or, indeed, from wine merchants from Bordeaux or La Rochelle.2 In this study the European context is provided by comparing Scotland (represented here by Aberdeen) not with France, England and Flanders, but with towns in the Netherlands, northern Germany, Poland and Estonia. The reasons for this are twofold. First, when I started my research in Aberdeen in 1999, the idea that that city was northern European, being geographically closer to Norway than to London, was popular both at the university and at the city council and archives. One of the objectives of my study therefore became to challenge whether Aberdeen was indeed northern European when studied in the context of maritime law. As a result, this book seeks to determine which aspects of Scottish maritime law and its practice were unique in northern Europe and which developments were 1

2

Article 13 of this text specifically names Scotland as one of the destinations when regulating that local pilotage charges are to be paid by the merchants: ‘Et ceux d’Escoce puis qe lem passe Gernemue [And those of Scotland after passing Yarmouth]’ (Oléron, art. 13). Evidence of direct commercial contacts between Scotland and Gascony in the fourteenth and fifteenth centuries is meagre (Ditchburn, Scotland and Europe, 154), but the sea laws suggest that direct contacts must already have existed in the thirteenth century.

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shared with other countries. Second, the study aims to establish whether a common maritime law existed in northern Europe. As such, a comparison with France, England and Flanders, which are known to have used the Rôles d’Oléron as well, would not be useful as this may lead to the (incorrect as will become clear in the following) conclusion that a common law did exist. A comparison with regions that are known to have used other laws, such as northern Germany, is more productive and leads to a more representative conclusion. This book will contribute to the growing historiography on Scotland’s legal and urban past, which in recent years has produced some important new insights, for example with regard to the role of parliament and the central courts.3 This study will further enhance those insights, focusing especially on the functioning of the burgh courts within the kingdom’s legal framework. The book’s comparative approach also allows general urban and legal trends in Scotland to be placed within a European context. Never before has a Scottish burgh and urban legal practice been compared in such detail with other European towns and experiences. As such this study will add significantly to the understanding of Scottish history within a northern European context and fits in well with recent trends in viewing late medieval Scotland increasingly as a European kingdom.4

3

4

Mark Godfrey’s recent book Civil Justice in Renaissance Scotland is important in this respect, as are the various works that have already come forth from the Scottish Parliament Project, such as Alan R. MacDonald’s The Burghs and Parliament in Scotland. Of particular note in this regard has been the work of David Ditchburn on Scottish contacts with continental Europe.

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Introduction The topic of medieval maritime law has attracted increasing interest in the past three decades.1 It is, however, a theme that deserves much more attention in this age of Europeanisation and internationalisation. Because maritime law regulates sea shipping, which connects different ‘nations’, it is intrinsically international or supranational. Or is it? The existence of a common maritime law in northern Europe has regularly been presumed, but has never been proven. For example, it is often supposed that the Rôles d’Oléron were generally used throughout northern Europe or, at least, that they formed the basis for other northern European sea laws.2 The Wisby or Gotland Sea Laws are also sometimes named as having been used throughout the area.3 A few years ago Albrecht Cordes raised doubts as regards the existence of a medieval lex mercatoria as a fixed common law regulating trade throughout northern Europe.4 Such doubts extend to maritime law 1

2

3

4

Götz Landwehr has written several articles and monographs dealing with medieval maritime law, such as Haverei; ‘Prinzipien der Risikotragung’; ‘Seerecht im Ostseeraum’; Seerecht der Hanse. Other studies include: V. der Decken, Seearbeitsrecht im Hamburger Stadtrecht; Forte, ‘ “Kenning be kenning” ’; Frankot, ‘The practice of maritime law’; ‘Jurisdictions in the law of the sea’; ‘Maritime law and practice in late medieval Aberdeen’; ‘De “Ordinancie van Staveren” ’; ‘Diversity and unity’; Friedland, ‘Maritime law and piracy’; Goetze, ‘Der Anteil Lübecks’; Jahnke, ‘Hansisches Seerecht’; Jahnke and Graßmann, eds, Seerecht im Hanseraum; O’Sullivan, Ahndung von Rechtsbrüchen; Schweitzer, Schiffer und Schiffsmann; Ward, World of the Medieval Shipmaster. Somewhat older are Krieger, Ursprung und Wurzeln and Wolter, Schiffrechte der Hansestädte. Most recently: Jahnke, ‘Hansisches Seerecht’, 65; Ward, World of the Medieval Shipmaster, 20. Other examples include: Biederstedt, ‘Eine neue Handschrift des Seerechtes von Damme’, 26; Ditchburn, Scotland and Europe, 32; Forte, ‘ “Kenning be Kenning” ’, 57; Friedland, ‘Maritime law and piracy’, 33; Pohlmann, ‘Quellen des Handelsrechts’, 806, 808; Runyan, ‘The Rolls of Oleron’, 98, in which the Rôles d’Oléron have been described as the ‘canon for Europe’s northern seas’; Wagner, Handbuch des Seerechtes, 67. Wagner, Handbuch des Seerechtes, 68–9, according to which the Waterrecht, a compilation of Rôles d’Oléron and Ordinancie, was used in most maritime towns in northern Europe; similar assumptions are made by Stoob, Die Hanse, 205, who calls the Ordinancie ‘hamburgische Ordinancie’; Van den Auweele, ‘Zeerecht’, 224; Robinson, Fergus and Gordon, Introduction to European Legal History, 161, states that the Wisby Sea Law was widely used in Hanseatic towns such as Lübeck and Hamburg and other northern ports, superseding local customs. Cordes, ‘Mittelalterlichen Lex mercatoria’, revised version in English: ‘Lex mercatoria’. He writes (after note 25): ‘it was not before 1600 that the term “Lex mercatoria” was used in the sense of a system of substantive trade law – used in this sense by English merchants as an instrument against the disliked common law. Mentioning the Lex mercatoria’s

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too. The existence of several local sea laws (for example from Hamburg, Kampen, Lübeck, Riga and Wisby) rather suggests that a common maritime law did not exist in medieval northern Europe. Indeed, those authors who have undertaken detailed research into the matter have stressed the importance of certain written laws and the dissemination of copies of these laws throughout the area, rather than their adoption or usage in all sea ports bordering the North and Baltic Seas.5 A thorough examination of the spread of manuscripts of maritime law and their use in the urban courts of northern Europe has, however, never been undertaken. Most studies are either limited to an analysis of one or two compilations of laws or to a comparison of the contents of the written laws. Legal practice, in this context, has not yet been studied. Legal practice in the northern European urban courts, generally, has not been researched thoroughly. In groundbreaking studies from the 1950s and 1960s, Wilhelm Ebel published a large number of judgements from the Lübeck town court, analysing some in, for example, his Lübisches Kaufmannsrecht.6 Other sources have received attention in isolation, but generally, legal historians have focused on the written laws.7 Since, in my opinion, neither the written laws nor legal practice should be studied in isolation in an area such as maritime law, in which written laws came forth from practice and in which custom played such an important role, both the written laws and legal practice will be engaged with here. This study will be the first to analyse the spread and development of compilations of maritime regulations in northern Europe. It will also be the first to examine in detail the administration of maritime law at urban courts in this region. Such an examination has never before been conducted for the five towns (which will be introduced below) individually, nor for urban courts in general and comparatively. As such, this study is breaking new ground and provides important new insights into the workings of medieval sea shipping, the functioning of urban courts, the dissemination (or lack thereof) of legal principles in northern Europe and the (non-)existence of common legal traditions within the international maritime community. The main question my study seeks to answer is whether it is accurate to speak of a common law of the sea in medieval northern Europe. This question will be answered on three different levels: with regard to, first, the books of law; second, the contents of the written laws; and third, legal practice in the town courts. First of all, the history of the written laws such as the Rôles d’Oléron (and its translations into Flemish/Dutch and Scots),

5

6 7

respectable age in this context was quite evidently not meant to be a historical statement but an argument within a controversial legal discussion. Starting from here, the notion of the Lex mercatoria as a universal and uniformed system of law began a life of its own . . .’. For example, Kiesselbach, ‘Der Ursprung der Rôles d’Oléron’, 1; Krieger, Ursprung und Wurzeln, 1; Landwehr, ‘Seerecht’, coll. 1,601–2. Lübecker Ratsurteile, ed. Ebel; Ebel, Lübisches Kaufmannsrecht. For example, Simon, ‘Appellationen von Reval nach Lübeck’, 47–63.

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Introduction

3

the Ordinancie, the Hamburg and Lübeck Sea Laws and the Hanseatic statutes will be analysed. Then comparisons will be made of regulations from all of northern Europe regarding three important subjects dealt with in maritime law: shipwreck, jettison (and other forms of general average)8 and ship collision. Finally, in order to establish if there was a common practice as regards maritime law at the town courts of northern Europe, aspects of legal practice in five northern European towns (Aberdeen, Kampen, Lübeck, Reval (Tallinn) and Danzig (Gdan´sk)) will be analysed and compared. In four chapters, the urban collections of sea laws, local developments in lawmaking in some of these towns, the administration of maritime justice (including the use of the written laws in court) and the maritime proceedings at the urban courts in cases of shipwreck, jettison and ship collision will be dealt with. This section on legal practice will be preceded by a chapter introducing and comparing the five towns researched in this study. The subjects of shipwreck, jettison and ship collision have often featured in studies of medieval maritime law.9 This is because they are dealt with in most of the written laws and are therefore the most readily comparable issues. Shipwreck, jettison and ship collision are, moreover, subjects that would have been taken before the town courts on a more regular basis than, for example, the relationship between captain and crew, which would normally have been dealt with on board ship rather than in the courtroom. No evidence survives of the administration of justice aboard ship in the Middle Ages. This study is restricted to maritime law (which regulated private relations between all those aboard ship during the journeys); it does not include consideration of the law of wreck (which regulated who was entitled to objects washed ashore). The law of wreck belongs more properly within the area of Landrecht (land law). The five towns highlighted in this study were chosen not only because they were important centres of medieval trade, but also because of the survival of sources in their present-day archives. Aberdeen, though not the largest burgh in Scotland, was the second port after Edinburgh/Leith for most of the medieval period and is the only Scottish town to retain most of its sources from the fifteenth century.10 The town of Kampen also still possesses a rich collection of medieval sources and, though its current size no longer suggests it, was one of the largest Dutch shipping centres from 8 9

10

For a definition of general average, see Chapter 2. For example, Wolter, Schiffrechte der Hansestädte; Krieger, ‘Die rechtlichen Voraussetzungen des Seeverkehrs’, 1–20; Landwehr, Haverei; Goldschmidt, ‘Lex Rhodia und Agermanament’, 37–90, 321–95. As explained in the preface, England is not considered in this study. Occasional comparisons will be made with the situation in England using the recently published study by Robin Ward (World of the Medieval Shipmaster). Unfortunately, he has not specifically looked at urban courts, so a detailed comparison with the English situation is difficult to make. Earlier research was undertaken by Runyan, ‘The Rolls of Oleron’, 95–117 and Burwash, English Merchant Shipping, 171–2.

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‘Of Laws of Ships and Shipmen’

Map I.1: The North Sea and Baltic area.

the thirteenth to the fifteenth centuries. Many other Dutch towns, such as Dordrecht and Amsterdam, suffer from a scantness of medieval archives, which made them unsuitable candidates for this study. Kampen is also known to have drawn up maritime regulations in its town law, which makes it an interesting object of study. Lübeck, Danzig and Reval form three of the four main Baltic ports in the fifteenth century. The fourth, Riga, unfortunately suffers from a lack of medieval source material and was therefore excluded. This explains too the exclusion of the main German port on the North Sea coast, Hamburg, whose archives were largely destroyed by fire in the nineteenth century. Both Riga and Hamburg, as well as Lübeck and Danzig, developed their own maritime laws. Another element in choosing these towns was their political and legal diversity: Lübeck was the head of the Hanseatic League; it was politically autonomous and had its own town law. Reval was legally dependent on Lübeck and subservient to the Teutonic Order in international relations, but in domestic affairs it was largely autonomous. Danzig was also politically dependent on the Teutonic Order in the fourteenth century and was granted Kulm law, like most of the Order’s Prussian towns. In the fifteenth century Danzig became largely independent, and became a centre for maritime justice in the area. Lübeck, Reval and Danzig were all members of the Hanseatic League, as was Kampen when it suited the town commercially.

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Politically, Kampen was practically autonomous and it had its own town law. The only completely non-Hanseatic town was Aberdeen, which, in contrast to the other towns, formed an integral part of the kingdom of Scotland, where the burghal laws were largely uniform. The five towns were thus for a large part different in the way they were ruled, the power they exercised outside the town and the laws to which they were subject. Despite the focus on these five northern European towns with regard to legal practice, the overview of the written laws and their contents in the first two chapters includes consideration of the Scandinavian, English and French laws. The French laws are included because the Rôles d’Oléron were translated into Flemish/Dutch and Scots and disseminated over a large area of northern and north-western Europe. In the first chapter an overview is given of all the written sea laws that appeared in the Middle Ages in order to determine whether books of law were available throughout northern Europe at any time during this period. In the second chapter the regulations regarding shipwreck, jettison and ship collision from these law books are compared in order to establish whether common rules existed as regards these subjects throughout the area. In the third chapter the growth, government, law and trade of the selected towns are discussed and compared. Thus, developments in maritime law analysed in subsequent chapters can be understood in their political, economic and legal contexts. In Chapter four, the extant manuscripts of maritime law are described in order to determine which written laws were available to which towns and whether some communality existed in their legal collections. Chapter 5 deals with the written laws specific to each of the towns. As regards Lübeck, Danzig and Kampen, these laws are compared to those considered closest to them, in order to establish how unique these laws were. The Scottish translations of the Rôles d’Oléron are also analysed. These translations have not been previously examined and this analysis offers some important new insights, which are subsequently put to use in the final chapter. Chapter 6 deals with the administration of maritime justice. Besides discussing who administered justice in the towns and what evidence there is for the use of the written laws by the courts, some attention is also given to Lübeck as court of appeal (Oberhof ) for Reval and Danzig as a centre of maritime justice for Prussia and Poland. The final chapter is devoted to the judgements that were passed by the five courts in cases of shipwreck, jettison and ship collision. Through a comparison of the judgements as regards each of these subjects, and a comparison of these judgements to the written laws, it is possible to determine whether a common legal practice existed in medieval northern Europe and whether the written laws were used by the courts. In the final conclusions, a definitive answer is given to the main question of this study: was there a common law of the sea in medieval northern Europe?

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A History of Maritime Law in Northern Europe In early sea shipping the roles of skippers, shipowners and merchants usually overlapped. As a consequence, maritime law was simple, required only to regulate situations in which two ships collided.1 Gradually, however, more and more people became involved in the freighting of a single ship, and a differentiation eventually emerged between the roles of skippers, merchants, shipowners and crew members. Maritime law became correspondingly more complicated since remedies were required to reconcile points of conflict between the expanding cast of maritime society. Following regional developments in shipping technology, these regulations evolved differently in the various regions of Europe and, more particularly for the present purpose, of northern Europe.2 The oldest surviving regulations in northern Europe are from Scandinavia and date to the late twelfth century. Ships that were built specifically for the transportation of bulk cargo probably first appeared in the tenth century.3 Before that time, the early Viking Age ships were built to carry both warriors and small amounts of cargo. These ships were ideal for raiding the coastal areas of northern Europe, but when the Vikings consolidated their political position in the area and shifted their emphasis to trading instead of raiding, changes occurred in Scandinavian shipbuilding.4 On the one hand, longships were built to carry personnel swiftly across the waters for military and defensive purposes. On the other hand, broad ships appeared which were specialised in carrying cargo.5 The Scandinavian ships were clinker-built. They possessed a strong outside shell of overlapping cleft boards, which were riveted together, and were reinforced by a light interior frame. A different type of ship emerged 1

2 3 4

5

Landwehr, ‘Seerecht’, col. 1,596. The skipper was served by his personal servants and the relation between them was regulated by other laws. The risks of the sea voyage would be borne by the shipowner alone. Landwehr, ‘Seerecht’, col. 1,596. Crumlin-Pedersen, ‘Ships as indicators of trade’, 15. A similar development seems to have taken place in Slav shipbuilding. Crumlin-Pedersen, ‘Ships as indicators of trade’, 17. Ibid. 16–17. The sizes of such ships varied in accordance with their function: small coastal vessels could carry an average of five tons whereas the deep-sea cargo carriers were built to be freighted with fifty to sixty tons of goods.

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in the twelfth century. This was made up of a heavily framed bottom of flush-laid planks with clinker-built sides; it was called the cog. This ship soon came to dominate shipping in the North Sea and Baltic region, though clinker-built ships continued to be built alongside cogs throughout northern Europe.6 The emergence of the cog in the Baltic coincided with a steep rise in the carrying capacity of deep-sea vessels in northern Europe.7 Thanks to the urbanisation process in the Baltic region, trade grew significantly, as did the need for more and larger ships. Whereas the Viking ships had been built to a high level of craftsmanship (for example in their ornamental details), from the late twelfth century ships were produced more cheaply.8 Through technological developments ships could be built to carry larger amounts of cargo.9 Another steep rise in the carrying capacity of northern European vessels took place at the turn of the fifteenth century. Again, a demand existed for larger ships, this time because of a growth in the distribution of bulk goods, such as salt, grain, timber and fish. Whereas ships measuring up to 200 tons were built in the late fourteenth century, this size had doubled by the midfifteenth century and tripled at the end of that century.10 As before, developments in shipbuilding, such as the installation of more than one mast, accommodated this rise in carrying capacity. At the same time, a new type of vessel appeared in the northern seas in the late fourteenth century: the carvel-built ship. Carvels had been used in the Mediterranean for centuries and by the early fifteenth century they were developed to a high standard of naval architecture.11 Their manner of construction was much cheaper than that used in traditional northern shipbuilding. During the fifteenth century, carvel-built ships sailing the northern seas were usually still in the possession of southern European owners. They were mainly used in the salt trade from Portugal and the Bay of Bourgneuf to northern ports and only from the 1480s did a significant increase in northern ownership of the carvel occur.12 The growing carrying capacity of ships was an important factor in the changing organisation of sea shipping. In the Viking Age ships were generally owned by one person or by a small group of people, and goods 6

7 8 9 10 11

12

Hocker, ‘Technical and organizational development’, 22; Bill, ‘Schiffbau im frühen 13. Jahrhundert’, 87. Clinker-built ships could be constructed to similarly large sizes as cogs (if not larger). In the fifteenth century some very large clinker-built (war)ships were constructed in England (Jesus, built in 1416, measuring 1,000 tons and Grace Dieu, built in 1418, of 1,400 tons). Similarly, two sixteenth-century royal Danish flagships could carry about 800 tons: Engelen (1509) and Maria (1517). Bill, ‘Cargo vessels’, 104. Crumlin-Pedersen, ‘Ships as indicators of trade’, 18. Ibid. 19. Bill, ‘Cargo vessels’, 105. Hocker, ‘Technical and organizational development’, 23, 25. In their designs, the southern shipbuilders made use of ‘arithmetic relationships between primary hull dimensions and some fairly complex geometric calculations’. Hocker, ‘Technical and organizational development’, 21. Ibid. 21.

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were normally shipped by several merchants, including the skipper. For a single journey a joint venture was established by the skipper and the owners of the goods who all had the same duties and rights aboard the ship. The skipper generally owned part of the ship and steered it, whereas the others involved acted as crew. The skipper remained a primus inter pares; decisions were made by a council of all aboard the ship.13 In addition to the regulation of on-board relations, rules had to be devised regarding the loss of, or damages to, the goods and/or the ship. These rules became even more important when the size of ships increased around the late twelfth or early thirteenth century. Not only did the interests of the owner(s) of the ship and the owners of the goods start to diverge, but since merchants started to focus on handling trade, they increasingly sought to buy themselves out of their duties aboard ships. Moreover, instead of paying rent for space on ships, merchants began to arrange freight contracts with shipowners.14 Simultaneously, as merchants found other things to do, a specialised crew developed. Crew members received wages. Only occasionally were they assigned a small space in the hold of the ship in order to transport their own goods (voering). Meanwhile, the owner(s) of the ship generally stayed ashore and were represented on board by the skipper. The latter became more independent from the merchants, although, at times, he still needed to take council with either his passengers or his crew.15 From about the second half of the fourteenth century merchants only rarely accompanied their goods. This was due to changes in the organisation of trade (most importantly the use of bills of exchange), which made it possible for merchants to send goods to agents stationed abroad. As a consequence, skippers became even more independent from merchants. The increase in carrying capacity of fifteenth-century vessels meant that more people became involved in freighting a single ship. The skipper could now only afford to own a small part of a vessel or of its cargo. Instead, he was often an employee of the shipowners, and was accountable to them, standing at the head of a larger crew including a few officers (perhaps one or more helmsmen and boatswains).16 These developments are reflected in the sea laws which were recorded in the fifteenth century. Larger crews resulted in disciplinary problems on board, a subject which received significant attention in the fifteenth-century laws.17 Rules about the accountability of skippers were also laid down in this period. These developments occurred at different times in the various European regions and, as mentioned, corresponded with changes in the regulations 13 14

15

16 17

Müller-Boysen, Kaufmannsschutz und Handelsrecht, 48, 104. V. der Decken, Seearbeitsrecht im Hamburger Stadtrecht, 34; O’Sullivan, Ahndung von Rechtsbrüchen, 11. V. der Decken, Seearbeitsrecht im Hamburger Stadtrecht, 42. This was, for example, the case if the skipper decided to cast goods. See Chapter 2. V. der Decken, Seearbeitsrecht im Hamburger Stadtrecht, 24. O’Sullivan, Ahndung von Rechtsbrüchen, 36.

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regarding sea trade which will be discussed in the next chapter. In the thirteenth century written regulations regarding maritime law appeared simultaneously in three different regions of northern Europe: in Scandinavia, on the west coast of France and in the northern German towns. We will now look at each of these regions in turn. As described above, shipping in Scandinavia was often carried out by joint ventures using light vessels such as the longship, but also the larger storskip which could transport up to about 120 tons.18 One of the shipowners would normally act as skipper (stýrimaðr), but sometimes more than one stýrimaðr would be present on the ship.19 The stýrimaðr formed a shipping venture with the hásetar who, in exchange for the right of passage, had to perform duties aboard the ship. For the transportation of goods a fee was paid, but a say in the command over the ship was shared by the stýrimaðr and the hásetar.20 The regulations regarding these shipping ventures were recorded in Norway after 1176 in the Farmanna logh (seamen’s law) of the Bjarkeyjar réttr.21 They have only survived in some fragments. The Bjarkeyjar réttr, which were drawn up on an unknown individual’s initiative, existed beside the land laws of the different Norwegian regions (Gulathing, Frostothing, Borgarthing, Eidsivathing) and contained those laws that deviated from them. The Farmanna logh consists of nine articles concerning freighting contracts, the seaworthiness of vessels, the duty of freighters towards the skipper, the distribution of chores on board, damage to the ship and jurisdiction in the event of problems, which was shared by all aboard. In 1276 King Magnus Hakonson, also known as Lagabœtir (‘Law-mender’ or ‘Law-maker’), reformed both the land laws and the town laws, which were standardised to national laws.22 The town law created for Oslo, Bergen, Trondheim and Tonsberg has survived in the version drafted for Bergen.23 Part IX of this law is the Farmanna logh.24 This collection of laws 18 19

20

21

22

23 24

Bill, ‘Cargo vessels’, 94–5. Müller-Boysen, Kaufmannsschutz und Handelsrecht, 137. Muller-Boysen argued that being a stýrimaðr and owning part of the ship was a sign of high social status. Müller-Boysen, Kaufmannsschutz und Handelsrecht, 139. Pappenheim, Landwehr and V. der Decken wrote that all men involved in a venture freighted an equal amount of goods and that the profit of the extra goods that were loaded was shared equally among them (based on Bergen, art. 5): Pappenheim as cited in V. der Decken, Seearbeitsrecht im Hamburger Schiffrecht, 32, n. 138, and Landwehr, ‘Seerecht’, col. 1,600. Such a venture is similar to one of the forms Scandinavian trading ventures (felágh) could take, but these were not necessarily synonymous with shipping ventures. The other laws show no evidence that this was standard practice. See Müller-Boysen, Kaufmannsschutz und Handelsrecht, 128, 139. The name signifies market law, although the literal meaning is Birchisland Law. Edition in Stadtrecht für Bergen, ed. Meisner, 310–458, farmanna logh, 450–7. A few local differences remained in the new law, and the regions thus kept their own local laws. Just as for the regions, all four towns had their own version with small differences. Edition of the Bergen Town Law in Stadtrecht für Bergen, ed. Meisner, 258–301.

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is quite extensive and consists of twenty-three elaborate articles concerning freighting contracts and shipping ventures, the seaworthiness of the ship and the bailing of water, the punctuality of freighters and skippers (if a skipper was very late, the ship could leave without him), the necessity of having a skipper on board every vessel, the settling of disputes, fines for overloading and arrangements for return voyages. The laws also regulated jettison, damage to the ship, ship collision, the use of timber (trees) in cases of emergency, the salvage of anchors, sailing in convoys, the use of mooring places and of boats, and the towing of ships (to and from the beach). According to several of these rules, decisions had to be taken by a majority of the people on board. In 1281 King Magnus introduced this town law to Iceland under the name of Jónsbók. Its Farmanna lœg shows a few differences to that of the Bergen Town Law, mainly concerning specific Icelandic circumstances.25 The law consists of twenty-eight articles. Additions to the Bergen Town Law concern different shipowners wanting to use the same ship for varying purposes, mooring places and the hire of ships. These variations probably originated from the Gràgàs, the Icelandic law before Norwegian supremacy was established over Iceland in 1263.26 This law also included articles on overloading and the towing of ships. In Sweden, we find maritime regulations in the town law for Stockholm (Bjärköarätten) recorded between 1285 and 1296, and in the general Swedish Town Law promulgated by Magnus Eriksson (c. 1350).27 The sea laws in the former were largely based on the maritime regulations in the town law of Wisby, on the island of Gotland, a law which has survived only in a Low German version of 1341–4.28 A version in Swedish most likely also existed, since German and Swedish communities lived together in Wisby.29 Subjects dealt with in the Swedish laws include jettison, the reimbursement of damages, ship’s hire and the obligation to pay full freightage after a ship had left the harbour. This mix of regulations is similar to that in the other Scandinavian laws (for example as regards the decision-making by a majority) but there are also similarities to the Lübeck and Hamburg Town Laws.30 This suggests that there were some overlapping traditions between Scandinavia and northern Germany, which will be discussed further in the next chapter. 25 26

27 28

29 30

Edition of the Farmanna lœg in Stadtrecht für Bergen, ed. Meisner, 458–81. The laws, also known as Graugans, were handed down in two manuscripts from the second half of the thirteenth century. The sea law is only found in the older of these: Konungsbók (1258–60). Isländisches Recht, ed. Heusler, xi. Landwehr, ‘Seerecht’, col. 1,600. Edition in Helsinge-Lagen, ed. Schlyter (Lund 1844). Older forms of the law of Wisby formed the basis for the third Novgorod Skra from 1325 and also influenced the town law in Riga. Hasselberg, Visby Stadslag, 375. Edition in Wisby Stadslag och Sjörätt, ed. Schlyter, 1–182. Hasselberg, Visby stadslag, 361–2. Ebel, ‘Über skandinavisch-deutsche Stadtrechtsbeziehungen’, 328–9, 331.

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In Denmark, the town law of Schleswig (c. 1200), on which the town laws of Flensburg, Åbenra and Haderslev were based, needs to be judged as Scandinavian as well, even although Schleswig and Flensburg were not always under Danish control during the Middle Ages.31 This law shows clear similarities to the older Swedish and Norwegian laws, which can be explained from the fact that Schleswig (Haithabu’s successor from the late eleventh century) reached its peak as a Viking trading town in the twelfth century.32 Its merchants used vessels similar to those of the Scandinavian traders. The law contained ten articles on maritime law (Articles 53–5, 57–62 and 64), regulating mainly breaches of contract by merchants, mariners and skippers (for example in case of drunkenness), but also shipwreck and the casting of humans. The Schleswig laws were possibly adopted by Lübeck before it had formulated its own sea laws.33 In its early history Lübeck burghers originated mainly from inland regions and would not have had much experience of sea trade and its regulation. It is likely, therefore, that they initially adopted laws from trading partners of nearby ports.34 Shipping ventures also appear to have existed in England in the twelfth and thirteenth centuries, judging by regulations from the Leis Willelme from c. 1150–70.35 The oldest and best-known sea laws in north-western Europe are, however, the Rôles d’Oléron (or Jugemens de la mer), which were compiled for the wine trade from Brittany and Normandy to England, Scotland and Flanders. In this compilation we find evidence of the thirteenth-century changes in the organisation of shipping, which resulted in the drawing up of new laws regulating the relations between shipowners, skippers, merchants and crew. The Rôles d’Oléron carry the name of a small island off the coast of the medieval duchy of Aquitaine and were probably drawn up in French in, or shortly before, 1286.36 The two oldest manuscripts recording the laws, 31

32 33 34 35 36

Edition of the Schleswig Town Law in Danmarks gamle Købstadlovgivning, ed. Kroman, 3–17. Edition of the Flensburg, Åbenra and Haderslev Town Laws in ibid. 91–135 (c. 1300), 243–51 (1335), 265–76 (1292) respectively. Hasselberg, Visby stadslag, 359–60. Ebel, Lübisches Recht, 133. See also Chapter 5. Chapter 37, edition in Die Gesetze der Angelsachsen, ed. Liebermann, 514–15. Krieger, Ursprung und Wurzeln, 71: between 1224 and 1286, but most likely in, or shortly before, 1286. Scholars before Krieger mostly dated the Rôles to the twelfth century (for example, Black Book, ed. Twiss, i, lvii–lxiii; Biederstedt, ‘Eine neue Handschrift des Seerechtes von Damme’, 26), whereas others dated it to the eleventh century (for example, Lois Maritimes, ed. Pardessus, i, 298–301), but Krieger makes a good case for the thirteenth century (for a complete overview of authors up to 1970, see Krieger, Ursprung und Wurzeln, 40–2). The year in which the Rôles were sealed is given in some French copies as 1286, whereas some others stated it to be 1266. Krieger argues that this last date was the result of a copying mistake since the manuscripts with the year 1286 were written earlier. Krieger, Ursprung und Wurzeln, 39. Ward, World of the Medieval Shipmaster, 20, recently suggested that scholarly opinion agrees on a twelfth-century origin and also rekindled Twiss’s

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both dating from the early fourteenth century, are of English origin. This can be explained by the fact that Aquitaine had belonged de uxore to Henry II (1154–89) since his marriage to Eleanor of Aquitaine in 1153. A report written in 1329 even claimed that Richard I (1189–99) was the author of the laws and had written them at Oléron on his way back from the Holy Land before bringing them to England, but this seems highly unlikely.37 That the laws were mentioned in this report does show, however, that they were in use in England in the first half of the fourteenth century. This is confirmed by the appearance of the Rôles in two important legal manuscripts of the same period.38 By 1375 the law had become inadequate for English legal purposes and additions were made by a commission set up by King Edward III. This commission was active intermittently until 1403 and its activities resulted in the Inquisition of Queensborough. This, unlike the Rôles which are restricted to private law, also included articles on criminal and public issues, such as piracy, prizes and felonies aboard ships, of relevance to the English admirals.39 Meanwhile, in France the Rôles d’Oléron had been adopted as the official sea law by 1364.40 Copies of the laws spread throughout western Europe in the fourteenth century. There is a Flemish translation, known as the Vonnesse van Damme (the port of Bruges), dating from the late thirteenth or early fourteenth century.41 Apart from references to the harbour of Sluis, near Bruges, this translation is close to the original French text.42 Throughout the Middle Ages the Rôles d’Oléron were used in their original French in England. The

37

38

39 40

41

42

theory, dismissed by Krieger, that two traditions of the Rôles existed. Krieger suggested rather to divide the manuscripts up by various regions. Krieger, Ursprung und Wurzeln, 7. This was recently underwritten by Schweitzer, Schiffer und Schiffsmann, 24. Black Book, ed. Twiss, i, lviii. After having been shipwrecked in 1192 on his return voyage from the Holy Land, King Richard I was captured and handed over to Emperor Henry VI of Germany, who set him free only in 1194. Richard subsequently returned to England, travelling through Flanders and not via Oléron. Moreover, the Rôles show no sign that somebody as important as a king had anything to do with its ‘codification’. Krieger, Ursprung und Wurzeln, 43. Cf. Ward, World of the Medieval Shipmaster, 20, who wrote ‘reputedly formulated by Richard Coeur de Lion’ without further comment. The oldest extant copy, dating from the early fourteenth century and now located in London Metropolitan Archives, can be found in the Liber Horn (COL/CS/01/002, Ms. Liber Horn), a manuscript compiled for one of the most important English lawyers of his time: Andrew Horn (d. 1328), who was also a merchant in fish. Van den Auweele, ‘Zeerecht’, 221. The other manuscript is the Liber Memorandum (early fourteenth century, London Metropolitan Archives, COL/CS/01/003, Ms. Liber Memorandum). Ward, World of the Medieval Shipmaster, 23. A privilege from King Charles V of France gave Castilian merchants the right to bring their maritime matters before the court of Harfleur and to be judged according to the ‘coutume de la mer et les droiz de Layron’. Art. 42 of the ordonnance of April 1364, in Ordonnances des Roys de France, eds Secousse et al., iv, 423–38 (art. 42 at 436). Ward, World of the Medieval Shipmaster, 20. The texts of the various manuscripts show that there were indeed several translations. See Chapter 2. Korthals Altes, Ons oudste Zeerecht, 4.

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situation was different in Scotland, where the laws were translated into Scots in the fourteenth century. The earliest extant text, entitled Of lawis of scyppis, dates from the second half of the fourteenth century.43 There are eight more known copies in manuscripts from the fifteenth and sixteenth centuries. The translation appears to have been made from the original French, not the Flemish Vonnesse van Damme, and is quite close to the text in the Liber Horn.44 There is no specific evidence that the Rôles were adopted as the official Scottish sea law, but that the extant copies are all part of compilations of the main Scottish laws does suggest that they were in common use throughout the country. This means that the thirteenth-century basis of maritime law in France, England, Scotland and parts of the Low Countries was the same, though the laws developed differently from then.45 The Rôles d’Oléron did not originate in one port, as the name might suggest. The original of these written laws was presumably kept on the island of Oléron and transcribers of the text subsequently joined the name of the island to the law: ‘Ceo est la copie de la chatre Doliroun des jugemenz de la meer’.46 The text is a compilation of customary laws. Although the name Jugemens de la mer and the remark ‘et cest le jugement en ceo cas’ at the end of each article suggest that the regulations were judgements of a court in concrete cases, Krieger argued that they were in fact Weistümer (decisions made for hypothetical cases which were to be used in future lawsuits).47 The Rôles originally consisted of twenty-four articles, but because articles were sometimes omitted, divided or combined, the surviving copies sometimes include different numbers of ‘judgements’. The subjects regulated by the Rôles d’Oléron include payment of freightage in case of shipwreck, reimbursement of damages to cargo and ship in cases of jettison, other forms of general average and ship collision, loading and unloading of goods and securing of both ship and cargo, duties of pilots and their payment, breaches of contract as regards the settled time of loading, authority of the skipper to sell the ship (only in accordance with the owners), shipping gear or goods in cases of emergency and the necessity to confer with merchants 43

44

45

46

47

NLS, Bute Ms. 21246, ff. 172r–174v. The copy is preceded by four Scottish toll regulations entitled ‘Of law and the custume of Schippis’, ff. 171r–171v. A more extensive description and analysis of the Scottish translation of the Rôles d’Oléron is provided in Chapter 5. Both in France and in England additions were made to the Rôles. See, for example, Ward, World of the Medieval Shipmaster, with regard to England. Krieger, Ursprung und Wurzeln, 120. Edition in ibid. 123–45. The quoted line is the first line of the Liber Horn. Another edition, with an English tradition and commentary, was provided by Ward more recently (World of the Medieval Shipmaster, 183–205), but this contains some very minor mistakes in its transcription compared to Krieger, and a few misunderstandings in the translation and commentary. Krieger, Ursprung und Wurzeln, 31–2. About Weistum and hypothetische Urteilsfindung in Germanic law see Ebel, Geschichte der Gesetzgebung, 15–21. The exception to this is art. XVIII, where we find the remark ‘Et cest la custume en ceo cas’.

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as to the appropriate time to sail. The relationship between skipper and crew is regulated as regards hiring and firing of crew, responsibilities of the skipper in taking care of hurt or sick mariners, in supplying them with food and in keeping the peace, and duties of the crew as regards their presence aboard ship. In the second half of the fourteenth century a new written sea law appeared in the Netherlands: the Ordinancie ende insettinghe die de coopluden ende schippers holden mit malcander.48 It contains regulations with regard to shipping from the Zuiderzee to the rest of Europe. In most manuscripts, the text is combined with the Vonnesse van Damme and is placed either before or after it. It has been argued that the Ordinancie (for trade with northern Europe) was compiled to supplement the Rôles d’Oléron (for trade with western Europe) and that the first was never meant to stand by itself.49 In two manuscripts from the early fifteenth century the law is, however, presented on its own.50 One manuscript derives from Amsterdam, which is significant because the Ordinancie is sometimes considered to originate in this town.51 In addition, there are no signs in the Ordinancie that it was written as a supplement. The Rôles or Vonnesse are not named in the Ordinancie and both laws regulate similar subjects. Two of the articles from the Ordinancie were even copied verbatim from the Rôles.52 If the text was made to supplement the Vonnesse, it would not have been necessary to copy two of its articles. Moreover, the Ordinancie was not created but is instead a compilation of existing customs.53 48

49

50

51 52 53

Telting, Alt-niederländische Seerechte, xii; Biben, ‘Geschiedenis van het Oud-Nederlandsche Zeeregt’, 489. The title translates as ‘Ordinance and statute which the merchants and skippers observe amongst themselves’. This is the title used in the versions of the text in a manuscript from Staveren and in the manuscript from the Hanse kontor in Bruges (Ms. Bruges/Cologne). In some other versions (such as the Privilegieboek of Amsterdam) the title is ‘Ordinancie die de scipheers ende die coeplude mit malcander begheren [desire] van sciprecht’. In different manuscripts the Ordinancie is claimed, through the title, to have originated in either Amsterdam, Enkhuizen or Staveren; Telting (who published the text of the Ordinancie in four versions in Die alt-niederländische Seerechte) argues in favour of Staveren. As with the Rôles d’Oléron the actual place of origin is irrelevant, as the laws are codified customary law which were presumably held in the Zuiderzee area before they were written up. With regard to this, see Frankot, ‘De “Ordinancie van Staveren” ’ (forthcoming). Landwehr, ‘Seerecht’, col. 1,602; Wolter, Schiffrechte der Hansestädte, 41; O’Sullivan, Ahndung von Rechtsbrüchen, 42; Jahnke, ‘Hansisches Seerecht’, 46. The latter three claim that the Ordinancie was handed down only with the Vonnesse, though O’Sullivan’s wording suggests that there may be exceptions (‘Vielmehr ist die Ordinantie in der Regel nur zusammen mit der Vonnisse von Damme verbreitet und überliefert worden.’). In the Privilegieboek of Amsterdam (c. 1413, edition in Telting, Alt-niederländische Seerechte, 27–45) and in the Oldermansboek of Groningen (c. 1434–9, edition in Het Oldermansboek, ed. Feith, 22–33). See above, n. 48. Ordinancie, art. 5 and art. 7 = Oléron, art. 23 and art. 6 respectively. For a more extensive discussion of this, see Frankot, ‘De “Ordinancie van Staveren” ’ (forthcoming).

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These customs also relate to payment of freightage in cases of shipwreck, reimbursement of damages after jettison, other forms of general average and ship collision, loading, unloading and securing of cargo and costs of this, duties of pilots and their payment, the authority of the skipper to sell goods in case of an emergency, hiring and firing of crew, and rights and duties of mariners when they get hurt. Other subjects that are dealt with are bottomry54, overloading, the obligations of the skipper in the event of his being unable to complete the journey because of a significant decrease in the seaworthiness of the vessel during the voyage and the use of lighters in cases of emergency or when entering or leaving the Zuiderzee through Marsdiep or Vlie.55 A significant part of the Ordinancie thus deals with similar subjects to the Rôles, though at times a development in regulation is recognisable, as will be discussed in the next chapter. The inclusion of bottomry is another sign of continuing developments. The articles on the use of lighters, on the other hand, are related to the specific circumstances of sailing from or to the Zuiderzee. The oldest extant text of the Ordinancie is probably contained in the Amsterdam manuscript, dated to 1413.56 This text belongs to the larger group of manuscripts in which the Vonnesse van Damme are presented before the Ordinancie. Telting has argued that the text included in a seventeenth-century copy of the sea law from Staveren is older, but this is not likely, since some articles in the copy from Staveren show corruptions, whereas those from Amsterdam, for example, do not.57 Together with two copies from the early and late fifteenth century respectively, which were both used by the Hanse kontor (trading station) in Bruges, the Staveren copy forms the group of known manuscripts in which the Ordinancie comes before the Vonnesse.58 The basic text of the Ordinancie consisted of twenty-seven or twenty-eight articles: in some versions Article 3 was divided into two separate articles. In some manuscripts Articles 2 and 3 were omitted, while these two articles, sometimes together with three new articles, were added again at the end (see Table 1.1). In the copy from Groningen two articles from the Hamburg Ship Law were added at the end. No translations of the Ordinancie 54

55 56

57

58

In general, bottomry means using the ship as security against a loan to finance a voyage. In this case, it is used as security against the sale of merchants’ goods in case of an emergency. If the skipper cannot reimburse the value of the goods at the port of destination, the merchant is entitled to claim part of the ship. For the article on bottomry, see Landwehr, Seerecht der Hanse, 15; Cordes, ‘Flandrischer Copiar Nr. 9’, 132. For the Marsdiep and Vlie, see Chapter 3. A manuscript from Dordrecht from the late fourteenth century was mentioned by Den Tex in 1828, but its current whereabouts are unknown. The manuscript was in private possession in the nineteenth century. Den Tex, ‘Oud-Nederlandsch Zeeregt’, 513–14. Telting, Alt-niederländische Seerechte, x, xiv; Frankot, ‘De “Ordinancie van Staveren” ’ (forthcoming). MS Bruges/Cologne and Flandrischer Copiar No. 9 (now kept in Lübeck) published in Seerecht im Hanseraum, eds Jahnke and Graßmann, 23–31.

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Table 1.1: The articles in selected manuscripts of the Ordinancie. Staveren 17th century

Amsterdam 1413

Danzig I 1407

Danzig II 1429

Kampen c. 1425–50

Groningen 1434–9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 – – – – –

1 2 3–4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 – – – – –

1 – – 2 3 4 5 6 7 8 9–11 12 13 14 15–16 17 18 19 20 21 22 23 24 25 26 27 28 – – – – –

1 28 29 2 3 4 – 5 – 6 7 8 9 10 11–12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 – –

1 29 30 2 3 4 5 6 7 8 9 10 11 12 13–14 15 16 17 18 19 20 21 22 23 24 25 31 26 27 28 – –

1 2 3 4–9 10 11 11 12 13 14 15–16 17 18 19 20 21 22 23 24 25 26 27 27 28 29 30 31 – – – 32 Hamb SL 33 Hamb SL

were made in the Middle Ages like there were of the Rôles d’Oléron, and the area of dissemination would therefore have been smaller than that of the Rôles, but there are manuscripts from Flanders, the Netherlands, northern Germany, Denmark and Prussia which include the text. The development of a compilation of Vonnesse, Ordinancie and Lübeck law in the later fifteenth century, which was known as Waterrecht, will be discussed below. First, we need to focus on parallel developments in the towns of northern Europe, especially in northern Germany. The towns in northern Germany, Hamburg and Lübeck in particular, were largely autonomous and as such developed their own town laws,

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or adopted laws from other towns. The latter happened especially when daughter towns were founded, such as the large group of towns established by Lübeck, whose law was thus disseminated widely in the coastal regions of the southern Baltic. Between these towns a common legal tradition existed. The larger trading towns especially, which were the most autonomous, developed their own laws. This was the case for Hamburg, Lübeck, Riga, Kampen and (eventually) Danzig. Though some mutual influencing took place, some developments in these laws clearly stand on their own, as will be discussed further below. In contrast to the customary sea laws, which were written to be applied in a large area, the maritime regulations in the town laws were restricted to skippers, shipowners, crew members and merchants of a single town.59 All citizens were bound to these laws by an oath which they took annually.60 The customary sea laws were only valid when they were accepted by a group of people as the law, as in Bruges and in some towns in the Netherlands, or when they were enforced by royal authority, as in France and England. That the autonomous northern European trading towns developed their own maritime regulations suggests that they did not adopt the customary laws, though some did own copies of these. These copies were presumably only used in cases in which the town law was incomplete.61 The customary sea laws contained, moreover, private law restricted to the problems that arose during the journey and to those involved in the sea trade, whereas urban maritime regulations also contained public law relating to harbours and wreck.62 Finally, the fines that needed to be paid for a breach of rules were (at least partly) paid to the town, whereas in the customary sea laws they fell to the injured party. Besides these differences in substantive law between the customary laws and the maritime regulations in the town laws, there are no major distinctions with regard to the subjects covered in these compilations. Smaller disparities will be treated in the next chapter. The oldest extant manuscript including the Lübeck Town Law was written in Latin around 1227. Other manuscripts that have survived are those written for Reval in 1257 and for Danzig in 1263.63 These Latin 59

60 61 62 63

The words ‘town law’ in this study indicate a collection of customs, privileges and by-laws (keur, Willkür). See Dilcher, ‘Stadtrecht’, 613. The term ‘customary sea laws’ (‘Seegewohnheiten’) has been adopted from Landwehr, Das Seerecht der Hanse, 13. Landwehr also differentiates between these customary laws and the maritime regulations of the towns, which may in their turn contain customs. Dilcher, ‘Stadtrecht’, 613–14. See Chapter 7. Krieger, Ursprung und Wurzeln, 33. Am Ende argued that the Reval manuscript is actually a copy of a text that was written for Reval in 1257. Am Ende, Verfassungsgeschichte Lübecks, 48–9. See Chapter 4. For detailed descriptions of the manuscripts and their relation, see Am Ende, Verfassungsgeschichte Lübecks, 46–54; Ebel, Lübisches Recht, 201–2. For a separate tradition in eastern Europe, see Ebel and Schelling, eds, ‘Das lateinische lübische Recht’, 93–105.

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versions of the town law display only two articles with regard to sea law, apart from that for Reval, which has six.64 The first law in Low German was formulated in the late 1260s or early 1270s.65 The oldest extant copy is from around 1275 and was composed for Elbing (which had already received a now missing Latin copy around 1240). Soon thereafter, a copy was made for Reval (1282). In these late-thirteenth-century copies of the Town Law the number of articles regarding maritime law ranges from nine to eleven.66 These articles regarded the payment of freightage after shipwreck, reimbursement of damages in cases of jettison, of other forms of general average and of ship collision, and hire of ships. A reform of the law by Albrecht von Bardewik in 1294 did not result in a separate section on sea law, but five years later this chancellor of Lübeck compiled a separate maritime law which was partly based on the Hamburg Ship Law.67 In the first half of the fourteenth century, the Ordnung für Schiffer und Schiffsleute was issued. In seven articles the rights and duties of the crew relating to particular chores on board ship were laid down.68 The separate regulation of these rights and duties indicates that relations between skipper and crew were sometimes problematic. The oldest extant town law of Hamburg is that edited by the notary Jordan von Boizenburg in 1270, which survives in copies from Stade (1279) and Riga (1294/7). Before this Low German law (known as the Ordeelbook) appeared, a Latin version had been in existence from around 1225.69 The section on sea law, Van Schiprechte, which is found in the Riga copy and in a later edition from Hamburg (1301/6), is missing from the Stade manuscript.70 In a letter from Hamburg to Lübeck of 1259, a sea law is, however, referred to as scipseghelinghe, indicating that, initially, a separate tradition 64

65

66 67 68 69

70

Art. 41, 90, 94–7, in Quellen des Revaler Stadtrechts, ed. Von Bunge, vol. II. Jahnke states there are nine articles in the oldest edition of the town law (‘Hansisches Seerecht’, 45), presumably referring to the oldest Low German edition. Soon after 1267, before 1282: Am Ende, Verfassungsgeschichte Lübecks, 74; between 1260 and 1282 (perhaps between 1260 and 1276): Frensdorff, Das lübische Recht, 65 See Chapter 4. This relationship is discussed more thoroughly in Chapter 5. LUB III, no. 112; HUB II, no. 667. Reincke, ‘Das hamburgische Ordeelbook’, 88. The word Ordeelbook (book of judgements) is probably a translation of the Latin Liber iudicorum which could mean both book of laws and book of judgements. Bilderhandschrift. Erläutert von Reincke, 138. This manuscript is wrongly dated 1292 by some authors. Bilderhandschrift. Erläutert von Reincke, 139–40. Edition in Stadt-, Schiff- und Landrechte Hamburgs, ed. Lappenberg, 75–86. Jahnke skips over the existence of the early Hamburg Sea Law (as well as the 1299 Lübeck Sea Law), only presenting the relatively few articles in the Lübeck Town Law as an example of the ‘scarcity’ of maritime regulations in the German town laws. He adds that these became more extensive only in the later fourteenth and fifteenth centuries and were presented as a separate section for the first time in the 1497 Hamburg Town Law. Jahnke, ‘Hansisches Seerecht’, 45–6. He does mention the adoption of Hamburg regulations in Riga and Lübeck in 1270 [sic] and 1299 respectively later on. Ibid. 58.

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of town and sea law existed.71 This is confirmed by the introductory words of the section on maritime law in the 1301/6 edition, which suggest that the shipping law was ordained separately: ‘The common council and the burghers of the town of Hamburg have ordained and published this shipping law.’72 The sea law was probably joined with the town law between 1279 and 1294/7. Between this last date and 1301/6, seventeen regulations were added to the Hamburg Ship Law, bringing the total to twenty-eight, which suggests that many developments took place that needed regulation.73 Besides being used in part by Lübeck and Riga, the law was adopted by Bremen between 1303 and 1308 and by Oldenburg in 1345, resulting in some legal commonalities between these towns.74 A revision of the Hamburg Town Law, carried out by Hermann Langenbeke in 1497, will be discussed below. Before copying Hamburg’s Town Law, Riga had already made use of another law. The town had been founded in 1201 by the bishop of Livonia, who remained lord of the town thereafter. He provided the town with a form of Gotlandic town law (jus Gutorum), similar to an older form of Wisby Town Law.75 Merchants from Gotland had helped the bishop Christianise the area, and relations between the town and the island were close.76 That Riga’s town law was rooted in that of Wisby did not stop its burghers from changing it. Already in 1238 they asked their bishop for permission to change the law to fit their demands.77 Between 1294 and 1297 Riga copied the complete Hamburg Town Law. Before then hardly any relation between Hamburg and Riga can be demonstrated.78 Hamburg law was, however, more comprehensive and systematic than that of Lübeck at this time, and this may have contributed to Riga’s preference. Moreover, Riga and Lübeck were not on the best of terms politically in the late thirteenth century because of a conflict of interest between Lübeck and Riga’s ally Wisby as regards the trading station at Novgorod. 71 72

73 74 75

76 77 78

HUB I, no. 538 (1259) Hamburg 1301/6, art. 1. ‘De meine raet unde dhe borghere van der stad van Hamborch hebbet dit schiprecht gewilkoret unde uth ghegheven.’ See Table 5.1. The contents of these laws will be discussed further in Chapter 5. Wolter, Schiffrechte der Hansestädte, 32. This town law of Riga has survived in a statute of 1227–8, consisting of forty-eight Latin articles, which was written for the burghers of Reval who had chosen to use Riga law in their town. There is no maritime law in this code. That this law was based on Gotland law is testified only by charters. The older Wisby Town Law has not survived and it is therefore impossible to compare the two. Frensdorff, ‘Das Stadtrecht von Wisby’, 65; Quellen des rigischen Stadtrechts, ed. Napiersky, xi–xiv. The term jus Gutorum came up for the first time in the 1220s in a conflict between bishop and town about the election of a town judge. Frensdorff, ‘Stadtrecht von Wisby’, 60. The term denotes the laws of the German population on Gotland. Frensdorff, ‘Stadtrecht von Wisby’, 63. Frensdorff, ‘Stadtrecht von Wisby’, 60. Ibid. 64. Only two privileges from the count of Holstein to allow the Riga burghers to trade in Hamburg free of toll (from 1251 and 1254) survive. Frensdorff, ‘Stadtrecht von Wisby’, 78.

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This conflict was solved in 1297.79 At the start of the fourteenth century, the Riga council used its copy of the Hamburg laws to revise the Riga Town Law. Besides some Hamburg regulations, this revised law consists of older Riga laws and Lübeck law. The section on sea law was subsequently supplemented with five articles (Articles 18–22) during the fourteenth and fifteenth centuries.80 The final product thus consists of various elements, both originating in Riga and not, but as a whole it is unique to Riga. The maritime regulations in this revised Riga Town Law relate to the usual subjects of shipwreck, jettison and other forms of general average, ship collision, overloading, the costs of loading and unloading, payment of freightage when the ship has left the harbour and payment of the crew, but also to more particular subjects such as nocturnal collisions, the division of costs of bringing goods into town when the harbour is frozen over, the use of the Rigan flag, salvage of goods on the beach and at sea, costs of a pilgrimage in case of an emergency situation, the hire of barges and, finally, arrangements of selling parts of the ship and deciding on the use of the vessel in case of several shipowners. In Novgorod, the German merchants at the kontor made use of the Skra. The first Skra of about 1270 does not include articles regarding maritime law. The second Skra, on the other hand, does and shows clear influences from Lübeck law. It was written in 1295–6 to promote Lübeck’s bid for hegemony in Novgorod and includes the stipulation that appeals from Novgorod’s court had to be sent to Lübeck. Up until that time Wisby had featured as Novgorod’s higher court. Novgorod’s third Skra from 1325 shows a minor setback in Lübeck’s plans to control the kontor: appeals were permissible to both Lübeck and Wisby, which were then to decide jointly on contested matters.81 The third Skra is very similar to the second, but its differences were based on Wisby law.82 As regards the articles of maritime law (Articles 38, 58 and 59, on jettison, cutting masts and freighting goods respectively), only Article 38 was amended in accordance with Wisby law. Neither later forms of the Skra (there were seven editions in total) nor any of the kontor’s by-laws touch upon sea law.83 The last town law which needs to be discussed here is that of Kampen, which developed separately from the other town laws discussed so far. In 79 80

81

82

83

Frensdorff, ‘Stadtrecht von Wisby’, 79–80. Landwehr, ‘Haverei’, 113. Edition in Quellen des rigischen Stadtrechts, ed. Napiersky, 194– 200. Frensdorff, ‘Stadtrecht von Wisby’, 83. From 1373 Lübeck functioned as the sole high court for the Novgorod kontor. Frensdorff thought the influence worked in the opposite direction. Hasselberg argues, however, that the editors clearly tried to bring the Skra into line with Wisby’s law. Hasselberg, Visby stadslag, 358. Edition of the Skras in Die Nowgoroder Schra, ed. Schlüter. That the Novgorod Skra refers to maritime law despite its geographical position in the inland of Russia can perhaps be explained by the fact that maritime cases were sometimes brought to the Novgorod kontor by German merchants trading there.

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two compilations of laws from the late fourteenth and early fifteenth centuries (Dat Boeck van Rechte and Dat Gulden Boeck) a few regulations can be found which are unique in northern European maritime law, as will be shown in the next chapter.84 Others regulate similar subjects to articles from the Ordinancie, which is due to the fact that both the Kampen Town Law and Ordinancie regulated shipping on the Zuiderzee, and concerned circumstances specific to an inland sea. This relation will be discussed further below.85 In the fifteenth century, existing laws were combined in order to create compilations that were comprehensive regarding subject matter and/ or included laws from the entire northern European region.86 Only the Hanseatic statutes, which appeared all through the fifteenth century, were newly developed. In these, the discussed development of larger ships and alterations in the organisation of trade come to the fore. Compilations of the Vonnesse van Damme and the Ordinancie had appeared from the late fourteenth century. These were generally referred to as Waterrecht. In three Danish manuscripts from the middle of the fifteenth century, two articles were added at the end.87 The first is from the Lübeck Town Law of 1294 (Article 137), the second is the first article of the Ordnung für Schiffer und Schiffsleute, also from Lübeck. The version of the Ordinancie in these manuscripts is the shortest that exists.88 In a manuscript from the second half of the fifteenth century, also from Denmark, fourteen articles from the Ordnung (Articles 1–6), from an unknown source (Article 7) and from the Lübeck Town Law of 1294 (Articles 8–14) were copied, followed by the texts of the Vonnesse and the Ordinancie plus the two articles noted above.89 The first fourteen articles were written by a different scribe and were numbered separately, indicating that this is the first instance that these regulations were combined. It is also unlikely that the compilation came into existence deliberately, as all articles would then have been written by a single scribe and numbered consecutively. A consecutive numbering from 1 to 66 was, however, only added at a later stage. The first and last articles are identical (Article 1 of the Ordnung).90 This manuscript was probably used for the first printed edition of the compilation by Godfried von Gemen (Copenhagen 1505) headed ‘Her 84 85 86 87

88

89

90

Edition of the Kampen laws in Overijsselsche Stad-, Dijk- en Markeregten, vol. I. See Chapter 5. The exact function of the laws will be analysed in the following chapters. Two manuscripts are kept in the University Library at Copenhagen, the third at the Royal Library in Stockholm. Wisby Stadslag och Sjörätt, ed. Schlyter, lviii–lix. The second and third articles are missing, as are the three articles that were added at the end in some other manuscripts. See Table 1.1. Royal Library Copenhagen, no. 3123, ff. 270v–282v. For a full description of this manuscript, see Wisby Stadslag och Sjörätt, ed. Schlyter, lvi–lvii. In the printed versions and some later manuscripts this last article is therefore shortened. For an edition of this manuscript, compared with the texts of the other Danish manuscripts and the 1505 print, see Wisby Stadslag och Sjörätt, ed. Schlyter, codex I, 185–258.

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beghynt dat hogheste water recht’ (‘here begins the highest water law’).91 At the end he added ‘Here ends the Gotlandic water law which the common merchant and skippers have statuted and made at Wisby, so that all men may conform to this.’92 This name of Gotlandic water recht has been the cause of much confusion ever since, but the compilation is still known as the Gotland or Wisby Sea Law.93 It is certain, however, that the laws were not statuted at Wisby, because the compilation consists wholly of laws originating elsewhere and, as said, probably did not come into existence deliberately. The most likely explanation for Gemen’s title is that the original manuscript of the compilation, which he used for the edition, was kept on Gotland, just as the original charter of the Rôles was preserved on Oléron.94 A second printed version of the compilation appeared in Amsterdam in 1532, headed ‘Hier beghint dat hogheste und dat olste water recht van Wisbij’ (‘here begins the highest and oldest water law of Wisby’).95 This edition is mentioned by authors regularly, but has been wrongly assumed to have been the model for the third edition of the text (Lübeck 1537), which includes five articles from the Ordinancie that are missing in the 1505 edition.96 Instead, the 1532 version is a copy of the 1505 edition with five articles omitted (Articles 7, 11, 20, 24 and 38). The 1532 edition may in its 91 92

93

94 95

96

Wisby Stadslag och Sjörätt, ed. Schlyter, xxvii–xxviii. ‘Hyr eyndet dat gotlansche water recht dat de gemeyne kopman unde schippers geordineret un ghemaket hebben to Wisby, dat sik alle man hyr na richten mach.’ Not until the nineteenth century were all constituent parts correctly identified. Many suggestions have also been made as to the origin of the name of the law code, which cannot all be considered here. For more detailed research, see Chapter 4. The only known copy is bound together with the Kaert vander Zee, printed by Jan Seversz, who worked in Amsterdam. Both texts were probably printed together. Unfortunately, the surviving copy (KB Brussels, sign. II 28.584 A LP) is incomplete. It breaks off in the middle of art. 58 of the Wisby Sea Law. Nijhoff and Kronenberg, Nederlandsche Bibliografie (NK), nos 3,290 (Kaert vander Zee) and 4,085. The edition would otherwise probably have had sixty-three articles. The 1532 Amsterdam edition was mentioned by Johan Hadorph in his Företaal tot Then gambla Wijsby Siö-Rätt (Stockholm 1689), ff. [2a–b] (as cited in NK) as having been printed in Holland. Lois Maritimes, ed. Pardessus, i, 401, 456–7, wrongly combined the date of 1532 with another edition mentioned by Hadorph which was printed in Harlingen in 1646 and thus wrote of an edition from Harlingen of 1532. Verwer, Nederlants See-Rechten, 37, on the other hand, wrote of Amsterdam; he might therefore have seen the printed edition. Biben, ‘De Geschiedenis van het Oud-Nederlandsche Zeeregt’, 238, added to the confusion by speaking of a Boeck der Zeeregten printed in Middelburg in 1532. Wisby Stadslag och Sjörätt, ed. Schlyter, xix, xcv, did not manage to trace a printed edition of 1532 and Holtius attached no credit to such an edition but did somehow assume that later editions were translations of a Dutch text (‘Het Wisbysche Zeeregt’, 426, 428). Three years before, he had still quoted Biben’s Middelburg edition: ‘Over Wisby en het Wisbysche Zeeregt’, 222. Through the NK the text has finally been retraced. Because of the inclusion of the capital of Gotland in the title, editions from 1532 onwards were called Wisby Sea Law, in contrast to Gotland Sea Law being used for the 1505 edition. Because of the recently discovered similarities between the editions from 1505 and 1532, both will here be called Gotland Sea Law and the editions of 1537 onwards Wisby Sea Law.

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turn have been the model for two manuscripts of the Gotland Sea Law from Lübeck written in 1533 and 1537, because these manuscripts omit the same articles and show other similarities too. Judging by an addition to the title of the Ordinancie in the 1532 edition, the compiler had recognised this part of the text as being Netherlandish: ‘datmen in Hollant, Zeeland, Vlaenderen holdende zyn’ (‘which is held in Holland, Zeeland and Flanders’). The Lübeck laws and the Vonnesse were, on the other hand, considered ‘Wisby law’: ‘ende mit dat Wisby rechte dat is dat olste waterrecht’ (‘and with the Wisby law which is the oldest water law’). This addition can also be found in the two Lübeck manuscripts, but not in any of the subsequent editions. The 1537 Lübeck printed edition was partly based on that of 1532 or on one of its manuscript copies from Lübeck, but the remaining part is based on another model, including some articles which are missing in the other editions.97 This 1537 version was subsequently translated and printed many times throughout the sixteenth and seventeenth centuries.98 The dissemination of the Waterrecht (including Lübeck law) in the fifteenth century was, however, limited. The only known manuscripts are from the Danish kingdom, although Danzig may also have owned a copy in the second half of the fifteenth century.99 The spread of the Gotland and Wisby Sea Laws in the sixteenth century lies outside the scope of this study. Another compilation in which various laws were joined together, although in a different way, is the ship law of the revised Hamburg Town Law of 1497. Dr Hermann Langenbeke, a lawyer and Hamburg’s burgomaster from 1482, revised the shipping laws of 1301 with the help of the Vonnesse van Damme, the Ordinancie and the Roman Lex rhodia de jactu. The result was a systematised, modernised sea law, the constituent parts of which were no longer immediately recognisable.100 The 1497 Ship Law was probably the only reasonably up-to-date compilation of the late fifteenth century.101 From the late fourteenth century, the Hanse regularly issued statutes regulating trade and shipping in its region of influence. As time progressed, these became increasingly more extensive, but they were never systematically organised during the Middle Ages. Statutes regarding maritime law can therefore be found scattered throughout the Hanserecesse (minutes of the Hanseatic meetings) of 1378, 1380, 1412, 1417, 1418, 1434, 1435, 97

98

99 100

101

The first twelve articles (Articles 1–14 of the 1505 text without Articles 7 and 11) are almost verbatim the same as those in the 1532 edition. Lübeck 1537, Danzig 1538, Copenhagen 1545, Stockholm 1549, Amsterdam 1551, and so on; see Wisby stadslag och Sjörätt, ed. Schlyter, xcv. According to Schlyter, Hadorph also mentioned a 1536 London edition, which he could not find. Ibid. xix. See Chapter 4. Bilderhandschrift. Erläutert von Reincke, 144. It is, however, possible to recognise individual articles. The constituents of the Waterrecht and Gotland Sea Law were of course from the thirteenth and fourteenth centuries.

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1441, 1447 and 1470.102 Some statutes were repeated regularly and in the 1447 recess all the statutes of the preceding years were collated. This compilation included twenty-five articles regarding sea law. In 1470 only a few of these were repeated. As Jahnke has correctly pointed out, therefore, it would be inaccurate to speak of a Hanseatic sea law in the fourteenth and fifteenth centuries.103 Indeed, when the Common Merchant in London in 1476 desired to procure a sea law to be able to settle problems they had been experiencing with seamen, the Hanseatic representatives at Lübeck responded that they did not have an approved comprehensive law.104 The statutes are generally ad hoc regulations concerning problems that arose at a particular time. They were therefore relatively up to date when drawn up and give a more accurate picture than the sea laws of legal practice (or ideals) at a certain time.105 The fact that some statutes were repeated over and over again indicated that the need for some rules persisted. Duties of shipowners towards the Hanse, obligations of skippers towards shipowners and competences of skippers towards the crew were regulated in these statutes.106 In 1482 a separate Schifferordnung appeared, regulating the dealings between skipper and crew.107 The twenty-four articles of this Schifferordnung had been drafted by Lübeck after complaints about unreliable seamen by Hanseatic skippers in 1480 and were accepted by the Wendish towns shortly thereafter, after also having been approved by Danzig.108 A good example of the fifteenth-century tendency to create collections of sea laws is a manuscript from the Hanseatic kontor at Bruges which is known as the Flandrischer Copiar Nr. 9 and which is now kept in the Lübeck Archives. It was written between 1485 and 1509 and was kept publicly in the house of the Oosterlinges.109 The manuscript holds a collection of Hanseatic statutes from 1434, 1441 and 1447, the Ordinancie, the Vonnesse van Damme, a statute about salvage, some articles about seamen’s pay when the ship has taken an alternate route and the Schifferordnung of 1482.110 102

103 104

105 106 107 108

109 110

HR 1, II, no. 156, 30 May 1378, § 23; no. 157, 30 May 1378, §§ 1–4. HR 1, II, no. 220, 21 Oct 1380, §§ 18–19. HR 1, VI, no. 68, 10 Apr 1412, §§ 32–4, 40–3, 47–8; B. §§ 28–34, 44. HR 1, VI, no. 397, 20 May–28 Jul 1417, §§ 33–5, 109, 114–16; no. 398, 24 Jun 1417, §§ 14–23. HR 1, VI, no. 556, 24 Jun 1418, A. §§ 65–8; B. §§ 34–46; no. 557, 24 Jun 1418, §§ 20–32. HR 2, I, no. 321, 5 Jun 1434, §§ 13, 20–2, 29–30. HR 2, I, no. 396, May 1435, §§ 1–6. HR 2, II, no. 439, 12 Mar 1441, §§ 22–4, 30–1. HR 2, III, no. 288, 18 May 1447, §§ 30–7, 40, 54, 55, 63–5, 79, 81–2, 88–95. HR 2, VI, no. 356, 24 Aug 1470, §§ 28, 31–3, 38–40, 42. Jahnke, ‘Hansisches Seerecht’, 67. HR 2, VII, no. 338, 28 May–20 Jun 1476, §§ 194.4, 203.5. Goetze, ‘Der Anteil Lübecks’, 137–8. O’Sullivan, Ahndung von Rechtsbrüchen, 196. Landwehr, ‘Seerecht im Hanseraum’, 97–8. HR 3, I, no. 367, 22 Apr 1482. ‘Forderungen der Schiffer betreffs der Ordnung des Verhältnisses zu ihrem Schiffsvolke’, HR 3, I, no. 318, Dec 1380; HUB X, no. 927, 18 Sep [14]81. Landwehr, ‘Seerecht im Hanseraum’, 113. See also Chapter 5. For the definition of Oosterlinges, see Chapter 4, n. 70. Edition in Seerecht im Hanseraum, eds Jahnke and Graßmann.

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During the three centuries that have been discussed in this overview of the history of maritime law in northern Europe, there were many different developments, sometimes occurring consecutively, sometimes in parallel in the various regions. The laws themselves can be divided into two main groups: the customary sea laws and the maritime regulations as part of a town law. The Scandinavian sea laws, which were dealt with separately here because they play only a minor role in this study, should be assigned to the second group as they were laid down for a clearly defined region and people. The citizens in this region, whether country, province or town, were bound to this law by an oath. The customary sea laws, on the other hand, were adhered to only when they were accepted by an undefined group of people as the law or when they were enforced by a national authority as in England and France, and possibly Scotland. Besides that, the customary laws were restricted to private law, whereas the maritime regulations in the town laws, in general, were not. With regard to content, some subjects were regulated in all or most of the laws, though this does not mean that they were dealt with similarly, whereas others appear only in one or two compilations. Some laws are also more comprehensive than others. The most important subjects, which are dealt with in all of the laws, are shipwreck, general average and ship collisions. Although copies of the customary sea laws were widely disseminated throughout the region, many towns had their own maritime regulations; these would have been used in the first instance. When these towns had a copy of one of the customary sea laws, it would presumably only have been used when the town law proved incomplete. Another possibility is that these compilations were kept in the towns for the purpose of becoming acquainted with the law that was utilised elsewhere. There was some mutual influencing between the regulations of some of the towns, but the town laws of Lübeck, Hamburg, Riga, Kampen, Wisby and Danzig were clearly different, as will be analysed further in the next chapters. In the fifteenth century first attempts were made at compiling laws to create texts that were more widely usable. The spread of the Waterrecht, a compilation of the customary sea laws and maritime regulations from Lübeck, was too limited in the Middle Ages for the law to be called common. The revised Hamburg Ship Law, on the other hand, only came into existence in 1497 and remained restricted to the town of Hamburg. Finally, the Hanseatic regulations enacted from the late fourteenth century were meant to be adopted by all the Hanse towns, but there were many towns in northern Europe that did not belong to this league.111 Moreover, these statutes were by no means comprehensive, only regulating cases for which no satisfactory rules existed. Based on these observations, it must be concluded that none of the 111

Even within the Hanse the statutes were not all accepted by the individual Hanse towns. See also Chapter 3.

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written sea laws that were compiled and developed during the latter part of the Middle Ages were available throughout northern Europe. It would therefore be inaccurate to speak of a common maritime law as regards the written compilations of sea laws. Since the different compilations may, however, have contained similar regulations that were valid throughout the area, the content of the various written laws will be compared next.

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Shipwreck, Jettison and Ship Collision in Maritime Law 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, 1

2

3

‘Gerade in der Seeschiffahrt gibt es jedoch naturgegebene Sachzwänge, die unabhängig von dem jeweiligen Stand der Rechtskultur und der geographischen Lage, zur Ausbildung inhaltlich übereinstimmender Regeln führen.’ Landwehr, Haverei, 104. 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’. Whether any influence due to close relations took place will be analysed in Chapter 5 as regards the local laws of Lübeck, Danzig and Kampen.

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regulated matters differently). Did variations in the written laws continue to exist in these compilations or were these eradicated? Shipwreck 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 4

5

6 7

8

In England, for example, under Henry I (r. 1100–35) and Henry II (r. 1154–89) a ship was defined a wreck only if none of the crew survived. Richard I (r. 1189–99) changed this: now even the heirs of the owners could lay claim to their ship and goods. Henry III (r. 1216–72) decreed that if a man, a dog or a cat survived, a vessel was not a wreck. Niitemaa, Strandrecht in Nordeuropa, 58–9. 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. Freightage/freight here means a charge for the transportation of cargo. 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; Lübeck SL, art. 16; Kampen BvR, art. 98; Kampen GB, art. 9; Danzig, art. 2; HR 1447, art. 93. Wisby TL, art. 12; Ordinancie, art. 1; Lübeck TL, art. 230; Hamburg 1497, art. 6.

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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 ‘afkennyngh 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 9

10 11 12 13 14 15

‘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. For a discussion of the payment of freightage in Lübeck’s practice, see Chapter 7. Oléron, art. 4. Vonnesse (Kampen), art. 4, also in Gotland SL, art. 18; Wisby SL, art. 16. Bute Ms, art. 17. HR 1447, art. 94. Danzig, art. 2.

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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 16 17 18 19

20

21 22

23 24

25

Kampen BvR, art. 98; Kampen GB, art. 9. HR 1447, art. 93. Landwehr, ‘Prinzipien der Risikotragung’, 607. 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. HR 1412, art. 33; HR 1417a, art. 115; HR 1417b, art. 17; HR 1418, art. 30; HR 1447, art. 31 and art. 41. Bergen, art. 9. 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. Die ältesten Schiffrechte Hamburgs, ed. Lappenberg, cxxxviii, n. 3. Hamburg 1301/6, art. 28; Hamburg 1497, art. 42; Lübeck SL, art. 30; Riga I, art. 13; Riga II, art. 12. Wisby TL, art. 3.

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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 awa¯rı¯a, 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 26 27

28

29 30

For an exception (Aberdeen), see Chapter 7. 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. In the city states of Italy (Venice, Pisa and Genoa) and in Valencia the term avaria was already used from the second half of the thirteenth century. It appears in Dutch and Hanseatic legal sources in the sixteenth century. In the 1551 Ordinance of Emperor Charles V for the Netherlands (art. 28, 41 and 42) and in the Hanseatic Sea Law of 1614 (VIII; XII, art. 2) a distinction between general and particular average was already made. Landwehr, Haverei, 5. Ibid. 3. Ibid. 4.

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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 31

32 33

34

35 36

Lotelghelt is dealt with in the same article as jettison in most laws (Ordinancie, Boeck van Rechte, Gulden Boeck). In the 1497 Hamburg Ship Law, it is handled separately, but the reimbursement is to take place ‘alse werpgelde’ (‘as jettison’). 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. Landwehr, Haverei, 4–5. 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. ‘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. ‘Ob tuicionem vite et bona obtinenda’: HUB I, no. 538. Hamburg 1497, art. 33.

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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 37

38

39 40

41 42

‘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 necessitatem 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; Bergen, art. 10; Jónsbók, art. 10; Bjärköarätten, art. 20.1; Gotland SL, art. 7; Leis Willelme, art. 37. Oléron/Damme, art. 8; Oléron, art. 9; Ordinancie, art. 5; Ordinancie, art. 4; Hamburg 1301/6, art. 22; Lübeck TL (1257), art. 94. Landwehr, Haverei, 12. 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 [1746], §§ 67–8, as cited by Landwehr, Haverei, 16. Grágás, art. 166; Bjärköarätten, art. 20.1; Swedish TL, art. 11. 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

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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 northwestern 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

43

44 45

46 47

48

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. ‘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. Wisby TL, art. 10; Novgorod III, art. 38. This is not the only regulation that is based on an older law, as will become clear again below. Article 38 of Novgorod II was based on Lübeck TL, art. 89. Landwehr, Haverei, 17. He speaks solely of Hamburg and Lübeck here, but the town laws of Riga and Kampen do not consider consultations either. See below.

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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

49

50

51 52

53

54 55

56

Oléron, art. 9; Damme, art. 9, also in Gotland SL, art. 23 and Wisby SL, art. 21; Ordinancie, art. 5. ‘Die schipper is schuldich den coopluyde te vraghen ende te claghen synen noot.’ Ordinancie, art. 5. Wisby TL, art. 11. 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. Novgorod III, art. 58 (the same as Novgorod II, art. 58, which was adopted from Lübeck TL, art. 153). Hamburg 1497, art. 33. ‘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. 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.

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The valuation of the goods 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 57

58

59 60

61

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. ‘Alse dat in deme markete ghecostet hevet’ (‘by how much they have cost at the market’): Riga II, art. 22. Kampen BvR, art. 5. ‘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. [1407] (unnumbered article). ‘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.

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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 62

63

64

65 66 67

‘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. ‘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. ‘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. NLS, Bute Ms. 21246, art. 21 (f. 174r). See also Chapter 4. The same was concluded by Forte, ‘ “Kenning be kenning” ’, 60. 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.

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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 Jónsbók 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 68

69

70 71

72 73 74

‘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. Gotland SL, art. 7. Landwehr, Haverei, 57, wrote that the article was copied in six manuscripts, without detailing which. The only manuscripts known to me are the Copenhagen manuscript on which the 1505 edition is possibly based and a copy from Danzig in the second Waterrecht manuscript (APG, 300, R/Fq, 2, ff. 31r–50v). Landwehr, Haverei, 25. 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; Novgorod II, art. 38 (not in Novgorod III). Oléron, art. 8; for the text, see above. Landwehr, Haverei, 26. Bergen, art. 8; Jónsbók, art. 10.

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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, 75 76 77 78 79 80

81 82

Landwehr, Haverei, 25–6. Ibid. 64. Riga II, art. 4. Riga II, art. 18. Bergen, art. 8; Jónsbók, art. 10; Grágás, art. 166; Bjärköarrätten, art. 20.1. Landwehr, Haverei, 43. For the earlier developments in Scandinavian sea law, see Landwehr, Haverei, 43–4. Leis Willelme, art. 37. ‘Et y doit le mestre partir a countre la nef ou soun fret a soun chois pur estorer le damage.’Oléron, art. 8. Ward takes ‘fret’ to mean cargo. Ward, World of the Medieval Shipmaster, 96.

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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 83 84 85 86

87

88 89

90

Bute Ms, art. 21. ‘ibi dabitur a magistro navis cum mercatoribus marcha marche coequalis’. HUB I, no. 538. Landwehr, Haverei, 48. ‘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. Landwehr, Haverei, 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. Riga I, art. 7; Riga II, art. 4. 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. ‘Ende die scipheere sal gelden van sinen scepe jof van sijnre vrachte, wes die coeplude dairof kiesen.’ Ordinancie (Privilegieboek), art. 4. In the three manuscripts that are known to have a copy of the Ordinancie before the Vonnesse van Damme (Mss Staveren, Bruges/ Cologne and Flandrischer Kopiar), it says ‘van synen schepe ende van syner vrachte’ (my underlining) (‘of his ship and of his freight’), without leaving out the words ‘wes die cooplude daaraf kiesen’ (‘whichever the merchants choose’). As this does not make sense, a mistake must have been made when the article was copied (either the change was mistakenly introduced, or the last words were accidentally left in). Landwehr wrote that this mistake was included in some manuscripts of the sixteenth century, but I have only come across it in texts from the late fourteenth to fifteenth centuries. Landwehr, Haverei, 55.

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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 91 92 93 94

This applied when freight was only paid for saved goods, which was, in general, the case. Landwehr, Haverei, 52. Ibid. 52–3. In the Gotland Sea Law the choice of the merchants which had been laid down in the

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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

95 96 97

98

Ordinancie was left out too, but in the Wisby Sea Law it was not. Gotland SL, art. 41; Wisby SL, art. 38. Kampen BvR, art. 4. Kampen BvR, art. [1407]. 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. 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, Nederlants 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 harsh judgement 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, Nederlants See-Rechten, 50. None of the other manuscripts nor any of the prints known to me have this mistake.

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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 99 100

101

Kampen BvR, art. 4. Cf. Landwehr, Haverei, 50, who stated that the Kampen Town Law adopted the method from the Ordinancie. See also Chapter 5. ‘Dat schep unde dat gut, dat dar worpen is, scal men rekenen, wat dat wert is, des scal dre marc gan vor en punt.’ Riga II, art. 4; a similar rule can be found in art. 18.

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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.108 102 103

104 105 106 107 108

Bjärköarätten, 20.2; Wisby TL, art. 3. ‘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. Landwehr, Haverei, 45. Riga II, art. 4. Riga only used the Hamburg Town Law to create its own laws. Lübeck TL (1257), art. 94. The article is missing in the manuscript from Danzig of 1263. ‘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 schal

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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,

109

110 111

dat schip unde de lude de in deme schepe sint gelden na marktal, unde de schiphere schal sin del gelden.’ Lübeck TL, art. 153. Landwehr notes this difference as well, but does not go into possible reasons or implications. Landwehr, Haverei, 47. Kampen BvR, art. 5; Kampen GB, art. 14. ‘Dit recht heb wi laten scrijven van sciepen de comen mit ghasten oft mit borgheren tot onser havene ende soe wanner sie comen tandern havenen in andern lande, dar nemen si dat recht alse daer zedelic ende woentlic is.’

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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 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.113 112

113

For example, in the Codex Hammurabi from about 1750 bc. Landwehr, ‘Prinzipien der Risikotragung’, 595. Cf. Jahnke’s comment that only the Rôles d’Oléron and the Ordinancie dealt with sea law ‘proper’ (though without defining this), such as ship collision. Jahnke, ‘Hansisches Recht’, 47.

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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 114

115

116 117

118 119

As discussed above, medieval law in general only distinguished between intent and accident. Whether or not a person handled carelessly was not yet considered. Landwehr, Haverei, 16. ‘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. Hamburg 1301/6, art. 21; Riga I, art. 6; Hamburg 1497, art. 47; Riga II, art. 3. Lübeck SL, art. 23, similar regulation in Lübeck TL, art. 132, also in Gotland SL, art. 65 and Wisby SL, art. 71. Wisby SL, art. 27. ‘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.

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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 120

121

122

123

‘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. 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 scams’. Ward, World of the Medieval Shipmaster, 169. Oléron, art. 16; Vonnesse, art. 16 or art. 11 in some manuscripts, also in Gotland SL, art. 31 and Wisby SL, art. 28. For a more detailed explanation of this situation, see Jahnke and Graßmann, eds, Seerecht im Hanseraum, 78, n. 85. 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.

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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 124 125

126 127

Riga I, art. 2; Riga II, art. 2. ‘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. Oléron, art. 15. ‘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).

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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. 128

129

130

‘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. ‘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. 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.

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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.

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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.

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3

The Five Towns Introduced Now that it has been established that neither a single written law compilation was available, nor that common regulations regarding the discussed subjects were valid throughout northern Europe during the later Middle Ages, it is time to determine whether any communality can be found in legal practice at the urban courts. Questions such as which written laws were available in the courts; whether any influence of other compilations on the contents of the written laws can be established; whether the written laws were used for the administration of justice; and what the content was of the judgements passed by the courts will be answered in Chapters 4 to 7 as regards the five towns selected for particular study (Aberdeen, Kampen, Lübeck, Reval and Danzig). In this chapter these towns will first be introduced and then compared. Aberdeen Aberdeen was the only one of the five towns considered in this study that was an integral part of a single state throughout its medieval history: the kingdom of Scotland. This does not mean that this status was uncontested throughout its history. English kings in the late thirteenth and fourteenth centuries repeatedly tried to annex Scotland to their kingship. Moreover, the medieval Scottish kings never ruled a fully centralised kingdom. The territory was too vast and inhospitable for effective control in all corners of the land.1 Despite the existence of several burghs, Scotland remained essentially a rural society throughout the Middle Ages. Towns were small compared to those in England and on the continent, and only a small proportion of Scots came to live in them.2 Aberdeen is situated at the transition of a cliffy coastline from the south and dune-fringed beaches from the north, between the estuaries of the rivers Dee and Don. Until 1891 two towns existed in Aberdeen: Old Aberdeen, or Aberdon as it was sometimes called, and New Aberdeen. Old Aberdeen was the seat of a bishop from 1131 and was centred around St Machar’s Cathedral.3 New Aberdeen started as a small trading and fishing 1 2

3

Clancy and Crawford, ‘The formation of the Scottish Kingdom’, 29. Ditchburn and Macdonald, ‘Medieval Scotland’, 97; Dennison, Ditchburn and Lynch, eds, Aberdeen before 1800, xxvi; Lynch, Spearman and Stell, ‘Introduction’, 4. The name Old Aberdeen suggests that the settlement is older than New Aberdeen. By

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settlement in the early Middle Ages. The Dee estuary provided a good starting point for overseas and inland trade, and was a valuable source of fish.4 Not until the second half of the eleventh century did Aberdeen become a place of some importance. Foreign merchants had been encouraged to trade in Scotland by Queen Margaret during the reign of King Malcolm III (1058–93), and some commerce is known to have existed with Flanders and England at this time. It is very likely that Aberdeen was one of the destinations of this trade as it was named as one of three main trading centres north of the Forth (with Perth and Inverkeithing) in the early twelfth century.5 Aberdeen became a royal burgh during the reign of King David I (1124– 53), gaining certain economic and legal privileges. Because of Aberdeen’s position so far north of all other large ports on the east coast (Berwick, Leith, Dundee and Perth), it grew to become the dominant port in the northern part of the kingdom.6 This position was strengthened through royal privileges, such as a weekly market and an annual fair. The town was thus able to become a central distribution point for all goods that were produced in a very large hinterland. The annual fair would, moreover, attract merchants from further afield.7 The Scottish towns had a unified town law: the Laws of the Four Burghs (Leges Quatuor Burgorum). These included regulations from the late twelfth and early thirteenth centuries and were compiled in the second half of the latter century at the latest.8 In contrast to continental town laws, which generally came into existence as part of the bids by urban communities to gain independence from (local) lords, the Scottish burghs and burghal laws were created under royal patronage. This meant that the burghs were part of the legal structure of the realm, and did not have a legal status completely separate from it like the continental towns, though they did have a certain measure of autonomy.9 The four burghs were Roxburgh, Berwick, Edinburgh and Stirling, which also made up the Court of the Four Burghs, first documented in 1292.10 This court existed to handle questions from the Scottish towns regarding

4

5 6

7 8 9 10

1131 New Aberdeen already existed and was perhaps even a royal burgh, whereas Old Aberdeen would not become a burgh of barony until 1489. See also Dennison and Stones, Historic Aberdeen, 93. Dennison, ‘Aberdeen before Aberdeen’, 4; Dennison, Simpson and Simpson, ‘The growth of the two towns’, 13. Dennison and Stones, Historic Aberdeen, 14; Dennison, ‘Aberdeen before Aberdeen’, 6. Dennison, ‘Aberdeen before Aberdeen’, 6. See also Stevenson, ‘Trade between Scotland and the Low Countries’, 271. Dennison and Stones, Historic Aberdeen, 18. MacQueen and Windram, ‘Laws and courts’, 209–11. Ibid. 212. In 1368 David II decided that Roxburgh and Berwick, which were now both in English hands, were to be replaced by Linlithgow and Lanark. Pagan, The Convention of the Royal Burghs, 11.

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Map 3.1: The Kingdom of Scotland.

customary law, to function as a higher court in matters concerning the burgh laws and to stipulate new ordinances. The court was presided over by the king’s chamberlain, who also visited each burgh annually to hold court (the ‘eyre’) and supervise burghal affairs.11 In the fifteenth century the Court of the Four Burghs was possibly extended to include members 11

Ibid. 2, 5, 10.

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from all burghs.12 The Scottish towns were also subject to decisions of the parliament in the shape of legislation and statutes gathered in the Acts of Parliament, but as the central administration was not powerful enough to execute these laws effectively, these acts were often not implemented.13 The early burgh of Aberdeen was governed by royal officials. By the fourteenth century these consisted of a praepositus, also known as alderman or provost, and four ballivi, bailies.14 The latter remained royal officials throughout the Middle Ages, thus officially dispensing the king’s justice, and presided over their own bailie court.15 The alderman, on the other hand, represented the guild or the town community.16 In burgh government, the officials were supported by the burgh court (curia burgensium, curia burgi), which consisted of all the burgesses. In these meetings local laws and customs were established by which all were bound.17 Head courts (curia capitali), in which all decisions affecting the entire community had to be approved, were held three times a year. A council was in place from the late fourteenth century at the latest, which in Aberdeen consisted of between twelve and twenty-four members and was presided over by the alderman.18 The legal court (curia legalis, later also curia tenta per ballivos) was presided over by the bailies, but decisions were made by the burgesses present.19 This court mainly considered civil cases, but matters concerning mercantile affairs such as forestalling and the unprivileged cutting of cloth were handled by the guild court, presided over by the dean of guild.20 The dean also claimed jurisdiction over all maritime cases but, in accordance with Article 25 of the Leges Quatuor Burgorum, such cases were normally handled by the bailies instead.21 From the mid-fifteenth century, the provost and the bailies were sometimes appointed depute admirals and were thus competent to treat admiralty cases. An admiralty court for the whole of Scotland existed from at least 1488.22 Because of the international character of many 12

13 14 15

16 17 18

19 20

21

22

Ancient Laws and Customs, ed. Innes, ii, x. This is confirmed by ACA, ACR IV, p. 497, Bailie court, 3 Nov 1447. See also Chapter 7. Lynch, ‘Towns and townspeople’, 175. Ewan, ‘Age of Bon-Accord’, 37. With regard to the dispensing of royal justice, see MacQueen and Windram, ‘Laws and courts’, 214. Early Records, ed. Dickinson, cxv. Ibid. lxxix. Ibid. lxxxiii. Ewan (‘Age of Bon-Accord’, 37) wrote of a council of between twelve and twenty, but in 1447 there is mention of a council of twenty-four (ACA, ACR V.ii., p. 724, Guild court, 4 Nov 1447) and there may be other instances of this. As such, it would be more accurate to speak of a council of between twelve and twenty-four. Early Records, ed. Dickinson, cxxi. Ibid. cxxviii. With regard to the merchants’ guild, see also Booton, ‘Economic and social change’, 46–57. Early Records, ed. Dicksinson, cxii. Welwod in 1613 wrote that before the office of admiral was created, the deans of guild had handled civil cases ‘betwixt Mariner and Merchant’: Welwod, Abridgement, 11. Early Records, ed. Dickinson, cxiii. The first man who was named as Scottish admiral was

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maritime cases and the diplomatic relations sometimes involved, maritime cases were also regularly remitted to the Lords of Council from the late fifteenth century. Indeed, in the sixteenth century, there was an occasional struggle as to who was competent: the admiral, the bailies in their function as the admiral’s deputes or the dean of guild.23 Burgesses could appeal against decisions of the burgh courts before the Chamberlain’s Eyre which was held once a year, but also to the Court of the Four Burghs. Parliament also functioned as the country’s highest court, but the King’s Council gradually came to supersede it in the fifteenth century. The pressure of an increasing number of cases demanded a more professional and fixed body than parliament which only sat for short periods and was not able to administer regular justice effectively. By the 1490s the Council, seated in Edinburgh since the 1460s, had taken over parliament’s judicial functions almost completely. This development eventually culminated in the foundation of the College of Justice in 1532.24 Scotland and the Hanse Although Scottish towns were, and could never be, members of the Hanseatic League, their main trading partners were German merchants based in Flanders.25 Before 1321 a Scottish staple was established in Bruges, which functioned as the great entrepot for trade from northern, western and southern Europe, and, in principle, all Scottish wool, hides and woolfells were exported there. The Scots enjoyed special protection and privileges in the town and from 1407 the interests of the Scottish merchants in Bruges were represented by a ‘Conservator of the Scottish privileges’.26 Relations with Bruges were, however, not without their problems. Because of falling trade and general maritime turmoil, Scottish merchants became involved in piracy, which resulted in a Hanseatic embargo on the import of cloth made from Scottish wool from 1412 to 1415 and

23 24 25

26

Alexander Stewart, earl of Mar, in 1415. Calendar of Papal Letters to Scotland, 1394–1419, ed. McGurk, 306. The office was firmly established from 1488 when the first earl of Bothwell, Patrick Hepburn, became Lord High Admiral. The office remained in the hands of the earls until 1568. The oldest extant admiralty acts are from the second half of the sixteenth century. Acta Admirallatus Scotiae 1557–61, ed. Wade, xiii–xiv. See also McMillan, ‘The Admiral of Scotland’, 12, and for the Lord High Admiral and his jurisdiction in Scotland, see Murdoch, The Terror of the Seas?, 10–20. The first Curia admirallatus that I have come across in Aberdeen is from 1451, when the depute admirals Gilbert Menzies and John of Fife represented George of Crightone, lord of ‘Carnys’, admiral of Scotland. ACA, ACR V.i., p. 127, Curia admirallatus, 13 Sep 1451. See also Chapter 7. Early Records, ed. Dickinson, cxiv. Finlay, ‘Foreign litigants’, 38–9. Godfrey, Civil Justice in Renaissance Scotland, 10, 27. The Hanse developed from an association of merchants under the protection of the German emperor and therefore consisted solely of ‘German’ towns. These included the towns founded by Germans on the southern Baltic coast, such as Danzig and Reval, but not the trading stations (kontors) at Bergen, Bruges, London and Novgorod. Stevenson, ‘Medieval Scottish associations with Bruges’, 95, 100.

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from 1419 to 1436.27 This embargo was not enormously effective, since some of Scotland’s most important trading partners, such as Danzig, Stralsund and Hamburg, opposed and broke it.28 Trade with Bruges also continued, although the Scottish staple was moved to Middelburg in Zeeland several times during the fifteenth century, and trade also started to develop with Veere, Bergen op Zoom and Antwerp from the 1460s. However, Bruges remained Scotland’s main trading partner until the late fifteenth century, as well as being the main outlet for Aberdeen’s wool.29 Kampen Kampen lay in the Oversticht, consisting of the present-day provinces of Overijssel and Drenthe, and the town of Groningen, subject to the Utrecht bishop and part of the German Empire. The base of the bishop’s power lay in the Sticht, the present-day province of Utrecht, and the bishops were generally too weak to use their power far beyond this province. In the twelfth century, when trade along the River IJssel started to develop, merchants settled at a strategic point beside the mouth of the river.30 In the second half of the twelfth century, a large church was built to serve the community of settlers; the size and allure of this church implies that the settlement was already of some significance.31 By the mid-thirteenth century Kampen had already become a trading centre of some standing in northern Europe. This is confirmed by the privilege issued by King Abel of Denmark in 1251 for the umlandsfaræ or ommelandvaarders, traders who took the sea route around Skagen to reach the Baltic instead of the land route from Hamburg to Lübeck. Although the privilege does not specify who exactly its beneficiaries were, we can assume that burghers of Kampen were among them, as an original of this privilege is kept in the Kampen archives.32 Kampen’s swift development was 27

28

29

30 31 32

The most prominent of these pirates was Alexander Stewart, earl of Mar, who operated from Aberdeen in the early fifteenth century together with Aberdeen’s provost Robert Davidson. Mar was appointed admiral around 1423. Ditchburn, ‘Merchants, pedlars and pirates’, 375. Jackson, ‘Aberdeen and the sea’, 160. Many Stralsund ships can found in the council registers. Several cases involving Stralsund skippers were, for example, handled at the town courts in 1478: ACA, ACR VI, p. 546, Bailie court, 11 Sep 1478; p. 547, Curia burgi, 25 Sep 1478; p. 549, Burgh court, 3 Oct 1478; p. 553, Curia burgi, 12 Oct 1478; pp. 557–8, Bailie courts, 13–14 Oct 1478. Ditchburn, ‘Cargoes and commodities’, 19. Ditchburn, ‘Merchants, pedlars and pirates’, 348–69; Stevenson, ‘Trade with the south’, 194; Stevenson, ‘Medieval Scottish associations’, 107; Ditchburn and Harper, ‘Aberdeen and the outside world’, 387. Kossmann and Kossmann-Putto, ‘Kampen en Essen’, 141. Ibid. 129. Kossmann-Putto and Kossmann, ‘Ontstaan van Kampen’, 4. Original in GAK, OA, no. 2004, 24 Sep 1251 (printed in HUB I, no. 411). The privilege is also mentioned in a charter of 1362 as being issued for Kampen (HUB IV, no. 54, 21 Aug 1362).

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Map 3.2: The Netherlands around 1300.

due to its geographical situation: it was surrounded by fertile land and wellstocked water. From the second half of the twelfth century, moreover, the mouth of the river IJssel was deep and wide enough for trading vessels to reach Kampen. Floods in the second half of the thirteenth century widened the openings from the Zuiderzee out to the North Sea: the Vlie (between Vlieland and Terschelling) and, some years later, the Marsdiep (between Huisduinen and Texel). Seaborne ships could now enter the Zuiderzee, providing better conditions for long-distance trade to the coastal towns by this inland sea.33 The IJssel formed an important waterway with the towns in the Rhineland and especially Cologne. Thus, Kampen became a trading and transhipment point for goods from the countries bordering the North and Baltic Seas and from the Rhineland. 33

Don, ‘Das niederländische Kampen als althansische Schiffahrts- und Reederstadt’, 67–8.

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In the thirteenth century the Kampen government consisted of the schout representing the bishop, schepenen (aldermen), raden (councillors) and the universitas civitatis Kampensis or gemeente (town community).34 How exactly these groups functioned within the local government in this period is unclear. Around the end of the thirteenth and beginning of the fourteenth centuries the schepenen and raden made use of the unrest that existed within the Utrecht diocese to make a bid for greater autonomy. The increase of power of the schepenen and raden took place at the expense of the schout’s authority. As a result, the schout lost his influence on town government, although he did remain involved in the administration of justice.35 Town government from the fourteenth century consisted of twelve schepenen, who were supported by twelve raden. In practice, the same men from the rich merchant families remained in government throughout their lives. Two burgomasters, appointed for a month at a time, were in charge of daily government.36 Besides dealing with daily government, the schepenen were also in charge of law and order. The two burgomasters administered justice in the lower court in which civil cases and small offences were handled. Appeals and larger offences were considered by the higher court which consisted of all the schepenen. Appeals from this court could be lodged before the full board of schepenen and raden. The schout administered justice over guests.37 An important role in the town government was played by the clerk, especially at the start of the fourteenth century when books recording the administration of the town and the law started to appear.38 Two collections of town laws have survived from the late fourteenth and early fifteenth centuries: the Boeck van Rechte and the Gulden Boeck, respectively, which will be discussed further below. Kampen and the Hanse The relationship between the Hanse and the town of Kampen was complex. Occasionally Kampen functioned as a neutral power or blockade breaker in conflicts between the Hanseatic League and Norway, Flanders, Denmark and Holland. Nonetheless, the town was very interested in the activities of the League, and regularly attended the Hanseatic meetings. Between 1367, when Kampen decided to join the war against Denmark, and 1393, the town was present at thirty-five meetings, more than any

34 35 36 37 38

Kamper Schepenacten, ed. Kossmann-Putto, 2. Ibid. 3–4. Ibid. 5–7. Ibid. 4, 7–8. This change in the registration regarding town and legal administration around 1300 is not unique. It is a development that can be seen throughout Europe. Le Bailly, Recht voor de raad, 116.

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other Netherlandish town.39 Kampen also at times shared in the Hanseatic privileges. In 1441 Kampen applied for (re)admission into the Hanse and was accepted.40 Some Hanseatic towns were suspicious of Kampen, expecting its traders to be working with merchants from Holland and Zeeland. Thorn and Königsberg, for example, were against Kampen being granted membership at all, and Danzig only agreed to admission if Kampen would commit itself to comply with the League’s rules. Kampen remained a member of the Hanse into the early sixteenth century when the League had already lost most of its importance, and when Kampen’s trade had also become less significant. From the second half of the fifteenth century the IJssel had slowly silted, making it more difficult for increasingly large sea-trading vessels to navigate. Kampen’s trade further deteriorated when it became involved in wars between the duke of Burgundy and the duke of Guelders. These ended in 1528 when Utrecht, Overijssel and Drenthe were annexed by the Habsburg emperor, Charles V. Trade with the Baltic continued, but Scania had already lost its significance by then and the merchants from Holland and Zeeland had become too dominant for their position to be easily challenged by those from Kampen and neighbouring towns. Lübeck In the 1140s a new town of Lübeck was founded about six kilometres from the old Slavonic castle of Lübeck (Alt-Lübeck, Slavonic Liubice) by Count Adolf II of Schauenburg, the new lord of Holstein since the area had been taken over by Germanic people. The new town was situated on a peninsula by the meeting point of the Trave and Wakenitz rivers, in a location better suited for the large trading settlement that Adolf had in mind than that of Alt-Lübeck.41 Through its position on the coast of the Baltic Sea 39

40

41

Staveren was present thirteen times, Harderwijk eleven times, Elburg eight times, Zutphen fourteen times, Deventer only five times. Four towns from Holland and Zeeland also regularly visited the meetings: Amsterdam nineteen times, Zierikzee twelve times, Dordrecht ten times and Brielle eight times. For a list of meetings and the attendance of towns from the Netherlands, see Meilink, Nederlandsche Hanzesteden, 118–19. Because no clear proof of earlier membership exists, some authors doubt if Kampen was readmitted in 1441. (among others W. Stein in HGbll 40 (1913), 541ff. as cited by Petri, ‘Die Stellung der Südersee- und IJsselstädte’, 47, n. 48.) The recess from that year states, however, ‘dat men se wedder in de hense entfenge der se ychteswilke tijt ontboren hadden’ (‘that they were again received in the Hanse, which they have had to do without for a while’). HR 2, II, no. 439, meeting at Lübeck, 12 Mar 1441, §25. Thus, the general view in 1441 was that Kampen (or its merchants) had shared in the rights and privileges of the Hanse before. Whether we would like to define this as membership now or not is irrelevant. Gläser, Hammel and Schefter, ‘Lübeck’, 249; Hammel-Kiesow, ‘Die Anfänge Lübecks’, 37–42; Am Ende, Verfassungsgeschichte Lübecks, 194.

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and its favourable infrastructure, the town soon became an important centre of trade in the area. It continued to grow in the second half of the twelfth century despite regularly changing overlords.42 In 1200 and 1201 the county, including the towns of Hamburg and Lübeck, was conquered by the Danish king Knut IV (1182–1202). Lübeck had by this time already grown to some importance in the Baltic region. Knut was succeeded by his brother Waldemar II (1202–41). Lübeck was now part of a kingdom which spread over a large part of the Baltic area. As a result, the town could extend its trade in the southern and eastern Baltic regions. When King Waldemar II sought to establish his power in Estonia and Livonia, after these areas had been partly Christianised and colonised, he eventually lost touch with Lübeck’s needs, even temporarily closing down its harbour in 1220. In 1223, when Waldemar and his son were captured by northern German lords, Lübeck renounced Danish overlordship.43 In 1226 Lübeck was granted Reichsfreiheit by Emperor Frederick II (1220–50). This meant that the town would acknowledge the emperor as its sole lord, and never again be conveyed to another vassal.44 From that time Lübeck was almost completely autonomous, although officially still part of the German Empire. Little is known about Lübeck’s government in the twelfth century. The different lords of the town were usually represented by a Vogt (advocatus, governor). This Vogt convened all citizens who owned property in the town to the so-called Echteding three times a year. At this meeting, questions of communal property, town affairs and inheritance cases were handled. These same citizens were called to the Vogtding, where all criminal and private law cases were considered. Day-to-day town government was probably conducted by merchants on behalf of the wider body of citizens. By a privilege of Emperor Frederick I of 1188, the community of burghers was granted statutory rights (rights of kore, Willkürrecht), and some time before 1201 the independent representation of the civilians became formalised through the creation of consules.45 These consules soon developed into an executive as well as legislative council, relatively independent from the community. Two-thirds of the council members were responsible for daily government, whereas the remaining third were on leave for a year, only to be called upon when important matters were handled (for example when new by-laws were decided upon). The two most eminent councillors were appointed burgo42

43 44 45

Duke Henry the Lion of Saxony and Bavaria (1159–80); Emperor Frederik I Barbarossa (1180–90); Count Adolf III of Holstein (1190–1200/1). Hammel–Kiesow, ‘Anfänge Lübecks’, 49; Gläser, Hammel and Schefter, ‘Lübeck’, 250; Hoffmann, ‘Lübeck im Hochund Spätmittelalter’, 103, 105. Hoffmann, ‘Lübeck im Spätmittelalter’, 113–14. LUB I, no. 35, Jun 1226. Am Ende, Verfassungsgeschichte Lübecks, 162. Ebel, Lübisches Recht, 227, 319. Hoffmann, ‘Lübeck im Spätmittelalter’, 217–18. Am Ende, Verfassungsgeschichte Lübecks, 136.

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Map 3.3: Denmark and Schleswig-Holstein.

masters from about 1230–40. Around 1300 this number was raised to four. Two were responsible for daily government, whereas a third, similar to the arrangements among councillors, was on leave. The fourth (and youngest) burgomaster was a member of the council and only called to office if one of the other three died.46 The communitas (a representative body of 46

Am Ende, Verfassungsgeschichte Lübecks, 212, 232. Ebel, Lübisches Recht, 232.

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the burghers of the town) was expected to attend important council meetings, so as to create a broader base for its decisions. The bursprake, which is first recorded in 1297, was a gathering of all the burghers of the town at which the by-laws were read out to them and they were informed about new statutes and decisions, much like the burgh court in Aberdeen. They were then required to swear an oath to abide by these laws. In later times it was instituted that all citizens were to be present at these meetings.47 From around 1243 the Vogt, who by that time only functioned as a judge chosen by the council, was joined by two councillors in the Vogtding, also known as the Niedergericht (lower court). During the fourteenth century the Vogt disappeared from the Niedergericht altogether and was replaced by a clerk.48 In the Niedergericht, criminal and private law cases were handled, but serious cases and appeals were considered by the council.49 For guests, a guest court (Gastgericht) existed which could handle cases more swiftly than the other courts, in order to expedite the business of short-term visitors to the town. Cases that involved guests could also be brought before the Niedergericht and the council.50 In these courts Lübeck’s own town law was utilised. Collections of laws were written in Latin in the thirteenth century; manuscripts in Low German started to appear from the last third of that century. These laws were edited and supplemented over the years with new statutes and by-laws. They were copied for dispatch to between eighty and one hundred towns which were granted Lübeck law in the thirteenth and fourteenth centuries. Lübeck functioned as a higher court (Oberhof) for these towns, although some intermediary courts were instituted for the smaller towns, such as for example at Reval, Elbing, Anklam, Rostock and Greifswald.51 Lübeck and the Hanse The terms ‘Lübeck’ and ‘Hanse’ are practically inseparable. During the four centuries that the Hanseatic League was active, Lübeck was its political head (caput omnium).52 This was because the town played such an important role in northern European commerce. Since Lübeck’s main activity was long-distance trade, it did everything in its might to further its trade. It 47

48 49

50 51 52

Pitz, Schrift- und Aktenwesen, 290, 295–6, 314; Ebel, Lübisches Recht, 316–17; Hoffmann, ‘Lübeck im Spätmittelalter’, 235. Pitz, Schrift- und Aktenwesen, 261–2, 358. In the Niedergericht, judgements were passed by a group of burghers who were chosen by the governor from the public present at the case. This group was presided by a lawfinder (Rechtfinder) who would propose a judgement which would then be decided upon by the group. The judgement was finally passed to the judges who again had to consent and then make the judgement public. Ebel, Lübisches Recht, 347, 351; Hoffmann, ‘Lübeck im Spätmittelalter’, 237. Cf. with the procedure in the council, Chapter 6. Ebel, Lübisches Recht, 376–7. Ibid. 241–2. Gläser, Hammel and Schefter, ‘Lübeck’, 248. See also Henn, ‘Was war die Hanse?’, 21.

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gained trading privileges in as many territories as possible, combined with other towns (in hanses) to gain a commercial advantage in different ports; it threatened trading partners through blockades, for instance Novgorod in 1277, Bruges in 1280 and Norway in 1284, and it even pursued war.53 Hanses were originally associations of merchants from one or several towns that traded in a particular foreign port or territory, in order to defend their interests in a more effective way, mainly by gaining privileges from foreign lords.54 The thirteenth century saw some changes in the manner in which trade was conducted. First of all merchants, having accompanied their goods up until this time, increasingly started to handle their business from their home town which, as was discussed in the first chapter, is reflected in, for example, the maritime laws. Abroad, they were represented by their associates or assistants in several different towns, which caused the volume of trade of single merchants to grow.55 Second, towns became increasingly more involved in trade, protecting business that was conducted by their burghers, and setting up trading agreements or negotiating privileges with other towns or territories.56 This was because town councils consisted mainly of merchants. Moreover, the council members from the different Baltic towns were often related. Thus, whereas in the twelfth century hanses were generally associations of individual merchants, backed up by their respective home towns, from the thirteenth century the towns became more actively involved.57 This is also the period in which the northern German towns first started to draw up maritime regulations. Because of recurring conflicts between the German merchants on one side and the town of Bruges and its lord on the other, Lübeck decided to call all towns that traded in Bruges to a general meeting in 1356. This meeting is generally considered to be the first Hansetag, the first general meeting of the Hanseatic League. Soon thereafter a blockade was set up against Bruges (1358–60). Despite meeting on a regular basis after 1358, the Hanseatic League would never become a clearly defined union with a constitution and comprehensive rules or its own executive or financial organs. The Hanse was an Interessengemeinschaft, sharing communal interests, but only existing and functioning when urban interests corresponded.58 Shared interests ensured that, although consisting of an ever-changing group of towns, the League remained active throughout the 53 54

55

56 57

58

Gläser, Hammel and Schefter, ‘Lübeck’, 248. Hoffmann, ‘Lübeck im Spätmittelalter’, 140. For a description of the meaning of the word hanse and of the Hanse, see Henn, ‘Was war die Hanse?’, 14–23; Hammel-Kiesow, Die Hanse, 26. This was made possible through changes made in the mode of payment. Hammel-Kiesow, Hanse, 52–3. Hammel-Kiesow, Hanse, 54. Recently, authors have moved away from the idea that there was a clear development from hanses of merchants to hanses of towns to the thesis that there was not such a clear change. For example Hammel-Kiesow, Hanse, 10; Henn, ‘Was war die Hanse?’, 20. Pichierri, Die Hanse, 68.

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Middle Ages. Nevertheless, conflicts and competition between the different groups of towns (Wendish, Prussian, Livonian, Netherlandish) became increasingly regular from the late fourteenth century. The meetings of the Hanse were usually held annually in Lübeck during the second half of the fourteenth century and about once every three years in the fifteenth. Apart from these ‘general’ meetings, which were rarely attended by even all of the active members, gatherings of smaller groups of towns were organised more regularly. Lübeck generally acted as leader of the Hanse: it raised certain issues, proposed decisions and devised statutes. From 1418 Lübeck was officially acknowledged as head of the Hanse.59 The town had already been in charge of Hanseatic business between meetings during the fourteenth century. It sent out correspondence to other towns and negotiated with trading partners and with neighbouring lords. Decisions at the meetings were made unanimously, meaning that they were enacted when none of the town representatives present filed any complaints.60 Decisions and enactments were recorded in the Hanserecesse, the minutes of the general meetings, which were subsequently issued to all active members. It was expected that the statutes laid down in the Hanserecesse would be adopted by all members. In reality the towns decided themselves whether they would do so: they were not bound by collective responsibility. When a statute contradicted the law in a particular town, or when a particular town council did not wish to adopt a specific rule, it was simply ignored without major repercussions.61 Only when a town was openly hostile towards a decision was it verhanst, or expelled. Reval (Tallinn) Throughout the Middle Ages, the area of present-day Estonia and Latvia was known as Livonia (Alt-Livland). Besides the Estonians and Livonians, Latvians and other Baltic tribes also inhabited the region. Trading in the area were Danes, Swedes, Finns and Russians.62 The Livonian area was Christianised from Riga (founded by Bishop Albert I in 1201) with the help of the Order of the Sword Brothers (Fratres militae Christi, established by Albert in 1202) and other German crusaders.63 In 1218 the bishop requested King Waldemar II of Denmark’s help in subduing the Estonians, which Waldemar provided, having been promised by the pope that he could annex all he conquered from the heathens.64 Waldemar arrived in 59 60 61

62 63 64

Hoffmann, ‘Lübeck im Spätmittelalter’, 143–4. Hammel-Kiesow, Hanse, 73–4. Ibid. 72. See, for example, Danzig’s shipbuilding for the Dutch market against Hanseatic prohibitions in this chapter. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 19. Christiansen, The Northern Crusades, 77, 98, 123. Christiansen, Northern Crusades, 106; Johansen, Nordische Mission, 103.

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Map 3.4: Medieval Livonia (Alt-Livland).

the harbour of the trading settlement which would become Reval in 1219 and duly defeated the Estonians. In the following years he had trouble maintaining his power and, after his capture in 1223 and death in 1227, the Danes withdrew from Estonia, only to return again in 1238. In the meantime the Sword Brothers had founded a permanent town at Reval around 1230 with a community of German merchants and their families from Gotland.65 The Danish Crown ruled Estonia until 1346, when the land was sold to the Teutonic Order. The Order would continue to rule Livonia and Reval until 1561. Long before the conquerors from the west came, a trade settlement existed at the location of Reval, which was originally known by the OldSwedish name of Lindanyse or Lindana¯s. The settlement was situated beside an accessible bay in the Finnish Gulf which was sheltered by cliffs, islands and reefs, and at the crossroads of five trade routes. The area around Lindanyse was known as Revele, a name that was transferred to the town by the Danes and Germans. The Estonian name Tallinn (Taani Linn) means town or castle of the Danes.66 Although Reval and the duchy of Estonia belonged to the Danish Crown for over a century after 1238, they were essentially German. The king’s vassals were mainly Saxons, and the duchy was left to be ruled by the king’s Vogt (capitaneus, captain), who collected tithes and land taxes for him, whereas the king himself mainly refrained from interfering in the duchy’s 65 66

Johansen, Nordische Mission, 41–2. Kala, Lübeck Law and Tallinn, 20–2. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 30–1.

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business. The community of German merchants of Reval, which appeared as a civitas for the first time in the agreement of 1238 (granting Estonia to the Danish king), lived in the Unterstadt. The Oberstadt, on the other hand, consisted of a stronghold on the Domberg, a hill, with the residences of lord and nobles, and the cathedral church and living quarters of the bishop and his chapter. It was also inhabited by craftsmen and servants.67 The Unterstadt gained important privileges from the king during the thirteenth century. The first documented is that granted by King Eric Plogpenning in 1248 in which he confirmed Waldemar’s privileges to the town and granted it Lübeck law. The use of Lübeck law was confirmed and extended by King Christopher I in 1255 and 1257, and by Queen Dowager Margaret in 1273. Also, in 1257, a Latin copy of the Lübeck Town Law was produced for Reval, followed by a version in Low German in 1282.68 The town’s privileges were confirmed by the Grand Master of the Teutonic Order in 1347. Although he was the official ruler of Livonia, he was rarely involved in local affairs. In his stead, the Livonian Master acted as lord in the area, but was mostly represented by the Komtur or Hauskomtur in Reval. If the town community had any problems with the clergy, nobles or officials of the Order residing in the castle on the hill, these were referred to the Livonian Master. For all other legal matters within the town, the council remained the highest instance, but appeals could be directed to the Oberhof in Lübeck.69 Compared to Riga, Reval’s relations with the Teutonic Order were very good and the town prospered under the Order’s wings. The town profited from the support of the Knights on the international stage, but remained largely autonomous.70 It was governed by a council of (on average) between twenty-four and twenty-six councillors, including four or five burgomasters. Unlike Lübeck, half the council was in office for daily business, leaving the other half to take care of personal affairs, except when important cases were considered. From the mid-fifteenth century, the council became a permanent body of about fourteen councillors and four burgomasters.71 The town community had some influence on the decision-making process in the town, though just how much is unclear. The burghers were expected to be present at the three-yearly Echteding or Eddach meetings, and were involved when important decisions had to be made. Their influence decreased when the power of the council grew, but it never completely disappeared.72 67 68

69 70 71

72

Christiansen, Northern Crusades, 56 and 192. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 37. Von Bunge, Liv-, esth- und curländische Rechtsgeschichte, 159–60. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 47–50 and 60. See Chapter 6. Angermann, ‘Die Stellung der livländischen Städte’, 117. Von Bunge, Die Revaler Rathslinie, 22–3, 27–8 and 37–8; Johansen and Von zur Mühlen, Deutsch und Undeutsch, 61. Von Bunge, Geschichte des Gerichtswesens, 11. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 64.

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Reval and the Hanse The Livonian towns started to cooperate with regard to trade in the midfourteenth century, after Reval had been included in the principality of the Teutonic Order in Livonia. At the first general meeting of the Hanseatic League in 1356 the Livonian towns joined with the Swedish and Gotlandic towns to form the ‘Livonian Third’ within the Hanse. At that time the Livonians managed to gain important privileges for their trade in Flanders.73 In 1360–2 the first meeting of the Livonian Third took place, but the Livonian towns themselves also held their own meetings from about 1363.74 These Livonian meetings mainly involved Riga, Reval and Dorpat. Other, smaller towns were also occasionally represented, but only the three larger towns were present at the general Hanse meetings. Although the towns occasionally had differing interests when it came to trade, they usually held together when it came to defending their common interests in Flanders and Russia.75 In general, the Livonian towns were loyal members of the Hanse and profited from its privileges throughout northern Europe, and from its support in their trade with Russia. The only problems occurred when the Teutonic Order decided to impose blockades on trade to certain towns or areas or take other measures that damaged Reval’s trade.76 These blockades indicate that the interests of the Knights and those of Reval did not always coincide, although the Livonian branch of the Teutonic Order was not as active commercially as its Prussian counterpart. A good example of an issue of conflict between Reval and the Order was the status of Narva. The town was one of the Knights’ important strongholds, but Reval and Dorpat opposed its acquisition of privileges because they considered the town a competitor. Narva was, therefore, never allowed to become a member of the Hanse.77 On the whole, however, Reval managed to be a loyal member of the Hanse as well as a loyal subject of the Order. It profited from the relation with both to protect and further its own interests.78 Danzig (Gdan´sk) Danzig belonged to several different masters and was fought over repeatedly during the three centuries covered in this study. Until 1308 Danzig was part of the principality of Eastern Pomerania. From the late tenth century until the first quarter of the thirteenth century this principality was part of 73 74 75 76

77 78

Johansen and Von zur Mühlen, Deutsch und Undeutsch, 45. Johansen, ‘Die Bedeutung der Hanse für Livland’, 45. Misa¯ns, ‘Zusammenarbeit und Konkurrenz’, 274–9, 285. The Order imposed blockades on trade to Prussia during the war between the Teutonic Order and the Prussian towns from 1454 to 1466, and on trade to Riga in a war between Riga and the Order in the 1480s. Kreem, The Town and its Lord, 118–21. Ibid. 118. Vogelsang, ‘Reval und der Deutsche Orden’, 44–8.

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the duchy, and later kingdom, of Poland, though only formally in some periods.79 The princes of Pomerania regularly tried to free themselves from Poland, and Duke Swantopolk (Swie˛topełk) eventually succeeded around 1225–7.80 In 1294 a Polish duke succeeded to the principality: Przemysław II, who in 1295 also became king of Poland. After his murder in 1296, uncertainty regarding his succession in both Pomerania and Poland caused conflict involving various nobles, the kings of Bohemia, who ruled Pomerania and Poland from 1301 until 1306, and the Teutonic Order. After the murder of King Wenzel II of Bohemia and his son Wenzel III in 1306, a complicated struggle involving all parties followed.81 The Teutonic Order finally conquered Danzig in 1308 and the rest of the duchy in 1309. The Teutonic Order then incorporated Pomerania into its Prussian territory and ruled the area until 1454. In this year Danzig, the other Prussian towns and a large group of nobles rebelled against the Order with the help of the Polish King Kasimir to whom they had sworn fealty. A thirteen-year war followed, which lasted until 1466. From 1466 Prussia, apart from its eastern regions which remained in the Order’s power as a fief from the Polish king, was part of the Polish kingdom. Geographically, the location of Danzig by the mouth of the River Vistula, close to the sea but protected from it by a thirty-kilometre peninsula, was perfect. To the west of the town, hills offered protection, whereas fertile lands to the east and south-east were used for agriculture and cattle breeding. The town itself was not built directly by the Vistula because of the danger of floods. Instead, a castle with a surrounding settlement was constructed on the Mottlau, which joined the Vistula just north-east of Danzig, in the second half of the tenth century.82 It was first mentioned in the life of Saint Adalbert of Canaperius as ‘urbs Gyddanyzc’ in 997.83 Most princes of Eastern Pomerania resided in the castle and the urbs thus became a political centre. This settlement would later become the Altstadt. Before this time a Slavonic colony had already existed by the Mottlau.84 In the late twelfth century merchants from northern Germany appeared in Danzig and settled to the south of the Altstadt. It is very likely that these merchants were granted certain privileges when they settled in Danzig, most importantly the right to use their own laws and to establish a market. Soon the location of the settlement became impractical because the cogs of the thirteenth century could not reach the town. The settlement was therefore moved to the former site of the Slavonic colony by the Mottlau. This German settlement probably received town rights from Prince 79 80 81 82 83 84

Lingenberg, Oliva und Danzig, 267. Swantopolk called himself duke from 1227. Lingenberg, Oliva und Danzig, 400. Lingenberg, Oliva und Danzig, 413–20. Simson, Geschichte der Stadt Danzig, i, 1–3. Ibid. 11. ‘Vita St. Adalberti de Canaparius’, in Simson, Geschichte der Stadt Danzig, iii, no. 1. Lingenberg, Oliva und Danzig, 268–9.

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Map 3.5: The Prussian State.

(later Duke) Swantopolk around 1224.85 It would later be known as the Rechtsstadt. No written record has survived about the founding of this town. It is unclear, for example, whether the early settlement was granted Magdeburg or Lübeck law at its foundation. A bailiff (Schulze/Schultheißen), a feature of Magdeburg Town Law, appeared as a witness in the oldest document related to the Rechtsstadt, which dates from 1227. Lingenberg argued, however, that the Rechtsstadt and the German colony before 1224 used a form of Lübeck law that the colonists had brought from northern 85

The founding date of Danzig has been the subject of much discussion. See Lingenberg, Oliva und Danzig, 298–310. Benninghoven agrees with Lingenberg’s dating in his review of the book: Benninghoven, ‘Entstehung und Baugeschichte’, 33.

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Germany. In this period they did not yet use written laws nor had they an established government and court system.86 In 1263 Duke Swantopolk and the burghers from Danzig requested a copy of Lübeck law from the town council in Lübeck. A copy in Latin was prepared, with a dedication that stated that the manuscript was made after a request from Danzig. Whether this manuscript ever reached Danzig is doubtful, since the manuscript is not kept in Danzig and shows no signs that it was ever used there.87 In 1294–5 Duke Przemysław II, who was also king of Poland, granted Danzig the Magdeburg Town Law. This innovation was probably initiated by Przemysław in order to obtain a unified town law within his realm. Apart from Elbing, all the main towns in Eastern Pomerania and Poland were granted Magdeburg Town Law.88 When the Teutonic Order conquered Danzig in 1308 it consisted of the Rechtsstadt and the Altstadt. The Knights ordered parts of the Rechtsstadt to be destroyed to prevent it turning into a centre of resistance whilst the Order was occupied conquering the rest of Pomerania.89 The Order later allowed the town to be rebuilt, but it is unclear exactly when. The Order converted the castle into a convent from which the town and its surroundings would be ruled by the Komtur, the Order’s representative.90 The Rechtsstadt received a new charter in 1342 or 1343 and was granted Kulm Town Law in 1346.91 Officially, the Order had supreme control over government and the administration of law in the Rechtsstadt, but in fact the town was relatively autonomous. The Order supported the town in its trade and external relations. By the late fourteenth century Danzig had surpassed all other Prussian towns in importance. From the 1380s the council was elected by a select group consisting mainly of long-distance traders, without any influence from the Komtur. The Hauskomtur, the Komtor’s deputy, remained involved in the Schöffengericht, the court of the bailiff, but it was presided over by the Schultheißen, who was elected 86 87

88 89

90 91

Lingenberg, Oliva und Danzig, 337, 390. The manuscript is kept in Göttingen, at the University Library. Ebel, Lübisches Recht, 78–80. Ebel argued that it is possible that Danzig only requested the manuscript in order to be able to make an informed choice as to which town law it would use in the future. Lingenberg does not agree; he argues that it is more likely that the German colony already used an early form of Lübeck law, since Danzig had maintained relations with Lübeck from its founding. Lingenberg, Oliva und Danzig, 384–90. Ibid. 396. Benninghoven, ‘Entstehung und Baugeschichte’, 26–7, 36–7, 39. Lingenberg, Oliva und Danzig, 420–7. Ibid. 419–20, 430. Kulm Town Law is an amended version of the Magdeburg Town Law which was granted to all towns within the Prussian territory of the Teutonic Order. The town of Kulm functioned as the highest court of appeal within this territory until 1454–66, when it was moved to Königsberg. Elbing was the only town to be allowed Lübeck law. Ebel, ‘Kulmer Recht’, 9–16.

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by the council. From the early fifteenth century at the latest the town council was able to lay down its own by-laws without the consent of the Komtur.92 The Altstadt was granted town rights by the Order in 1377, but the Order remained lord and master over its lands. The Order also established a new town, the Jungstadt. The Knights fully controlled this town’s government and its trade. They had been involved in trade since the late thirteenth century, and had now established a base for this activity. The Jungstadt’s trade would become significant, but the town was no match for the Rechtsstadt. Only the latter was represented in the meetings of the Prussian towns and those of the Hanseatic League, and was even called maius oppidum Gdanczk when referred to by the other towns of Danzig.93 Other parts of Danzig were the Hakelwerk, which remained a colony of fishers until its incorporation into the Rechtsstadt in 1454, and the Neustadt, which consisted of land outside the town granted to the Rechtsstadt in the 1340s.94 From the late fourteenth century, the Teutonic Order increasingly favoured its own trade over that of the Rechtsstadt. Before then, the Grand Master had played a significant role in supporting the Prussian towns in their trade. Relations had soured after the Order had been defeated at Tannenberg in 1410 and fell deep into debt. The Knights started to levy increasingly higher taxes and imposed random restrictions on trade.95 This eventually resulted in the Prussian towns rebelling against the Order in 1454. As a result, the Rechtsstadt annexed the other Danzig towns in 1454 and 1455. Only the Altstadt was allowed to keep its council, which was incorporated into a general council.96 The now united town of Danzig obtained extensive privileges from the Polish king, including the right to levy its own taxes. In 1457 Danzig received the ‘Great Privilege’ which gave the town an even greater degree of autonomy and Reichsunmittelbarkeit, meaning that it was only answerable to the king. The highest maritime court of the kingdom was also established in Danzig.97 Relations with King Kasimir and his two successors until 1500 were good, although dealings with the other Prussian towns were less friendly. Because of its special rights within the kingdom, Danzig’s trade was blooming and would continue to do so for the next two centuries.98 92

93

94 95 96 97

98

Biskup, ‘Der Deutsche Orden und die Freiheiten’, 117–19. Czaja, ‘Preussische Hansestädte und der Deutsche Orden’, 63, 65. See also Chapter 4. Hirsch, Danzigs Handels- und Gewerbsgeschichte, 34–5. Simson, Geschichte der Stadt Danzig, i, 93, 96. Simson, Geschichte der Stadt Danzig, i, 49. Lingenberg, ‘Danzig’, 374. Cies´lak and Biernat, History of Gdan´sk, 61. Simson, Geschichte der Stadt Danzig i, 239–41. HUB VIII, no. 563, 15 May 1457. Reproduced in Curicken and Curicken, Der Stadt Dantzig, 153–6. See also Chapter 6. Simson, Geschichte der Stadt Danzig, i, 332.

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The five main Prussian towns, Thorn, Elbing, Kulm, Königsberg and Braunsberg, already participated in the hanses in Flanders, England, Norway and Russia in the thirteenth century. At that time, Danzig was still part of Eastern Pomerania and traded mainly with Lübeck to obtain goods from western Europe. In 1347 the so-called ‘Westfalian-Prussian Third’ within the Hanse was founded, which by then included Danzig, and in 1356 the Prussian towns joined the first general Hanseatic meeting in Bruges. At this time Thorn and Elbing still played the leading role, but Danzig began to dominate from the late fourteenth century.99 The Prussian towns were very active members of the Hanseatic League, but they did not always agree with its policies and sometimes declined to take part in its actions. Meetings of the Prussian towns were held regularly and were presided over by the Grand Master. The Teutonic Order played an important part in the decision-making process of these meetings. Initially, the interests of the Knights and the towns were very similar, and the Order was sometimes even considered a member of the League. Despite profiting from Hanseatic privileges, especially in Flanders, however, it tended not to abide by trading restrictions imposed by the League, nor did it normally attend the general Hanseatic meetings.100 The Order did play an important role as protector of the Hanse and initially supported the Prussian towns in their trade. When the Order started to concentrate increasingly on its own profits, however, complaints against it were voiced by the larger towns in the Prussian meetings. The interests of the Teutonic Order and the larger towns drifted further apart after the Knights’ defeat at Tannenberg in 1410. The Order started to ignore the towns’ privileges and sought only to advantage its own trade. On the other hand, the Grand Master was still acknowledged as helper and protector of the League by the other Hanseatic towns. The Prussian towns could therefore not count on support from the other towns in the struggle with their lord, which ended in 1454.101 The position of the Prussian towns within the Hanse was relatively independent. Initially, the Prussian and Wendish towns had similar interests; both functioned as transit-ports and traded identical types of goods with the same trading partners. At the same time the two groups of towns were competitors in the way in which this trade was conducted. The Prussian towns traded through the Sound, whereas Lübeck tried to obstruct this ommeland-trade. From the late fourteenth century Prussia became an important provider of much-needed grain and timber for the west, which

99 100

101

Biskup, ‘Der Deutsche Orden und die Freiheiten’, 121. Biskup and Labuda, Die Geschichte des Deutschen Ordens, 361; Arnold, ‘Die Hanse und Preussen’, 87. Biskup, ‘Der Deutsche Orden und die Freiheiten’, 125.

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was the basis of Danzig’s swift growth.102 The Dutch and English especially were seen as valuable partners by the Prussians, whereas the Wendish towns considered them competitors. They initiated Hanseatic statutes prohibiting shipbuilding for non-Hanseatics, for example, but the Prussian towns continued to build vessels for the Dutch market. Similarly, merchants from Danzig would trade with the English and Dutch in contravention of Hanseatic statutes.103 The opening-up of an extensive Polish hinterland, the granting of almost complete autonomy and the fusion of the different towns into one large Danzig with considerable tracts of land outside the town boundaries in 1454 resulted in Danzig becoming an economic power in the Baltic which would only grow stronger towards the end of the fifteenth century. It would eventually surpass Lübeck and the Wendish towns in the sixteenth century. In conclusion, one might say that Danzig gained its greatness mainly independently of the Hanse, even though it was considered one of the League’s most important members from the late fourteenth century. The five towns compared The five towns selected for this study were for a large part different as regards the way they were ruled, the power they exercised outside the town and the laws to which they were subject. They were, on the other hand, very similar with regard to their geographical situation. All five towns were located in areas very suitable for large ports: near accessible rivers or bays, at the crossroads of trading routes and surrounded by fertile lands that made up the necessary hinterland. Each of the five towns therefore grew to be an important centre of trade in its own area and also played a significant role in international commerce, although on different levels. Danzig, Reval and Aberdeen came to greatness as trading towns first and foremost on the basis of the produce from their respective hinterlands. An important reason for Aberdeen’s wealth was its inland trade.104 The town was the only large commercial centre in the north of Scotland and profited from this situation from a very early date. A deterioration in the quality of wool resulted in a slump in exports between about 1380 and 1440, but Aberdeen regained its position as Scotland’s second largest port in the second half of the fifteenth century as a result of salmon exports.105 102

103

104 105

Biskup, ‘Der Deutsche Orden und die Freiheiten’, 121–2. Biskup and Labuda, Geschichte des Deutschen Ordens, 358, 432. Cies´lak and Biernat, History of Gdan´sk, 57–8. The selling of ships outside the Hanse was prohibited according to Article 81 of the 1447 Hanserecesse (HR 2, III, no. 288); trade with persons outside the Hanse according to Article 14 of the 1434 Hanserecesse (HR 2, I, no. 321). Booton, ‘Inland trade: a study of Aberdeen’, 158. Ditchburn, ‘Cargoes and commodities’, 13–18; Ditchburn and Harper, ‘Aberdeen and the outside world’, 389.

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Aberdeen was the least active of the five towns in long-distance trade, although it was very dependent on international shipping. Danzig managed to profit greatly from Baltic grain being in heavy demand in some parts of western Europe, especially from the second half of the fifteenth century.106 This demand coincided with a significant increase in Danzig’s Polish hinterland as a result of the town’s incorporation in the Polish Kingdom in 1454. Before that time, Danzig had already been the largest trading town in the eastern Baltic area. When German merchants had settled in Danzig around 1170–80, the volume and reach of its overseas trade had been extended significantly and Duke Swantopolk had further promoted this trade in the first half of the thirteenth century.107 With support from the Teutonic Order in its trade and external relations, Danzig’s trade grew further in the second half of the fourteenth century. From the final years of that century the town was the largest economic power in Prussia, trading with most countries in northern and western Europe, as well as with the Iberian peninsula.108 Lübeck was Danzig’s most important trading partner throughout most of the Middle Ages, although its role declined as Danzig increasingly expanded its trade to the west.109 Whereas Lübeck’s trade diminished in the late fifteenth century, Danzig’s only increased further because of the grain supplies from its hinterland. A similar development can be seen in Reval, though on a smaller scale. Like Danzig, Reval mainly exported goods from its hinterland and, similarly, rye became an important factor in its continuing growth, although at a slightly later time than the Prussian towns and on a smaller scale. Although the town is well known for its trade with Russia, this was certainly not the only source of income. Throughout the Middle Ages, Lübeck remained the town’s main trading partner. Goods from the west were bought in Lübeck for transport east, and furs, leather, flax, tallow and other goods were brought back. A similar trade was conducted with Danzig, but the Livonian merchants also traded directly in the west at Bruges and London. For the salt trade to the Baltic, Dutch ships were used increasingly in the fifteenth century.110 Both Danzig and Reval considered the merchants from Holland and England as valuable trading partners, as opposed to Lübeck, which viewed them as competitors. 106

107

108 109

110

An important reason for a growth in trade to Holland from the Baltic was a decrease in available grain from France and the southern Netherlands, mainly because of political developments from 1476 onwards. Van Tielhof, De Hollandse graanhandel, 12. Lingenberg, Oliva und Danzig, 334. LUB I, no. 130 (between 1220 and 1224?); no. 132 (1240?); no. 133 (30 Jan 1248); no. 202 (31 Jul 1253); no. 272 (23 Apr 1263). Lingenberg, Oliva und Danzig, 412. Kalisch, ‘Vorwort’, 7. Lübeck remained an important source of products for Danzig’s import trade, sometimes providing more than 90 per cent of Danzig’s cloth imports. This decreased to less than 50 per cent in the late fifteenth century as a result of Dutch expansion in the Baltic. Stark, Lübeck und Danzig, 83. Angermann, ‘Stellung der livländischen Städte’, 116. Angermann, ‘Die Bedeutung Livlands für die Hanse’, 109. Johansen and Von zur Mühlen, Deutsch und Undeutsch, 73.

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Lübeck was the main entrepot in the Baltic region and one of the largest trading towns in Europe for the period under scrutiny. Soon after 1159 Lübeck merchants were trading on Gotland and with the domination of Gotland merchants in the Baltic slowly receding, from the 1180s German merchants could be found trading in the east themselves.111 Another region of interest for twelfth-century merchants from Lübeck was Scania, because of the herring trade. The Lübeck merchants would maintain their position as main players at the herring markets in Falsterbo and Skanör until these lost their significance in the fifteenth century.112 London was another port frequented by German merchants. They exported, in the main, cloth. Lübeck’s main trading partner, finally, was Bruges. Only towards the end of the fifteenth century did Lübeck’s power start to diminish somewhat when other trading powers – the Dutch and the town of Danzig – started to prevail in Baltic trade.113 Lübeck’s main activity was long-distance trade and it gained its power first and foremost by functioning as a transhipment point for trade from all over Europe. When merchants started to bypass Lübeck in the late fifteenth and sixteenth centuries, the town lost much of its greatness. Long-distance trade was also the main pursuit of the town of Kampen. Goods were shipped to and from Cologne and the Rhineland, and Kampen ships could be found transporting merchandise all over northern and north-western Europe. For example, the ommelandvaart brought Kampen merchants to Scania for the herring trade from 1250 at the latest. The herring was brought home or transported to other ports along the North Sea and Baltic coasts all through the Middle Ages. Kampen had also traded in Flanders since the late thirteenth century and ships from the town were often chartered in Flanders by foreign merchants to transport goods all over Europe.114 Trade existed with Holland as well, but in the second half of the fifteenth century relations soured because of the similar role the towns played in Baltic and European trade.115 Competition from Holland towns in the transportation of goods resulted in Kampen’s trade slowly deteriorating from the late fifteenth century. Aberdeen’s growth was due to a few factors. Its strategic position as the only large town within an extensive area has already been mentioned. It is likely that the town’s trade was already furthered by the king and queen of Scotland in the late eleventh century. It also received some important privileges from successive kings in the twelfth to fourteenth centuries. During the Wars of Independence the town moreover became

111 112 113 114 115

Hoffmann, ‘Lübeck im Spätmittelalter’, 101–2. Jahnke, Das Silber des Meeres, 274–5. Hoffmann, ‘Lübeck im Spätmittelalter’, 215–16. Meilink, Nederlandsche Hanzesteden, 197, 267. The three main characteristics of this role were fishing, freighting and broking. Petri, ‘Die Stellung der Südersee- und IJsselstädte’, 49.

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an important port for the Scottish resistance and Robert the Bruce.116 The slump in Aberdeen’s trade in the late fourteenth and early fifteenth centuries was due to a lack of available merchandise of sufficient quality.117 Combined with a location on northern Europe’s periphery and the lack of a strong central lord to support the town on the northern European stage, Aberdeen would never become an international trading superpower. The reason for Lübeck’s greatness was, besides its central location, the support of several strong territorial lords in the early stages of its history. Henry the Lion promoted the town’s international trade, Emperor Frederik I provided the town with some valuable privileges, the Danish kings favoured Lübeck’s trade in the Baltic and granted important privileges on Scania and Emperor Frederik II, finally, granted the town complete autonomy when it had already gained an important position in European trade and a strong political position within its surrounding area. Kampen’s growth was due to its strategic position in trade with the Rhineland. The town also managed to profit from the 1251 ommelandvaart privileges from the Danish king and became an important provider of transportation of merchandise. Unlike Lübeck in its early history, Kampen did not have the support of a strong territorial lord in its international trade. On the contrary, it became relatively autonomous from an early stage, as did the other towns in this area. Because of its location off the main sea routes, Kampen did not grow to have the same significance as Lübeck, but it was nevertheless one of the largest trading towns in the Netherlands. Although trade was certainly promoted by some of the Eastern Pomeranian lords, Danzig remained a regional centre of commerce during the thirteenth century, being mostly dependent on Lübeck for its supply of goods from western Europe. As the political centre of Eastern Pomerania, the town was not as autonomous as some other towns in the area, but the community of German merchants was allowed to use its own laws. When the town became part of the Prussian territory of the Teutonic Order in 1308, its international trade grew and was actively supported by the Knights. Having gained sufficient strength in the second half of the fourteenth century, Danzig became increasingly more independent. Its real strength surfaced when the town was incorporated into the Polish Kingdom in 1454, bringing autonomy, a united town, large tracts of land and an enormous hinterland. Under Danish rule Reval also became a regional centre of trade. Like Danzig, it lacked Lübeck’s strategic position, and it was therefore also largely dependent on this entrepot for merchandise from western Europe. Reval did, however, gain greater autonomy than Danzig in the thirteenth century and the town’s privileges remained in effect under the Teutonic 116 117

Ditchburn and Harper, ‘Aberdeen and the outside world’, 386. Ditchburn and Macdonald, ‘Medieval Scotland’, 113. Ditchburn, ‘Merchants, pedlars and pirates’, 41.

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Order. As in Danzig in the fourteenth century, the Knights furthered Reval’s international trade, but the town had fewer problems with the Order in the fifteenth century. In Livonia the Knights mainly directed their attention to Riga, leaving Reval to enjoy greater autonomy. Medieval towns were, by definition, relatively autonomous. They were given special privileges from their respective territorial lords which separated them from the surrounding countryside. These privileges often included market rights, the right to use a town law and, mostly at a later time, statutory rights. Town inhabitants were often represented by a council and although territorial lords initially exercised their influence on town government through officials, this influence almost always decreased when the town community or, more commonly, the council became stronger. In Lübeck, this external influence disappeared almost entirely when the town was granted Reichsfreiheit in 1226. The town community had already received statutory rights in 1188, but by the thirteenth century the council acted mostly independently from this community as the legislative and executive body. The statutory rights allowed the council to create its own town law at a very early date. In the twelfth and thirteenth centuries this town law was widely disseminated when it was granted to many of the German towns that had started to appear all along the southern Baltic coast. Some received manuscript copies of the Lübeck Town Law from the Lübeck council, and this body was often asked for legal advice. Lübeck also came to function as a court of appeal for the burghers of all the towns with Lübeck law. Besides its great influence in northern European trade, the town thus also had a great impact on the legal developments in many Baltic towns. Reval was one of the towns that was granted Lübeck law. Although Reval was dependent on Lübeck as regards the contents of its laws, the town was completely autonomous with respect to the execution of this law from the mid-fifteenth century. The German merchants in Danzig probably made use of a form of Lübeck law in the late twelfth and thirteenth centuries, but this law was no longer in use from the late thirteenth century, when Duke Przemysław granted the town Magdeburg law. In 1346 the Teutonic Order replaced this with Kulm law. Only in the second half of the fourteenth century did Danzig gain sufficient rights to ensure an autonomy similar to that already enjoyed by Lübeck and Reval at a much earlier date. Statutory rights had been received by the start of the fifteenth century. From the late fourteenth or early fifteenth century, a maritime court for the whole of Prussia was situated in Danzig, which meant that the town council could exercise an important influence on developments in this field in a more extensive area. Danzig’s privileges were confirmed and extended by the Polish king in 1456, resulting in Reichsunmittelbarkeit. Like Danzig, Kampen gained the bulk of its autonomy in the fourteenth century. This was the result of political unrest in the Utrecht diocese in the late thirteenth and early fourteenth centuries. The town’s privileges were

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extended at this time, including the highest jurisdiction in 1309 and the exclusion of the bishop’s official from town government by about 1300. It is likely that the town had statutory rights in the fourteenth century, as the oldest by-law is dated 1313. Contrary to Lübeck’s law, this town law remained restricted to Kampen and did not affect legal developments elsewhere, nor was it influenced in any significant way by other laws. Lübeck, Reval and Danzig were all members of the Hanse, as was Kampen when it suited the town commercially. This means that all four towns regularly partook in the Hanseatic meetings at which communal strategies were discussed and general decisions made. Lübeck had a large influence on these meetings, but this did not signify that the other three towns agreed with every action or abided by each decision. All four towns first and foremost acted out of self-interest. Since Lübeck was head of the Hanse, this self-interest coincided with what it considered Hanseatic interest, but the self-interest of the other three towns sometimes opposed it. The varying interests in the Hanse become very clear when we consider the Hanseatic boycott of Scottish trade from 1412 to 1415 and 1419 to 1436. Despite its lengthy duration, it did not bother trade with Scotland greatly, because three important members, Hamburg, Stralsund and Danzig, did not abide by it. In the fifteenth century the Bruges staple was very important for Aberdeen as a market for its wool, and the town was therefore for a large part dependent on the Hanse, or at least on some of its members. This did not, however, influence Aberdeen’s government or law in any way. Like the other four towns, Aberdeen received some important privileges which secured a certain amount of independence from central government. However, as opposed to the other four towns, Aberdeen was part of the legal structure of the Scottish realm and subject to a unified burgh law. Scottish law in general was for a large part centralised. In addition to the Laws of the Four Burghs, the towns were subject to decisions of parliament, and there were several national higher courts: the Court of the Four Burghs, parliament, the Chamberlain’s Eyre and the King’s Council which eventually came to replace parliament in its judicial functions. Because of a lack of an effective central bureaucracy, not all centrally made decisions were followed, however, and the towns did have some statutory rights. The town bailies were royal officials originally, and were considered to dispense the king’s justice, but they were elected by the council. The sheriff only remained in charge of criminal justice, at least until 1445. Like the other four towns, Aberdeen was thus to some extent independent, but overall it did have a much less legally autonomous status.

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Written Law: Urban Collections of Sea Law By studying the development and dissemination of the different law compilations and their manuscript copies in the first chapter, it was established that no single sea law compilation was available throughout northern Europe at any time during the Middle Ages. In this chapter, this will be investigated further by considering the manuscript collections of each of the five towns in order to determine which sea laws were at the courts’ disposal and from what date. A comparison of the urban collections will allow us to establish whether there was any communality in these and, if not, to explain why they were different. Aberdeen (Scotland) The Scottish translations of the Rôles d’Oléron None of the manuscripts containing any of the Scottish translations of the Rôles d’Oléron can be linked to Aberdeen directly.1 The relatively unified character of Scottish burghal law suggests, however, that those laws available in manuscript form in one burgh would have been known elsewhere too, either in writing or orally, and there is no reason why a collection of Scottish laws should not have been available to the Aberdeen government and courts. A description of the extant manuscripts from the whole of Scotland and the texts they contain is therefore relevant, especially because these text have received little attention from scholars up until now.2 Nine manuscripts are presently known to include a translation of the Rôles d’Oléron. Six of these are kept in the National Library of Scotland.3 1

2

3

Some of the manuscripts cannot be placed at all as regards the Middle Ages, but it is unlikely that any of the manuscripts now extant is from Aberdeen. The copies from the late fifteenth and sixteenth centuries were mostly written for private use. They are not, for example, mentioned in the Introductory Survey of the Sources and Literature of Scots Law. Only Angelo Forte has named some of the manuscripts. Forte, ‘ “Kenning be kenning” ’, 57. Gero Dolezalek listed the sea laws as part of the contents of the six NLS manuscripts, but not of the other three, in his recent Census of manuscripts of legal literature in Scotland, 47, 52, 69, 70. NLS, Bute Ms. 21246; Adv. Ms. 25.4.15 (formerly Adv. Libr. W.4.ult.); Adv. Ms. 25.5.7 (formerly Adv. Libr. A.1.32); Adv. Ms. 25.5.6 (formerly Adv. Libr. A.1.28); Adv. Ms. 25.5.9 ‘Bannatyne’ (formerly Adv. Libr. A.7.25); Adv. Ms. 7.1.9 ‘Malcolm’ (formerly Adv. Libr. A.3.22). Forte, ‘ “Kenning be kenning” ’, 61, mentions another manuscript (Adv. Ms. 24.6.3

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One each can be found in the Cambridge University Library, the Lambeth Palace Library and the Harleian Collection of the British Library (formerly British Museum).4 The oldest manuscript that survives is the Bute Manuscript, which is from the second half of the fourteenth century. The title ‘Of law and custome of schyppys’ is the last in the list of contents, which also contains the Regiam Majestatem, the Leges Quatuor Burgorum and other legal texts.5 On folio 171r this title is followed by four articles of the Custuma Portuum, before continuing, on folio 172r, with the twenty-four articles of the Rôles d’Oléron, in Scots, headed ‘leges navium’.6 The first article is entitled ‘Of lawis of scyppis’. The articles are unnumbered, but all are headed by a short title in red and the initial letter drawn in red or blue ink. The text finishes on folio 174v. Although the manuscript includes the whole of the Rôles d’Oléron as drawn up in the Liber Horn, the sequence of the regulations is quite different (see Table 4.1). The second manuscript (Adv. Ms. 25.4.15) is from the third quarter of the fifteenth century, possibly from 1455. It contains the Regiam Majestatem, Quoniam Attachiamenta, statutes, burgh laws and some smaller legal texts, most of which are in Scots.7 ‘The lawys of schippis’ can be found on folios 159v–163r. The copy is headed ‘Her folowys the lawys of schippis’ and includes twenty articles, unnumbered and untitled. As a result the individual regulations are not easily recognisable, which makes the text impractical to use in practice. The twenty articles correspond to the first twenty articles of the Rôles d’Oléron; only Articles 14 and 15 have been switched around. The third manuscript, Adv. Ms. 25.5.7, is from the 1470s. It contains the Regiam Majestatem, statutes, baron court laws, burgh and guild laws and other legal texts which are all in Scots. The ship laws originally consisted of twenty-one articles, but because of some missing folios, the first three articles are lost, as well as part of the fourth. The remaining articles were written on folios 132r–134v. The text includes most of the Rôles in the correct sequence, but Articles 14 and 15 have again been switched, and Articles 12, 13 and 19 have been omitted. The regulations are numbered and titled, but not always correctly. The number viii is used twice, so that

4

5

6 7

(3)), but this actually contains the original of Balfour’s Practicks, which includes some articles of the Rôles d’Oléron, see below. Cambridge University Libary, Ms. Ee. 4. 21; Lambeth Palace Library, Ms. no. 167; British Library, Harleian Ms. 4700. The Regiam Majestatem is largely compiled of Anglo-Norman material copied from Glanvill’s De Legibus et Consuetudinibus Angliae (late twelfth century), but also includes some later Romano-Canonical material. Recent research has dated the compilation to shortly after 1318. Sellar, ‘A historical perspective’, 39. For Custuma Portuum, see below. The Quoniam Attachiamenta is a ‘systematic handbook of procedure in the Scottish feudal courts, written by an experienced practitioner’. It was written in the latter part of the fourteenth century. Cooper, ‘The Scoto-Norman Law’, 7. Edition in Quoniam Attachiamenta, ed. T. David Fergus (Stair Society 1996).

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Table 4.1: The Scottish translations of the Rôles d’Oléron. Liber Horn early 14th c.

Bute Ms. second half of 14th c.

Adv 25.4.15 1455

Adv 25.5.7 1470s

Adv 25.5.6/9 1488/1520

Adv 7.1.9 1560s

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

14 15 16 17 18 19 20 21 22 23 1 2 3 10 24 11 4 5 6 7 8 12 13 9

1 2 3 4 5 6 7 8 9 10 11 12 13 15 14 16 17 18 19 20 – – – –

[1] [2] [3] 4 (partly) 5 6 7 8 9 10 11 – – 13 12 14 15 16 – 17 18 19 20 21

14 / 25 (1a) 15 / 26 (2a) 16 / 27 (3a) 17 / 28 (4a) 18 / 29 (5a) 19 / 30 (6a) 20 / 31 (7a) 21 / 32 (8a) 22 / 33 (9a) 23 / 34 (10a) 1 / 35 (11a) 2 3 10 / 37 (13a) 24 / 36 (12a) 11 / 38 (14a) 4 / 39 (15a) 5 / 40 (16a) 6 7 / 41 (17a) 8 / 42 (18a) 12 / 45 (21a) 13 / 43 (19a) 9 / 44 (20a)

14 / 25 15 / 26 16 / 27 17 / 28 18 / 29 19 / 30 20 / 31 21 22 23 1 / 32 2 3 10 / 33 24 11 / 34 4 / 35 5 / 36 6 7 8 / 37 12 / 39 13 / 38 9

the last article is numbered xx instead of xxi; the title of vi is that of Article 7 of the Rôles (it is used again in vii), and that of x, which corresponds to Article 11 of the Rôles is that of Article 12, which article itself has been omitted. The fourth manuscript, Adv. Ms. 25.5.6, was (mostly) written by James Monynet in 1488. It contains the Regiam Majestatem, as well as statutes, burgh and guild laws, Quoniam Attachiamenta, forest laws and some smaller texts, of which some are in Scots. The title ‘The lawis ande the Custimys of the schippis’ can be found on folio 205r, followed by the four articles of the Custuma Portuum. The translation of the Rôles d’Oléron on folio 206v is headed ‘Off lawis of schippis & schipmen’. From folio 207v to 210r the words ‘The schip’ have been written on the top left pages and ‘Lawis’ on the top right pages. The final article is on folio 216v. This copy includes forty-five articles which are unnumbered, but most of which are titled. The first twenty-four articles are exactly the same as those in Bute Ms., whereas

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the other twenty-one correspond with the copy in Adv. Ms. 25.5.7, including the articles lost at the beginning. Only Article 22 from the Rôles was initially omitted in the second copy, being then added at the end. The manuscript thus contains a double copy of the Rôles d’Oléron in Scots, with the exception of Articles 12, 13 and 19 which are included only once. Lambeth Palace Library Ms. 167 has recently been dated to the late fifteenth century by the Scottish Parliament project, instead of to the sixteenth century as previously suggested in the nineteenth-century catalogue. This is based on the handwriting and the fact that the latest material is dated to 1469.8 The fact that the manuscript contains a single rather than a double copy of the Rôles d’Oléron also suggests that it is from the fifteenth rather than the sixteenth century, as all manuscripts from Adv. Ms. 25.5.6 onwards include double copies. Ms. 167 contains Regiam Majestatem, Leges Quatuor Burgorum, acts of parliament and other legal texts, mostly in Latin. The ship laws are untitled and appear hidden between parts of the Leges Forestarum on folios 214r–217r. There are twenty-four articles that are not numbered or individually titled. Again, this would have made the text difficult to use in practice. The articles are in the same sequence as the articles in Bute Ms. There is no decoration at all. The final manuscript from the fifteenth century is British Library Harley Ms. 4700, which is probably from the later years of that century.9 It contains the Regiam Majestatem, Leges Quatuor Burgorum and other legal texts, most of which are in Latin. The ship laws are again preceded by the Custuma Portuum, headed ‘The lawis and the custummys of the schippis’. The laws themselves start on folio 145r and are titled ‘Of lawis of schippis and schipmen’. The text consists of forty-five articles and finishes on folio 151v. The sequence is the same as that in Adv. Ms. 25.5.6. The titles and first words of each article are in red and the text is rubricated. The remaining three manuscripts are from the sixteenth century. The first, Adv. Ms. 25.5.9, contains an exact copy of the forty-five articles included in Adv. Ms. 25.5.6. Indeed, the whole manuscript is possibly a copy of this collection, or is at least closely related to it. Most texts were copied by John Bannatyne in 1520. The ‘lawis of schippis & schipmen’ can be found on folios 144r–150v, preceded by the ‘The lawis & the custumez of schippis’ on folios 143v–144r. The titles at the top of the pages are different from those in 25.5.6. ‘Of lawis of (schippis &) schipmen & the Jugement of the lawis of the sey’ is written on folios 144v–145r, 147v–148r and 148v–149r; ‘Of the lawis of schippis’ on 145v–146r and 146v–147r; and ‘The Lawis of the sey’ on 149v–150r and 150v. Cambridge University Library Ms. Ee.4.21 has been dated to the mid8

9

‘Notes on the sources for the Parliaments of Scotland’, accessed on 30 August 2011. The date has been adopted by the National Church Institutions Database of Manuscripts and Archives. Catalogue of the Harleian Manuscripts.

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sixteenth century in the nineteenth-century catalogue.10 It has an owner’s mark by Robert Reid, who was bishop of Orkney around 1550. The manuscript includes Regiam Majestatem, statutes, Leges Quatuar Burgorum and other legal texts, mostly in Latin. The copy of the ship laws is contained on folios 306v–312v and titled ‘Of lawis of schippis and schipmen’. The articles are numbered incorrectly: the numbering includes the preceding four articles of the Custuma Portuum (headed ‘The lawis and custumis of schippis’) and only encompasses titled articles to a total of thirty-three. In fact, the copy consists of forty-five articles in the same sequence as Adv. Ms. 25.5.6. Finally, Adv. Ms. 7.1.9 was probably written in the 1560s. It contains the Regiam Majestatem, burgh laws, statutes, Quoniam Attachiamenta, forest laws and some smaller legal texts, again mostly in Scots. The title ‘Off lawis of schippis and schipmen’ can be found on folio 100v, again preceded by the articles from the Custuma Portuum on folios 100r–v. This copy of the Rôles contains thirty-nine articles in the same sequence as Adv. Mss. 25.5.6 and 25.5.9, but six articles have been omitted. These are (compared to the other two) Articles 32, 33, 34, 36, 41 and 44. This means that nine of the laws are presented only once, whereas the remainder are included twice. The articles have remained unnumbered but most of them are titled. The final article can be found on folio 105r. Scottish sea laws The Leges Quatuor Burgorum only include one regulation concerning the administration of maritime law. In Article 25, it is stipulated that the bailies were to judge any cases in which foreign skippers and merchants were involved.11 In practice this was not always adhered to, as will be discussed in Chapter 6. The Custuma Portuum or ‘Of the custome of schippis’ concerned customs in the sense of duty paid for imported goods, and not customary law as is suggested by the title ‘Of the law and the custome of schippis’ which is included in some of the manuscripts described above.12 Most of the copies of the ship laws were preceded by the Custuma Portuum, which is because both concern sea shipping. The Acts of Parliament include regulations regarding trade, such as that allowing only ‘personnis bot hable and of gud fame’ to transport merchandise by sea, or that ordering the building of ‘schippis’ and ‘buschis’ of at least twenty tons on which the idle men of the burghs were forced to hire for wages on pain of banishment.13 Whether these men would have provided good and reliable service as crew members is, of course, questionable. Another rule laid down by parliament under 10 11

12 13

Catalogue of the Manuscripts preserved in the Library of the University of Cambridge, ii, 131–2. APS, i, 337, no. xxv De contencione orta inter nautas extraneos/Of stryff muffyt betuix schipmen in burgh. APS, i, 671. RPS, 1458/3/11; A1493/5/21, accessed on 9 March 2009.

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King James I in 1430 concerned the law of wreck. In principle, shipwrecked goods from foreign ships would fall to the king, but if a vessel hailed from a country where a different law was applied, this foreign law would be adhered to.14 This law was perhaps introduced to ensure merchants would continue to frequent the Scottish ports, as regulations elsewhere, for example in England, allowed for (a portion of) salvaged goods to be returned to their original owners.15 In 1467 parliament under King James III released several rules regarding shipping and trade. Most important is that which stipulated that a charter party should be drawn up between skippers and merchants for every journey.16 The skipper was also ordered to recruit an adequate number of sailors, helmsmen and carpenters. Any damage to the cargo resulting from a lack of crew would have to be reimbursed to the merchants. No freighting on the ship’s decks, especially the orlop (the lower deck), was allowed unless goods were taken free of charge. Such goods would not be compensated in case of a jettison.17 In case of any disagreements on board, the law of the next port of call would have to be abided by.18 That these rules were not observed satisfactorily is indicated by an act of parliament of October 1487, which was issued after some burgh representatives had requested the statutes to be implemented.19 Other sea laws Apart from the translations of the Rôles d’Oléron, there appear to have been no copies of any of the other northern European sea laws in Scotland. There is no evidence that the Dutch Ordinancie and the Waterrecht were available in the Middle Ages. This may seem surprising given the importance of trade relations with the Low Countries, but it fits in with the situation in England and France, where these laws did not make an impact in the Middle Ages either. Some clues about the reception of the Wisby Sea Law can, however, be obtained from sixteenth- and seventeenth-century Scottish writers. As in England, an extensive literature about Scottish law developed from the sixteenth century. Central court decrees were collected in so-called Practicks, which are in form similar to the English law reports.20 Abridgements of 14 15 16

17

18 19 20

RPS, 1430/19, accessed on 9 March 2009. Niitemaa, Strandrecht in Nordeuropa, 58–9. This is different fom practice in England, where charter parties were not mandatory, though signatories expected them to be recognised as legal documents in the fourteenth and fifteenth centuries. Ward, World of the Medieval Shipmaster, 80. Freighting on the orlop was prohibited entirely by the Hanse in 1447: HR 2, III, no. 288, § 82. Such regulations may have become necessary because a new type of ship with an orlop had appeared shortly before. This suggestion was kindly provided by Dr Carsten Jahnke. RPS, 1467/1/14, accessed on 9 March 2009. RPS, 1487/10/19, accessed on 9 March 2009. They are called ‘embryo law reports’ in Sources and Literature of Scots Law, 27.

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laws, which included abstracts from all possible legal sources, were also produced. Three such works also included sea laws: Balfour’s Practicks, written in the 1560s and 70s, Welwod’s Abridgement of All Sea-lawes from 1613 and Bisset’s Rolment of Courtis, which he finished in 1626. Sir James Balfour of Pittendreich (d. 1583) collected acts of parliament, regulations from the Regiam Majestatem and other old laws, as well as central court decisions reaching back to 1469.21 Thirty pages out of a total of 684 in the 1754 printed edition were dedicated to maritime law.22 This part was entitled ‘The sea lawis collectit furth of the actis of parliament, the practiques, the lawis of Oleron, and the lawis of Wisbie, and the constitutionis of Francois King of France, annis 1543, 1557’. Most of the twenty-four regulations from the Rôles d’Oléron were reproduced in a more extended form than those in the Scottish manuscripts. A few articles have been omitted, while others were added which cannot be found in the original Rôles and were probably taken from later, extended versions, presumably from England as no extended versions are extant from Scotland. The rules are referred to as ‘Ship lawis’. Balfour also included a number of articles which he attributes to ‘Wisbie’, but only some of these can be found in the sixteenth-century versions of the Wisby or Gotland Sea Law. In 1613 William Welwod wrote an extension to his 1590 work The Sea-law of Scotland, called An Abridgement of All Sea-Lawes.23 In addition to citing extracts of ‘all’ extant sea laws, he wrote a short history of maritime law. According to this history, the oldest laws in the Atlantic were ‘devised by them of the Iland of Oleron’. These were translated into Dutch by ‘them of Wisby, for the sea use of the Dutch coast’.24 Welwod did not include the Scottish translations of the Rôles d’Oléron. In his introduction, he wrote that contracts normally bore a clause of ruling by law of Oléron, which is ‘a forraine law, as all the other lawes of the Admirall court commonly are’.25 In the abstracts of the laws, the Rôles are often referred to, but ‘Wisbie’ only once.26 The law in question again does not originate from the Wisby Sea Law, but perhaps derives from the same law that Balfour used. Habakkuk Bisset, in his Rolment of Courtis which was completed in 1626, reproduced maritime regulations in the ‘fourt buik Of admirall and sea lawes’.27 Bisset based his introductory history on Welwod’s account and wrote that in the Atlantic area (including the Scottish seas) the laws of Oléron or Wisby were observed and that ‘The scottis sea lawes followes 21 22 23

24 25 26 27

Ibid. 32. The Practicks of Sir James Balfour, ed. McNeill, ii, 614–44. This is a reprint of the 1754 edition. Welwod, Abridgement. The 1590 book was written in Scots, whereas the Abridgement was in English. Welwod was professor of civil law at St Andrews. Acta Admirallatus, ed. Wade, xviii, n. 1. Welwod, Abridgement, 3. Ibid. [ii]. Ibid. 49. Habakkuk Bisset’s Rolment of Courtis, ed. Hamilton-Grierson, ii, 199–266.

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the samin allanerlie’ (solely/exclusively).28 The laws that he published as ‘judgements and decreittis as war maid and statute for materis of the sea, of schipis, maisteris, maryneris, merchandis and of all their doingis and practices etc.’ are articles from the edition of the Rôles d’Oléron as they were printed in England by Petyt in 1536 in his Rutter of the Sea.29 It was followed by some additions which were called ‘the auld lawes of Visbie’. In this case, five of the articles do derive from the Wisby Sea Law, but the remainder could not be identified.30 From these three works, it can be gathered that the Rôles d’Oléron, also known as the ‘Ship lawis’, were the best known and best copied of the foreign maritime laws in Scotland, even in the sixteenth and seventeenth centuries. The Wisby Sea Law was known, but all three of the authors include regulations which they falsely attribute to this law. It is remarkable that a Scots translation from the early seventeenth century of some of these regulations existed at all, since the earliest French translation (in print) was published by Cleirac in 1647 whereas the first printed English translation appeared in 1704. It is possible that an earlier translation existed.31 Earlier knowledge of these laws may have been based on the Dutch editions. Nonetheless, there is no evidence that any other foreign sea law aside from the Rôles d’Oléron was available or used in Scotland before the sixteenth century. Kampen The Boeck van Rechte and the Gulden Boeck In Kampen, two collections of town laws survive: the Boeck van Rechte, which was started in the late fourteenth century, and the Gulden Boeck, begun in the first half of the fifteenth century.32 Since the oldest dated regulation in the Boeck van Rechte is from 1313, an older collection of town laws probably preceded it.33 This is also suggested by the small introduction on folio 1r of the manuscript: Here begins the book of law of the town of Kampen, in God’s name amen. We, the alderman and council of the town of Kampen, have made this book with consent and support of our community, in which shall be written all laws, statutes and regulations which have been 28 29

30 31 32

33

Ibid. 202. Ibid. 241. Thomas Petyt, A Rutter of the Sea (London 1536). This is the first edition of a translation of the Rôles into English. The articles in Bisset can be found on pages 241–9 and 256–8. Bisset’s Rolment of Courtis, 250–6. Wisby Stadslag och Sjörätt, ed. Schlyter, xci, xcvi, c. GAK, OA, no. 5, Dat Boeck van Rechte dier stat van Campen 1313–1416. GAK, OA, no. 6, Dat gulden Boeck 1329–1614. Kossmann-Putto, Schepenacten, 11. Overijsselsche Stad-, Dijk- en Markeregten, vii.

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found or will be found in the future, which our burghers and town shall be held to abide by in their right for all eternity, in good faith.34 The Boeck van Rechte includes several maritime regulations gathered under the title ‘Van schippers ende schepen’ (‘Of skippers and ships’) on folio 17r, followed by nine articles on sea law, four on other subjects and another eight relating to maritime matters. Four separate regulations were entered further on in the manuscript. Of these, the oldest dated article (Article 2) is from 1348, but a majority of the regulations is undated, so some of the articles may be older. Article 22, for instance, which directly follows the sea laws, is from 1338. The other two dated articles concerning maritime law in this section (Articles 20 and 21) were drawn up in 1352. The laws in the Boeck van Rechte as a whole are numbered from the beginning of the manuscript, but the numbering restarts at the section on sea law even though the 119 articles that follow deal with other subjects for the most part. The compiler may initially have planned to rearrange the laws systematically, but he appears to have given up on this plan after grouping together some of the other sea laws. There are two more regulations concerning maritime law further on in this section, namely Articles 98 and 100, which are both dated 1372. The first 118 of the 119 articles appear to have been compiled together, as two of the final articles date to 1351 and 1352 while others are younger. A terminus post quem for compilation is provided by the youngest dated law, which was drawn up in 1391. The collection was therefore compiled in the last decade of the fourteenth century. Article 119 is dated 1396 and was written in a different hand. A few regulations were added at a later date, as these have remained unnumbered and untitled. Two of these, dated 1407 and 1409 on folios 39r and 42r respectively, concern maritime law. The last dated regulation was drawn up in 1416. Most of the regulations concerning sea law in the Boeck van Rechte are repeated in the Gulden Boeck, although they have sometimes been altered or divided up. To these were added some articles that do not feature in the Boeck van Rechte. Some of these were drawn up before 1416. They were probably copied from one of the other registers kept by the town council.35 None of the articles regarding sea law is dated after 1409, with the exception of the last one, which was added by another scribe in the year ‘l’, probably 1450.36 Also, an addition to the article on jettison (Article 5) was 34

35

36

‘Hijr beghint dat boeck van rechte dier stat van Campen, in Goeds namen amen. Wi scepen ende raet der stat van Campen hebben dit boeck ghemaket bi consente ende thodoene onser ghemeente, daer men scrijven sal al recht, statute ende vorworde de men ghevonden heft of noch vinden sal, daer men onse borgher ende stat mede holden sal in oeren rechte ewelike te duijrene, sonder enigherhande argelist’. Such as GAK, OA, no. 3, Stadboek van Kampen (Oudste Foliant) Register van acten van voluntaire jurisdictie en andere zaken 1316–1385; OA, no. 7, Collectorium. De electione magistratus. Register van aantekeningen over zeer uiteenlopende zaken 1365–1427; an unknown register; or scattered leafs. This article is listed in the table of contents, but also in a different handwriting.

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made in 1481. Taking into account that the most recent article in the Boeck van Rechte is dated 1416, the Gulden Boeck was most probably created shortly after that date.37 In the Gulden Boeck the sea laws were newly edited under the title of ‘Waterrecht’. In the table of contents (folios 4r–14r) thirty-nine articles are listed. On folio 17r four articles about the administration of justice on Scania are included, also under the heading of ‘Waterrecht’. The sea laws listed in the table of contents were written on folios 19r–28v. One article, indexed for inclusion on folio 23, was omitted. The sea laws in the Gulden Boeck were written in a completely different order than those in the Boeck van Rechte. A separate heading was created for the articles concerning the crew: ‘Scepeskijndere’.38 That some articles were altered, or rather updated, and others divided up in order to organise them in a more appropriate way indicates that the town council had the intention of creating a sea law that was more accessible and up to date. The articles have remained unnumbered, but they are easily recognisable as separate regulations. There are no further regulations regarding maritime matters in the manuscript, but four folios were left empty for possible additions, like the regulation from 1450 already mentioned. The reason why only one article was added to these laws between 1409 and 1500 may have been the arrival of a copy of the Vonnesse van Damme and the Ordinancie at some point during the fifteenth century. The Schiprecht Inventory no. 17 of the Oud Archief of Kampen is the Schiprecht which, according to the compiler of the inventory, was drawn up around 1550.39 There are several reasons why this is an unlikely date, one of which is the evidence of the handwriting which is clearly of the fifteenth century. Also, if the Vonnesse and the Ordinancie had spread as far as Danzig by the early fifteenth century, it seems unlikely that Kampen, situated on the Zuiderzee where the Ordinancie originated, only received a copy in the mid-sixteenth century. Moreover, by this time Kampen had lost much of its importance as a sea trading town, making a copy of the sea law somewhat redundant. The manuscript was most likely written between about 1425 and 1450.40 The text was produced for the town council in Kampen, as becomes evident when considering the remark on the first page: ‘Dyt boeck hoirt der stadt van Campen toe ende is tboeck vander Water rechten’ (‘This 37

38 39 40

In the archive inventory, it is dated to the mid-fifteenth century. Don, Archieven der Gemeente Kampen, i, 1. In Overijsselsche Stad-, Dijk- en Markeregten, viii–ix, the handwriting is dated to the mid-fifteenth century also. Kampen GB, f. 24r. Don, Archieven, 3. My assumptions with regard to the dating of the handwriting were confirmed by Professor Dick E. H. de Boer.

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book belongs to the town of Kampen and is the book of water laws’).41 The first quire of four folios (of which the first folio is stuck to the cover) contains a table of contents which was written by another medieval scribe around the third quarter of the fifteenth century. This table was probably added to the text in Kampen before the book was bound. Two additions on the first pages were written by yet another medieval hand and suggest that the Gulden Boeck was used simultaneously with these sea laws. On the page stuck to the front cover was written: ‘about the accountability as regards the setting of ships: in the Gulden Boeck fol. xxvij’.42 On the next page, after the remark stating the owner of the manuscript, we find ‘water law is also found in the town’s Gulden Boeck’.43 The sea laws that follow on folio 1 are clearly recognisable as the Vonnesse van Damme. Every article is headed ‘Dit is tfonnesse’ written in red ink. The initial E of the first sentence (‘Eerst men maect een man meester . . .’) is decorated, while the rest of the text is rubricated. This indicates that the manuscript was written at a professional scriptorium, probably at one of the monasteries in the area, rather than by a town clerk. Compared to the copies in the Danzig archives, this manuscript is quite attractive. The twenty-four articles of the Vonnesse, which are in the same sequence as the original, are followed on folio 7r by a version of the Ordinancie in thirty-one articles. Compared to the Amsterdam original, Articles 2 and 3/4 have been moved to the end of the text as Articles 29 and 30 and Article 16 is divided into two articles: 13 and 14 (see Table 1.1).44 Article 28 of the original was initially omitted, because the first line is the same as the starting sentence of Article 27, but it was subsequently added at the end of the text, after ‘Dits waterrechte etcetera’. Articles 26, 27 and 28 in the Kampen manuscript, finally, are only found in this manuscript, the 1429 copy from Danzig and the Wisby Sea Law, as previously related.45 The Hanseatic statutes Kampen was present at many of the Hanseatic meetings, but it appears to have been absent at most of the Hansetage at which statutes regarding maritime matters were drawn up, with the exception of the last three which took place after Kampen’s readmission into the League (1441, 1447 and 1470). The necessity of this readmission suggests that relations between Kampen and the Hanse in the previous decades had been strained. This explains Kampen’s absence from some of the meetings, not a lack of interest in 41

42

43 44 45

GAK, OA, no. 17, Dat Schiprecht, f. ar. Manuscripts were almost always written by order of a customer, as they were expensive and time-consuming to make. ‘Van rekenscap van scepe toe setten int gulden boec fol. xxvij.’ The article referred to is actually on f. 26 of the Gulden Boeck. ‘Van water recht is oick inder stat gulden boic.’ The articles in the manuscript from Kampen are not numbered. Biben, ‘Geschiedenis van het Oud-Nederlandsche Zeeregt’, 471.

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Hanseatic or maritime matters. Also, the majority of Hanseatic towns did not attend all Hansetage, and regional groups of towns would generally send one of them as a representative. Kampen cooperated mainly with Zwolle and Deventer. Of the three meetings that Kampen did attend, the minutes are still available in Kampen. Copies of the Hanserecesse were collected in eight volumes of Acta Hanseatica, which are kept at the town archives.46 On a few occasions Kampen did receive copies of the minutes despite its absence.47 Lübeck Maritime regulations in the Lübeck Town Law The oldest manuscripts of the Lübeck Town Law were written in Latin.48 Only two Latin copies from Lübeck have survived. The first is known as Fragment (L), although it is not actually a fragment of a manuscript, but rather a sort of copybook.49 It consists of only seven folios (fourteen pages), of which the last five pages are empty. The handwriting changes midway through the text and there is no formal ending, which indicates that the text was a work in progress. The manuscript has been dated to between 1226 and 1234.50 The text contains seventy-two articles, one of which deals with sea law (Article 65: ‘De promone’/‘On flat boats’). The second Latin manuscript from Lübeck contains only toll regulations, and is therefore of no further interest here. That only these two relatively unimportant Latin manuscripts have been preserved, when all the main Low German texts from Lübeck have survived, is probably due to the fact that most of the Latin manuscripts were destroyed in Lübeck when they became superfluous after the appearance of Low German versions. The two remaining manuscripts were probably 46 47

48

49

50

GAK, OA, nos 2,125–32 Acta Hanseatica. Considering the lists of manuscripts used for the edition of the recesse in HR (of those concerning sea law), Kampen copies existed at the time of editing of the statutes of the meetings of 1434 (HR 2, I, no. 321, 5 Jun 1434, part of the articles in a newer hand); 1441 (HR 2, II, no. 439, 12 Mar 1441); 1447 (HR 2, III, no. 288, 18 May 1447); 1470 (HR 2, VI, no. 356, 24 Aug 1470). The Acta Hanseatica also include a copy of the meeting of 1418 (HR 1, VI, nos 556–7, 24 Jun 1418), GAK, OA, no. 2,125 Acta Hanseatica, and the Collectorium contains five articles from the meeting of 1380 (HR 1, II, no. 220, 21 Oct 1380), GAK, OA, no. 7 Collectorium. Because of the extensive research on the manuscripts of Lübeck law already undertaken and the large number of available manuscripts, this paragraph is based mainly on secondary literature and editions. The Fragment used to be kept in the town archives in Lübeck, but disappeared after a large part of the contents of the archives were stored elsewhere during World War II. The manuscript has not yet reappeared. A photograph of the copybook is, however, available (AHL, A 3 Repert. 78-3). Am Ende, Verfassungsgeschichte Lübecks, 70.

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forgotten; they were only recovered in the archives in the eighteenth and nineteenth centuries respectively.51 There are other Latin manuscripts of Lübeck law which have survived, but these are mostly authorised copies that were made for other towns.52 Considering the manuscripts of the Town Law, it is possible to establish when various articles on sea law were recorded for the first time (see Table 4.2). As related above, the oldest surviving manuscript (written between 1226 and 1234) contained one article on sea law dealing with the use of a flat boat (pram) without the consent of its owner. No new articles regarding sea law had been added by 1243, when an authorised copy was prepared for Tønder in Denmark. The manuscript copies created for Danzig in 1263 and for Reval in 1257 include one and five more articles respectively. These articles were, however, added to the manuscripts at a later stage; they were first recorded between 1263 and 1275.53 Article 90 in the manuscript for Danzig (H), which is identical to Article 94 in the Reval copy (R1), regulates jettison, as does Article 95 of R1.54 Articles 96 and 97 in this manuscript deal with ship’s hire.55 The first Low German version of the Town Law was produced in the late 1260s or early 1270s; the oldest extant copy (for Elbing, E) dates to 1275. This manuscript contains 161 articles of which ten, scattered throughout the text, consider questions of maritime law.56 Shortly after 1275 an exemplar of Lübeck Town Law was created in Lübeck. This manuscript, known as Ratshandschrift or Kanzleihandschrift (K), was used by the council for the administration of law and functioned as a model for authorised copies produced for other towns. The manuscript includes eight different hands, dating to the period from 1270 to about 1350. It is now kept in Copenhagen.57 A copy of the exemplar, containing 168 articles, was made for Reval (R2) in 1282. Nine articles deal with maritime law.58 One article (Article 134 in E, 133 in K) was omitted because it was almost verbatim the same as another (Article 108 in E, 107 in K).59 In 1294 Chancellor Albrecht of Bardewik reorganised the articles of the Town Law in an attempt to systematise the

51 52

53 54 55 56

57 58

59

Ibid. 72. For a description of all manuscripts, see Chapter 2. The manuscripts from Reval and Danzig are considered in the relevant sections below. Am Ende, Verfassungsgeschichte Lübecks, 56. Edition of the Danzig copy (H) by Hach, Alte Lübische Recht as his Codex I, 185–228. Edition of the Reval copy (R1) in Quellen des Revaler Stadtrechts, vol. II. Articles 43, 85, 89, 99, 108, 133, 134, 139, 148 and 154. For the Elbing Mss of Lübeck law, see Carstenn, ‘Die Elbinger Handschriften des Lübischen Rechts’, 143–83. Ebel, Lübisches Recht, 203–4. Articles 41, 85, 89, 98, 107, 132, 137, 146 and 152. Edition of R2 by Kala in Der Revaler Kodex des lübischen Rechts. Landwehr, ‘Seerecht im Hanseraum’, 96, n. 8, has omitted Article 107 in his list. Edition of K in Norddeutsche Stadtrechte, ed. Korlén, ii, 83–158.

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Table 4.2: Maritime regulations in the different manuscripts of the Lübeck Town Law. Article (titles from K)

L

Van pramen a Van tuge in schepes richte c De gut werpet in water not b De en schip huret c Van schepen d Van schaden van schepe d Van schepes rechte d Van deme schepe d Van wedeschat c Van der mast c Van schepen to hurende e Van gude dat to lande cumt van schep broke e

65 44 41 43 43 41 42 133 43 176 – – 90 85 85 85 83 139 84 177 – 99 94 89 89 89 89 134 90 172 – – 96 99 98 98 96 135 98 178 – – – 108 107 107 104 136 107 173 – – – 133 132 132 129 137 131 174 – – – 134 133 – 130 – 132 – – – – 139 138 137 135 138 137 175 – – 97 148 147 146 144 147 146 168 – – 95 154 153 152 150 206 152 170 – – – – 220 – – 212 181 169 – – – – 230 – – 222 190 171

a = from 1224 to 1236 b = from 1263 to 1275 I c = from 1263 to 1275 II

H

R1 E

K

R2

Ki

Ba

Kl

T2

d = from 1263 to 1275 III e = from 1294 to 1297

text according to subject.60 His copy (Ba) contains 207 articles and fortynine were added at a later date.61 Eleven articles concern the law of the sea of which two are later additions from before 1297.62 The last two copies based on K were ordered by Burgomaster Tideman Güstrow of Lübeck in 1348 (Ti1 and Ti2) and written by the Cathedral’s vicar Helmich Thymmo. The first is an almost verbatim copy of the exemplar, which by that time included 257 articles, and the second a somewhat reorganised transcript. Both include the eleven articles on sea law.63 No authorised copies were made of K after 1350, nor were any more regulations added to this text. Instead, private compilations of Lübeck law began to appear. In the fifteenth century such compilations included Lübeck law and, for example, Hamburg, Roman or Saxon law or the Waterrecht.64 None of these fifteenth-century compilations derives, however, from Lübeck 60

61

62

63

64

Around the same time a copy was made for Kiel (Ki, now kept in Copenhagen) and a second one for Elbing (E2). Ebel, Lübisches Recht, 204. Due to the restructuring of Bardewik, the first 214 articles of K are to be found in the first 207 articles of Ba. Articles 133–9, 146, 206, 212 and 222. Edition of Ba as Codex II in Alte Lübische Recht, ed. Hach, 246–376. In 1297 a copy for the town of Kolberg (Kl) was produced including the two additions. Ebel, Lübisches Recht, 204. Wolter included another three articles: Article 61 which concerns inheritance and includes a sentence about ships; Article 168 which concerns business associations; and Article 295 which does not appear to exist in any of these manuscripts. He omitted Article 43 about the flat boat. Wolter, Schiffrechte der Hansestädte, 14–15. Ebel, Lübisches Recht, 206, 208.

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itself.65 Initially, these manuscripts included clearly distinct sections of each of the laws, but in the sixteenth century these laws were combined to create texts that were subsequently considered to contain purely Lübeck law. Such texts were not applied in the town courts, but they were used as a basis for the revision of the Lübeck Town Law in 1586. This revision was undertaken by the Lübeck town council after repeated requests starting in the late fifteenth century from its daughter towns, especially Kiel, Rostock, Wismar, Stralsund and Elbing, to provide clarity with regard to the contents of its law, as many of the then available texts contradicted each other.66 As mentioned, no authorised copies of Lübeck law had been produced since 1350, but the law had steadily developed. Evidence of this development could, however, only be found in the judgements of the Lübeck court, and these were not readily available to Lübeck’s daughter towns. The latter were dependent on Lübeck for the revision of the law. The 1586 Town Law consists of articles from the Bardewik edition of 1294 and the Ratshandschrift, regulations from the 1270 Hamburg Town Law and statutes from the Hanserecesse. The Lübeck Sea Law of 1299 The Lübeck Sea Law was compiled by Chancellor Albrecht of Bardewik and was confirmed and sealed by the Lübeck town council at Invocavit 1299 (6 March).67 The original is kept in Bardewik’s Copiarius (folios 354r–361r) and consists of forty-two articles.68 There is supposedly one copy with a Flemish translation in a fifteenth-century Hanseatic book of laws, but this has never been studied.69 Perhaps it was used in the Hanseatic kontor in Bruges. The law is often referred to as ‘Jus maritimum in usum Osterlingorum’ (‘Maritime law for the use of the Oosterlinges’), but this does not appear in the original manuscript.70 The name was first used in a 65

66 67 68

69 70

For a description of manuscripts, see Schiffrechte Hamburgs, ed. Lappenberg, P–T, c–cii. Two sixteenth-century Lübeck manuscripts (from 1533 and 1537) include the Gotland Sea Law. See further below. Ebel, Lübisches Recht, 209, 212–13. Edition of the Lübeck Sea Law in LUB II, no. 105. AHL, Hs. 753, Copiarius, ff. 354r–61r. The numbering generally referred to is that added by Dreyer in the eighteenth century. The articles were not numbered originally, but numbering was added at a later time, possibly still in the Middle Ages. This numbering is incomplete and skips a number between 34 and 36. HUB I, 428, n. 2, as cited by Wagner, Handbuch des Seerechts, 75. Oosterlinges, esterlinges, sterlingi, Ostelins, Austrelins were the names used in western Europe (England, Flanders, Netherlands) for the merchants from the ‘East’, i.e. from the Baltic area but also Ostfriesland or Bremen. The term was used colloquially, contrary to ‘Hansa’ and ‘mercatores Alemannie’ which were used in letters and official documents. Hammel-Kiesow, Die Hanse, 66. The name would not have been utilised by the merchants themselves, and would therefore not have been in use in Lübeck around 1299. Jahnke is therefore mistaken when he writes about the adoption of Hamburg laws in Riga and Lübeck and later in Bremen and Oldenburg as ‘jus maritimum Lubecense in usus Osterlingorum’. Jahnke, ‘Hansisches Seerecht’, 58.

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printed edition of the law by the syndic Dreyer, a Lübeck government official who published many of the town’s laws around 1750.71 In the Copiarius the law is titled ‘IUS MARITIMVM Lubecense ao 1299’. Dreyer provided Latin summaries of each article in the margins. No glosses are included in the original which could point to its use in the Middle Ages and the laws remained unchanged. The text was also never copied into any of the manuscripts of town law, neither official nor private. This may be because the laws concerned North Sea shipping, whereas the towns using Lübeck law were all situated on the Baltic coast. Whether the 1299 sea law was used in practice will be discussed below. Other sea laws Lübeck will have possessed copies of all the Hanseatic statutes, although not all the minutes of the Hanseatic meetings (recesse) have survived in the Lübeck archives.72 Lübeck actively took part in devising these regulations and was in charge of replicating the Hanserecesse for dispatch to all other active Hanse towns. More importantly, the statutes had to be incorporated into the town laws of all members in order to gain validity.73 Although this was not always abided by, Lübeck, as instigator of much of Hanseatic regulation, can be expected to have included the statutes in its town law as a rule. The statutes from the 1418 meeting appear in some of the private town law manuscripts from the fifteenth and sixteenth centuries.74 The Ordnung für Schiffer und Schiffsleute, which contains seven articles describing the rights and duties of the crew with regard to certain activities on board ships, was written in the first half of the fourteenth century.75 It cannot be found in any of the official manuscripts of Lübeck Town Law, but it was included in some of the compilations of Lübeck and Hamburg law of 71

72

73

74

75

The laws were published in J. C. H. Dreyer, De formula receptionis juris Lubicensis (Lübeck 1751); Vermischte Abhandlungen (1754). It is possible that Dreyer copied the title from the Bruges copy, but as this originates from the Hanse too, it is unlikely that the term Osterlingorum would have been used. Dreyer is, moreover, known to have been less than accurate when citing his sources. See, for example, Ebel, Lübisches Recht, 79. Considering the lists of manuscripts used for the edition of the recesse in HR (of those concerning sea law), Lübeck copies existed, at the time of editing, of the statutes of the meetings of 1412 (HR 1, VI, no. 68, 10 Apr 1412); 1417 (HR 1, VI, no. 397, 20 May 1417, no. 398, 24 Jun 1417); 1418 (HR 1, VI, no. 556, 24 Jun 1418, but not the text of no. 557 (same date)); 1434 (HR 2, I, no. 321, 5 Jun 1434); 1441 (HR 2, II, no. 439, 12 Mar 1441); 1447 (HR 2, III, no. 288, 18 May 1447). Landwehr, Seerecht der Hanse, 30; Pitz, Bürgereinung und Städteeinung, 408–9. See also Chapter 6. Landwehr, ‘Seerecht im Hanseraum’, 98. The text of HR 1, VI, no. 557, Articles 20–32 is used here. Landwehr, ‘Seerecht im Hanseraum’, 97; Goetze, ‘Der Anteil Lübecks’, 132. Edition of the Ordnung in LUB III, no. 112 and HUB II, no. 667.

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the fifteenth and sixteenth centuries.76 Articles 1 and 3–7 were also adopted in the Gotland and Wisby Sea Laws. There, they make up Articles 1–6. The first regulation is also repeated as the last article of these compilations. No medieval copies of any of the other northern European laws survive, apart from the mentioned compilations of Lübeck and Hamburg law. This is quite remarkable, as one would expect the most important entrepot in northern Europe to have owned copies of the most widely disseminated medieval maritime law in that region. There are two sixteenth-century manuscript copies of the Gotland Sea Law, produced in 1533 and 1537.77 They are probably copies of the 1532 Amsterdam edition of this law. The first printed edition of the Wisby Sea Law from Lübeck was published around the same time (1537). The appearance of this edition, which contains more articles than the publication from 1532 or the two Lübeck manuscripts, suggests that another manuscript of the Gotland or Wisby Sea Law was available in the town. There is no evidence, however, that such a manuscript can be dated to the period before 1500.78 Nonetheless, the absence of such copies does not imply that the Waterrecht itself was unknown in Lübeck. Indeed, one of its constituent parts was Lübeck law. The investigation into legal practice in the final chapter will clarify whether the Lübeck council actually preferred using its own laws until 1500 or whether other laws were utilised too. Reval Lübeck Town Law In a charter of 1248 King Eric Plogpenning confirmed the privileges granted to Reval by King Waldemar II.79 The text is unclear as to whether Waldemar’s privileges had already included Lübeck law or whether King Eric granted them for the first time: ‘Eric etc. confirming herewith the privileges given to our burghers of Reval by our Lord King Waldemar, grants to the same all the laws which the Lübeck burghers have.’80 The use of the 76

77

78

79

80

In the third codex edited by Hach, Alte lübische Recht, 379–548, as Articles 214, 193 and 215–19. The copy from 1537 is currently held in the Lübeck town library (Stadtbibliothek), Ms. Lub. no. 584. The copy from 1533 was formerly held in the Dreyer library. Cf. with the comment that the Waterrecht was used by the maritime courts in Lübeck: Jahnke, ‘Hansisches Seerecht’, 59 referring to O’Sullivan, Ahndung von Rechtsbrüchen, 42 referring to Vogel, Geschichte der deutschen Seeschiffahrt, i, 365. Vogel refers to Wagner (‘Beiträge zur Geschichte des Seerechts’, 408) but the latter makes no such statement. See also Frankot, ‘Diversity and unity’ (forthcoming). Only a copy from 1 February 1347 has survived. LECUB I, no. 223. The original was dated 15 May 1248. ‘Ericus etc. Libertates, civibus nostris de Revalia indultas a domino Rege Waldemaro, tenore praesentium confirmantes, remittimus ipsis omnia iura, quae habent cives Lybicenses.’ Von Bunge, Liv-, est- und curländische Rechtgeschichte, 159. Kivimäe, ‘Das Lübische Recht’, 30.

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Lübeck law was confirmed by King Christopher in 1255.81 Two years later a copy of the Lübeck Town Law was produced for Reval at the request of its council and the Danish king. This Latin copy of the Lübeck Town Law (R1) is preceded by a copy of a charter by King Christopher dated 16 September 1257, granting Reval Lübeck law, and a preamble by the Lübeck council stating that King Christopher and the burghers of Reval had requested a copy of the law, dated August 1257.82 Am Ende has argued that the manuscript kept at the Tallinn town archives is actually a copy of a 1257 original, because the charter from King Christopher at the start of the manuscript post-dates the preamble, but precedes it on the page. It is unlikely that the Lübeck scribe left a space at the start of the manuscript to add the text of a charter that had not yet been issued.83 Moreover, a translation of the original manuscript, produced in the fourteenth century (R3), states that Christopher’s charter in the original codex was sealed, but there is no evidence of a seal in R1.84 Both R1 and R3 are therefore copies of a 1257 original, which has been lost.85 Am Ende has dated R1 to after 1282, as it includes an addition to Article 73 which is not found in any of the other Latin texts, nor in the earliest German versions. The Low German copy of the Lübeck Town Law from Reval dated to 1282 (R2), for example, does not include this addition. R1 included 103 articles, but it is no longer complete; the penultimate folio of a total of sixteen has been cut out. The content of the last five articles, contained on this folio, can be gathered from the translation. The 1257 exemplar originally consisted of the first eighty-seven articles of R1. Articles 89 to 103 were added to the exemplar between 1263 and 1282.86 Article 88 is included only in R1 (and R3), but in none of the other manuscripts of the Lübeck Town Law. In 1257 the Town Law had only contained one article on sea law (Article 41). Five more were added to the Reval manuscript between 1263 and 1275 (Articles 90 and 94–7). Contributions to jettison and the cutting of the mast were regulated in Articles 94 and 95 respectively. In 1282 King Eric Glipping and his mother, Margaret, presented Reval with a Low German manuscript of the Lübeck Town Law (R2).87 This text is also preceded by a preamble, which is almost exactly the same as that in the Latin manuscript. Two miniatures have been included on the reverse of the front page, which are thought to represent the king and his mother. The manuscript contains 168 articles, nine of which were added at a later 81 82 83 84 85 86

87

LECUB I, no. 284, 16 Aug 1255. TLA, TM, no. Cm 5. Am Ende, Verfassungsgeschichte Lübecks, 49; Kala, Lübeck Law and Tallinn, 41. Quellen des Revaler Stadtrechts, ed. Von Bunge, i, 39. Am Ende, Verfassungsgeschichte Lübecks, 49. Ibid. See concordance in Norddeutsche Stadtrechte, ed. Korlén, ii, 27–32 and Am Ende, Verfassungsgeschichte Lübecks, 229–32. TLA, TM, no. Cm 6.

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date by the same scribe.88 Another manuscript from the late thirteenth century is to a large extent identical to R2, but only includes 167 articles.89 Small variations in sequence and wording of the articles exist between the two manuscripts and they were written by different scribes. It is unclear whether they were copied from the same exemplar or whether one is a copy of the other.90 The second manuscript was supplemented around 1390 with twenty-one court judgements from Lübeck which were probably meant to be used as precedents.91 Both manuscripts include nine articles on maritime law (in R2: Articles 41, 85, 89, 98, 107, 132, 137, 146, 152). Articles 107, 132 and 137 cannot be found in R1. Article 107 regulates the payment of freight after shipwreck; Article 132 concerns ship collision. The fourth manuscript including Lübeck law contains the already mentioned Low German translation of the 1257 exemplar (R3).92 The translation was made in 1347, but this particular copy dates from the mid-fifteenth century.93 A final manuscript of Lübeck Law was produced in 1511 and contains 219 articles.94 Other sea laws There are no indications that a copy of the Lübeck Sea Law was kept or utilised by the Reval council, despite the town having been granted Lübeck law. No medieval or sixteenth-century copies from any of the other sea law compilations survive either, nor is there any evidence of written by-laws concerning maritime law having existed. The town thus appears to have been dependent solely on Lübeck law. The only written regulations that were available besides the nine in the Lübeck Town Law were the Hanseatic statutes. Reval was a loyal member of the Hanse and was present at most of the meetings at which the statutes regarding maritime matters were drawn up, apart from those in 1378, 1380 and 1412. Riga was, however, present at this last assembly, representing the Livonian towns, and Reval did receive a copy of the minutes.95 Reval was present at the meetings of 1417, 1418, 1434, 1447 and 1470. None of the Livonian towns attended in 1441. The 88 89 90 91 92 93

94

95

Kala, Revaler Kodex, 28; Norddeutsche Stadtrechte, ed. Korlén, ii, 14. TLA, TM, no. Cm 10/10a. Korlén, Norddeutsche Stadtrechte, ii, 29. Simon, ‘Appellationen von Reval nach Lübeck’, 50; Kala, Revaler Kodex, 29, n. 56. TLA, TM, no. Cm 19. Quellen des Revaler Stadtrechts, ed. Von Bunge, ii, ix. Kala dates the manuscript to the midfourteenth century, possibly 1355. Kala, Lübeck Law and Tallinn, 46. Am Ende dates the manuscript (and the translation) to the fifteenth century. Am Ende, Verfassungsgeschichte Lübecks, 49. TLA, TM, no. Cm 20. Kala, Lübeck Law and Tallinn, 46–7. Ebel (Lübisches Recht, 206–7) named another manuscript from the Tallinn archives which was written in 1509, but neither Kala nor Von Hansen and Greifenhagen (Katalog des Revaler Stadtarchivs) refer to it. HR 1, VI, no. 68, 10 Apr 1412.

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Tallinn archives do not own copies of all the relevant recesse, but some may have been lost.96 The Schifferordnung of 1482 has survived as a separate manuscript entitled Jus Nautarum.97 Danzig Town law Towns in Silesia, Pomerania, Eastern Pomerania and Bohemia were generally granted ‘German law’, which provided them with a status outside or above Slavonic, Polish or Pomeranian land laws. German law usually included the appointment of a Schultheißen, a bailiff, who governed the settlement in the name of the territorial lord. In later years additional privileges would be issued, granting towns the use of a particular law for the administration of justice: Lübeck, Magdeburg or Kulm Town Law.98 It has been argued that the inhabitants of the German settlement and town at Danzig utilised unwritten Lübeck law. This argument is based on the fact that Lübeck was Danzig’s main trading partner in the thirteenth century and that a copy of Lübeck’s town law was requested by Duke Swantopolk and the burghers and council of the town of Danzig in 1263.99 The Latin copy produced at this request (H) consists of 100 articles, of which five are additions from the period 1263–75.100 Two of these articles deal with maritime law (40 and 99) and the second of these concerns jettison. There is no evidence that the manuscript ever reached Danzig nor is there any that it did not or that it was used elsewhere.101 Only thirty years later, in 1294–5, King Przemysław II of Poland granted Danzig Magdeburg law. As discussed above, the Teutonic Order finally provided it with Kulm Town Law in 1346. There is no evidence of manuscripts of these town laws having been available in Danzig. They would, moreover, not have been particularly useful for the administration of maritime law, as Magdeburg and Kulm were both inland towns and their laws therefore do not contain any regulations concerning sea shipping. This was inconvenient for a town like Danzig, whose existence was largely based on sea trade, and probably provides the explanation for Danzig’s acquisition of an extensive collection of sea laws in the fifteenth century. 96

97 98 99 100 101

Considering the lists of manuscripts used for the edition of the recesse in HR (of those concerning sea law), Reval copies existed at the time of editing of the statutes of the meetings of 1412 (see above); 1417 (HR 1,VI, no. 397, 20 May 1417, but not no. 398, 24 Jun 1417); 1434 (HR 2, I, no. 321, 5 Jun 1434); 1447 (HR 2, III, no. 288, 18 May 1447); 1470 (HR 2, VI, no. 356, 24 Aug 1470). TLA, TM, no. Cm 17e. Keyser, ‘Das Stadtrecht Danzigs’, 84–7. Ibid. 89–90; Lingenberg, Oliva und Danzig, 384–90. See Table 4.2. Edition of H in Hach, Alte Lübische Recht, 185–215. Ebel, Lübisches Recht, 79.

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By-laws ( Willkür) No collection of by-laws has survived from the period before 1450, apart from a few fragments from the fourteenth and the first half of the fifteenth centuries. There is evidence, however, that such a collection was already in use during the Order’s rule. In 1427 it was laid down that the jurisdiction in matters concerning the Willkür was passed from the sitting council to the full council.102 The oldest surviving manuscript of by-laws was written by one scribe and was probably the council’s official copy.103 It must have been produced after 1455, because it stipulated in Article 14 that nobody was allowed to build anything ‘where the Jungstadt has stood’ (‘do die junge stat gestanden hat’). This part of Danzig had been destroyed at the start of 1455. In another by-law ‘this war’ (‘dieszen krygen’) is referred to, which indicates that the war (1454–66) was still ongoing when the text was written.104 As the statutory right (Wilkürrecht) was granted to Danzig by the Polish king in 1455, the collection was probably compiled shortly thereafter.105 The oldest surviving Willkür consists of 165 unnumbered articles in an almost completely arbitrary order. The maritime regulations are, however, grouped together as Articles 101 to 116. In 1479 three articles were added to the Willkür, which are of no further interest here. The text is preceded by a land Willkür (twenty-seven articles) granted by the Polish king. Many by-laws in the manuscript were amended, deleted or added later during the fifteenth century, in preparation for the next edition.106 In the second oldest extant manuscript, the text was edited completely. The articles were placed in a different order and in addition to the changes already introduced in the oldest text, further articles were added.107 The manuscript was written after the Thirteen Years War, as some changes in the wording of articles make clear, such as the use of ‘yn kriges’ (‘in war’) as opposed to ‘in dieszen krygen’ (‘in this war’) in Article 16.108 That two of the three additions from 1479, as well as some new by-laws, were included in the text indicates a date of compilation after 1479. Simson dates the handwriting of the main text, and possibly of some of the additions, to the fifteenth century. He argues that the copy was produced between 1479 102

103

104 105 106 107

108

Simson, Geschichte der Danziger Willkür, 11–13. In 1475 a separate court was instituted to administer justice in matters concerning the Willkür called ‘Wetteherren’. Simson, Danziger Willkür, 22. APG, 300, R/X, 1. Simson, Danziger Willkür, 23; the text of the by-laws is published on pp. 25–65. Simson, Danziger Willkür, 15. Ibid. 16. Ibid. 16–24. APG, 300, R/X, 2. The titles of the articles of this manuscript are printed in Simson, Danziger Willkür, 81–91, with a concordance to the articles in the oldest manuscript. Simson, Danziger Willkür, 67.

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and 1500, probably closer to the earlier rather than the later date.109 The manuscript consists of 202 articles which appear more organised than those in the older text, although they are not divided by separate headings. Thirteen more additions were introduced to the text between the turn of the fifteenth century and the 1560s, but none of these concern maritime law.110 Waterrecht manuscript 1 Besides the by-laws and the two articles regarding maritime law in the Lübeck Town Law, the town court in the fifteenth century had two manuscripts at its disposal which were dedicated to the law of the sea. The oldest constituent part of the first (Fq, 1) dates from the early fifteenth century.111 The manuscript can be divided into five parts, written alternately on paper and on parchment.112 The first part consists of four sheets of paper. The first of these contains a list of contents consisting of the first twelve articles of the Vonnesse van Damme. The list is untitled and incomplete. The remaining three folios are empty. The second part consists of twelve sheets of parchment (folios 5–16). An interesting introduction appears on folio 5r: ‘These are the judgements passed by an honourable council of this praiseworthy town of Danzig in those cases which belong in the sphere of the common waterrecht.’113 The introduction continues to state that the judgements that follow were recorded for use in future cases, as precedents so to speak.114 Nine judgements have been recorded on folios 6r–9v in sixteenthcentury handwriting, the last of which is incomplete. Some of the articles are dated.115 Folios 10–16 are empty. The third part of the manuscript was again written on paper (folios 17–28). Folio 17r includes two judgements that have been deleted. The first is dated 1425 and the second is a summarised version of the first. The first appears to be in the same fifteenth-century hand as the list of contents on folio 1, indicating that this list was written around 1425. The second judgement was written by another scribe. Folios 17v–22r contain the nine 109 110 111 112

113

114 115

Ibid. 68. Ibid. 74–5. APG, 300, R/Fq, 1, Waterrecht 1407, 1425–1438, 1482. The information about the external features of this manuscript and Waterrecht manuscript 2 are gathered from Janik, Najstarszy Tekst, 27–9, 50–1, as the original manuscripts are no longer produced in the Gdansk archives. I am grateful for the help of Anna Plisecka in translating parts of this book. The manuscripts are also described in Holtius, ‘Oude Zeeregten in Dantzig’, 6–9; Goldschmidt, ‘Danziger Seerechtsquellen’, 295–7. An overview of publications on Polish maritime law up to 1963 is given in Janik, ‘Die wichtigsten Probleme der Seerechtsgeschichte’, 597–609. ‘Dis seynt die ortheill vonn eynem ersamen rate dieser lobelichen stadt Dantzcike gesproken in den sacken welche zcu erkentnis des gemeynen wasserrechts gehoren.’ See also Hirsch, Danzigs Handels- und Gewerbsgeschichte, 78. Judgement 1: 1428; 7 and 8: 1429.

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judgements of the second part without the introduction of folio 5r. In this case the ninth article is complete and dated 1431. It is followed by six more judgements on folios 22v–25v numbered 10–15, some of which are dated.116 The articles were written by several different hands, and only the groups 2–8, 9–10 and 12–13 were each written by one scribe. The judgements may thus have been the work of seven scribes, all working in the first half of the fifteenth century. The judgements that are dated appear in chronological order. It is therefore very likely that the remaining judgements were written in the same year as the preceding or following dated articles. This conclusion is supported by the fact that most undated articles were written by a scribe of whom at least one other article was dated.117 As such, only Article 14 remains undatable, but since the other articles appear chronologically, it can be ascribed to a year between 1433 and 1436. These judgements are probably the result of a need felt by the council in the 1420s and 1430s to record its judgements in maritime law as precedents, possibly because the Danzig court became increasingly more involved in the administration of maritime justice in Prussia.118 The fourth part consists of twenty-two sheets of parchment (folios 29r– 50v) and contains a copy of the Vonnesse van Damme and the Ordinancie. This copy has been dated to around 1407.119 The copy of the Vonnesse is complete and consists of twenty-four articles entitled: ‘Dit is twater recht in vlaenderen’. This title was changed to ‘Dit is twater recht de men in vlaenderen thom Damme usert dar de andern watherrechte uth gesprathen sienn’ (‘This is the water law which is used in Flanders at Damme from which the other water laws have sprouted’) by a later (fifteenth-century) hand.120 Each of the articles is headed ‘Dit is tfonnesse’. The Vonnesse are directly followed by a copy of the Ordinancie on folio 39v, entitled ‘Hier beghint die ordinancie die die scipheers ende die cooplude met malcanderen begheren van sciprecht’ (‘Here begins the ordinance which the skippers and merchants together desire as regards ship law’). This title is repeated on folio 40r. The copy of the Ordinancie consists of twenty-eight articles and is the shortest of all the known versions 116 117 118 119

120

Judgement 11: 1431; 12: 1433; 13: 1433; 15: 1436. Judgements 2–6 must therefore be dated to 1428–9, no. 10 to 1431. See Chapter 6. Based on the handwriting, Janik argues that a date of 1407, attached to the manuscript at some point in its history, is plausible. Janik, Najstarszy Tekst, 36. Hirsch (according to Holtius, ‘Oude Zeeregten’, 11) considered this copy to be from the late thirteenth or early fourteenth century, which is highly unlikely since the Ordinancie was not written until circa 1350. As the Ordinancie was dated to 1407 by Wagner (‘Quellen des Wisby’schen Seerechts’, 397–9) on the assumption that it was created by the Hanse in that year, some prudence with regard to the dating of this manuscript is called for, especially since that would make this manuscript the oldest extant version of the Ordinancie though it does not include the oldest text. See Frankot, ‘De “Ordinancie van Staveren” ’ (forthcoming). This title was added before 1432; see Chapter 7.

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of this sea law (see Table 1.1). Articles 2 and 3 of the Staveren version have been omitted, Article 11 is divided into three articles (9–11) and Article 15 into two (15–16). In the sixteenth century (c. 1580) a Latin remark was added on folio 50v by council secretary Kasper Schütz121: ‘Here fail the eight chapters that are reproduced in the Lübeck copy (exemplar?)’.122 The last part of this manuscript contains the sixteen articles of the Hanseatic Schifferordnung of 1482. It was written on the last four of six sheets of paper (folios 53r–56r). Articles 13 and 16 have been added by other scribes, and Article 15 has been deleted. The last article is followed by the remark (by yet another scribe) that these articles should be copied and hung ‘up den hoff’, probably the Artushof, a hall near the town hall where the merchants gathered, so that all seamen would be aware of the rules to which they were expected to conform.123 This suggests, of course, that at least some of them could read, and gives an indication as to how knowledge of laws was acquired. As a whole, the manuscript consists of several loose quires which were only compiled after the Middle Ages. The second part is an incomplete copy of the third part, written in the sixteenth century. The title at the beginning of these nine judgements is also a later addition. Since this quire is presented before the original text in the manuscript, the parts were probably bound together at a later time. It is possible that Schütz compiled the manuscript in the late sixteenth century. Waterrecht manuscript 2 Parts of the second sea law compilation (Fq, 2) can also be dated to the first half of the fifteenth century.124 The manuscript starts with a copy of the Vonnesse van Damme and the Ordinancie which has been dated to around 1429. It was probably written by council secretary Konrad of Byczyna.125 The title of the Vonnesse on folio 1r is similar to that in the first manuscript. None of the twenty-four articles is numbered or headed by ‘Dit is tfonnesse’. The Vonnesse are directly followed by a copy of the Ordinancie on folio 10v, entitled ‘Dith ys de ordinancie der schippers mitt den koppludenn handttherende van denn waterrechten und de funthnisse daraff’ (‘This is the ordinance that the skippers employ as regards the water 121

122 123

124 125

Janik, Najstarszy Tekst, 29. According to Hirsch, who was head archivist in Danzig in the mid-nineteenth century, Kasper Schütz also numbered the articles of the Vonnesse and the Ordinancie in this manuscript. Holtius, ‘Oude Zeeregten’, 8. ‘Desiderantur hoc capita octo, quae in Lubecensium exemplari sum [sic] expressa.’ ‘Ersame leve frunde, dit were unsze boghere so it Jw gut duchte: dat sulke artikell mochten uth geschreffen werden unnde up den hoff gehangen werden, dat eyn ider szemaen wuste worna he syck richten szolde.’ APG, 300, R/Fq, 2, Waterrecht 1429, 1431, 1447. Janik, Najstarszy Tekst, 47–8. According to Hirsch, this copy is from the second half of the fifteenth century. Hirsch cited in Holtius, ‘Zeeregten in Dantzig’, 9.

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laws and the judgements thereof’). The titles of both laws appear to have been added by a different scribe, who also wrote the list of contents on folios 29r–30r. The Ordinancie consists of twenty-nine numbered articles and ends on folio 18v. Articles 7 and 9 of the Staveren original have been omitted and Article 15 has been divided into two (11–12, see Table 1.1). The last regulation of the original is followed by three articles, which are included in this manuscript, the copies from Kampen and Dordrecht, and the printed editions of the Wisby Sea Law from 1537 onwards. Articles 2 and 3 have been added at the end of the text.126 These two articles were supplemented later by another scribe; the initials and titles have been omitted. A list of contents of the Ordinancie consisting of twenty-six articles was included on folios 27v and 28r. The titles of Articles 6, 28 and 29 are missing in this list which confirms that the last two regulations were added at a later time. There is another list of contents on folios 29r–30r which is numbered 1–35. These entries are followed by another six in a different handwriting. The list of contents corresponds to the first two parts of the following copy of the Gotland Sea Law, but four titles have been omitted in the list (26, 30, 33 and 35), making a total of thirty-nine articles in the sea law. The six added entries in the list match the first six articles of the Ordinancie which makes up the third part of the Gotland Sea Law. The copy of the Gotland Sea Law, on folios 31r–50v, is entitled ‘Hyr begindt dat hogeste Waterrecht’. It starts with the first fourteen articles of the Gotland Sea Law. These are followed by twenty-five articles of the Vonnesse van Damme (Article 15 is split into two: 29 and 30), twenty-eight of the Ordinancie and two more from Lübeck. These last two parts have been numbered separately (1–28; 35–36). Numbers 29–34 are missing. After Article 28 on folio 50v a sign has been drawn which is repeated on folio 51r with the words ‘D E S U N T sex articuli’: six articles are missing. This copy of the Gotland Sea Law was never completed; initials and titles have only been added to the first eleven articles. The manuscript as a whole ends with a single judgement on folio 98v, dated 1431. The numbering of the third part of the Gotland Sea Law, as well as the sign and the remark, were probably added at a later time, when the text was compared to a copy that included the six articles that are missing here. These six articles were contained in the later editions (from 1537) of the Wisby Sea Law. Without them, the content of the second text is exactly the same as that of the 1505 printed edition from Copenhagen. The Danzig text also has a few distinguishing marks in common with the 1505 edition, which differentiate both from the manuscript from Copenhagen on which

126

Janik considered the last five articles to be of Lübeck origin, without further explanation. Janik, Najstarszy Tekst, 49.

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the edition is supposedly based.127 The manuscript has therefore been thought to be a copy of the printed edition, but this does not explain the odd numbering in the Danzig manuscript, as the 1505 edition is numbered continuously from 1 to 66. Considering some textual differences, it is also unlikely that the printed edition is based on the Danzig text. The exact relation between the different versions thus remains a mystery. Judging by the handwriting, this copy of the Gotland Sea Law was probably written in the first half of the sixteenth century. It is therefore unlikely that this text is that which was sent to Danzig from Wisby after a request for a copy of Wisby’s sea law from the former in 1447.128 Janik has argued that the manuscript is a later copy of the copy received in or shortly after 1447. This argument is worth considering, as a manuscript was probably sent from Wisby in that year, although it has not survived. According to the request sent by Danzig in 1447, Wisby had already agreed to send a copy of their maritime law to Danzig. The letter stated that representatives from Danzig and Wisby had discussed the matter at the 1447 Hanse meeting in Lübeck, the former having enquired whether Wisby possessed a better copy of the Waterrecht. Danzig was in want of a better copy because its court was now hearing an increasing number of maritime cases about the expositions of the waterrecht, of which we have many cases here in our town, to be able to administer justice upon the seafaring man, which expositions we have heard you to have in writing clearly, much more clearly than we have in writing . . .129 That the Danzig court asked for a better or clearer copy suggests that it considered Wisby’s copy to be more extensive than the two already at its disposal. This could indicate that it contained some of the Lübeck laws included in the Gotland and Wisby Sea Laws. Another possibility is that Danzig had only heard that the Wisby copy was better, which may suggest that the Wisby court had a good reputation concerning its expertise in maritime law. This could then serve as an important clue as to why the Waterrecht came to be called Gotland or Wisby Sea Law. If the text in Fq, 2 is a copy of a manuscript produced in 1447, Wisby was in possession of a very early compilation of the Waterrecht including Lübeck 127

128

129

Most striking at a first glance is the difference in the mentioned towns: ‘Kopmanhaven’ instead of ‘Bordeus’ (Article 27 of the Gotland Sea Law), the addition of ‘van der Vere’ (Article 42 of the Gotland Sea Law) and ‘Danske’ instead of ‘Amsterdam’ (Article 49 of the Gotland Sea Law). APG, 300, 27/4, f. 259r, letter from Danzig to Wisby, 11 Sep 1447. Based on this letter, Hirsch argued that the copy was from 1447. Hirsch, Danzigs Handels- und Gewerbsgeschichte, 79–80. ‘alse van de uthsettynge des waterrechts, dar wy vele anfalles van hebben hir in unser stat ume den zeefarenden man hir mit uns in dem rechte tovorscheiden, welk uthsettinge wy wol vornomen hebben, by Iuw clarlick in schriften weren, unde vele clarliker denn wy darvan in schrifften vinden . . .’

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law. Other copies from the second half of the fifteenth century are less comprehensive. The manuscript from Copenhagen, which is considered to be the first manuscript containing the full compilation, based on the previously mentioned evidence of the numbering and the work of two scribes, has been dated to the late fifteenth century. Such an early copy is therefore not likely to have existed but, as both the Wisby original and its Danzig copy are now lost, it cannot be ruled out as a possibility. An alternative solution is that the two articles supplemented to the 1429 copy were added in 1447. On comparing the Wisby and Danzig sea laws, it may have become clear that only those two articles were missing from the version already available in Danzig, and it may therefore not have been useful to copy the whole manuscript. Based on this evidence it is possible to conclude that Danzig possessed at least two and possibly three copies of the Waterrecht in 1447, and at least three and potentially four from the early sixteenth century, emphasising that the town was an important centre for the administration of maritime justice in this period.130 Other sea laws A printed edition of the Gotland or Wisby Sea Law supposedly appeared in Danzig in 1538. It is mentioned in a book on Kulm law published in Danzig in 1745, but neither Schlyter in 1853 nor Matysik in 1961 found any copies of it.131 As only one copy of each of the editions from 1505, 1532 and 1537 survives, all 1538 prints may have been lost. The 1538 Danzig edition may have been based either on the 1532 Amsterdam publication or on that from Lübeck of 1537, as it appears to have had a similar title to both. A third possible model is the sixteenth-century copy of the Gotland Sea Law in Waterrecht manuscript 2. As a permanent member of the Hanse, Danzig would have received copies of all the Hanserecesse. The town was present at all the meetings at which statutes regarding maritime law were drawn up, apart from that of 1482. Copies of all the relevant recesse, except those of 1378 and 1412, survive, as well as the 1482 Schifferordnung.132

130 131

132

See Chapter 6. Das vollständige Culmische Recht (Danzig 1745), cited in Wisby Stadslag och Sjörätt, ed. Schlyter, lxxvi. Schlyter found no copies of the 1532 edition from Amsterdam either, of which a copy is now kept in the KB in Brussels. Matysik, ‘Przedmowa’, 8. T is also mentioned by Janik in ‘Probleme der Seerechtsgeschichte’, 599. Considering the lists of manuscripts used for the edition of the recesse in HR (of those concerning sea law), Danzig copies existed at the time of editing of the statutes of the meetings of 1380 (HR 1, II, no. 220, 21 Oct 1380); 1417 (HR 1, VI, no. 397; 20 May–28 Jul 1417, but not no. 398); 1418 (HR 1, VI, no. 556, 24 Jun 1418, and no. 557, 24 Jun 1418); 1434 (HR 2, I, no. 321, 5 Jun 1434); 1435 (HR 2, I, no. 396, May 1435); 1447 (HR 2, III, no. 288, 18 May 1447); 1470 (HR 2, VI, no. 356, 24 Aug 1470).

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A comparison The collections of written laws available in the five towns differed quite significantly. Only the Hanseatic statutes were accessible in written form in four of the five towns, with the exception of Aberdeen. The 1447 minutes, in which the payment of freightage after shipwreck was regulated, were available in all four of these towns. The Hanseatic statutes were, however, far from comprehensive and the presence of written copies of them in a large percentage of the northern European towns does not indicate the existence of a communal maritime law. The Lübeck Town Law was available in Lübeck and Reval during the later Middle Ages. It was probably also valid in Danzig from its foundation until 1294–5 when Lübeck law was replaced by Magdeburg and later Kulm law. At that time Danzig’s version of the town law contained only two articles on sea law. Reval’s most recent copy (of 1282) included nine; the most complete edition from Lübeck from about 1297 eleven. In Reval, the Lübeck Town Law and the Hanseatic statutes were the only two compilations of laws including maritime regulations that were available in writing during the Middle Ages. In Lübeck the council could also utilise the 1299 Lübeck Sea Law and the Ordnung für Schiffer und Schiffsleute from the first half of the fourteenth century. Danzig possessed a large collection of written sea laws in the fifteenth century. Between 1425 and 1436 sixteen judgements, one of which was deleted, were recorded as precedents. From the second half of the fifteenth century, compilations of by-laws survive, in which local regulations for the harbour were recorded. Besides these specifically Danzig laws, manuscripts of the Waterrecht were available. The oldest of these was written around 1407, the second around 1429 and a possible third was received in 1447. In the first half of the sixteenth century the third extant copy was compiled which consists of the whole of the Gotland Sea Law, including the articles from Lübeck. A copy of the Waterrecht was also available in Kampen in the second half of the fifteenth century. In addition, the town had drawn up its own Kampen Town Law in the Boeck van Rechte and the Gulden Boeck, both of which contain maritime regulations. In Aberdeen, finally, no evidence was found that the council possessed any written compilations of sea laws. Six collections of the main Scottish laws including a translation of the Rôles d’Oléron in Scots from before 1500 are, however, extant. The Rôles may therefore be considered part of the central body of law in Scotland and it is likely that the Aberdeen courts had knowledge of these laws. This will be further discussed below. Three of the five towns were in possession of law compilations originating in that particular town (Lübeck, Danzig and Kampen). In the case of the Lübeck Town Law, these laws were also spread elsewhere, but the use of the Lübeck Sea Law, the Danzig judgements and the Kampen laws remained restricted to their respective councils. The time of compilation of these compilations was quite different. The Lübeck laws were recorded

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relatively early, in the thirteenth century, because the towns in the Baltic region that had been granted Lübeck law had to be provided with copies of these laws. The Kampen laws in their extant form were compiled in the late fourteenth and early fifteenth centuries, but town laws had been recorded from the early fourteenth century when the town probably received statutory rights. Before that time Kampen law was administered orally; there was no need to write it down for other towns. The Danzig judgements were not compiled until the second quarter of the fifteenth century. The town council had been appointed as the central maritime court for Prussia in the final years of the fourteenth or first quarter of the fifteenth century and, for this office, needed a collection of maritime regulations. Before that time Danzig had been relatively dependent on the Teutonic Order. By the late fourteenth century Danzig had become sufficiently independent to be able to pass by-laws and administer law without the Order’s permission. Reval and Aberdeen did not create their own laws or sea laws. These towns were not legally autonomous like the other three. Reval was dependent on Lübeck for its laws, which may be why no other written regulations besides those in the Lübeck Town Law and the Hanseatic statutes were utilised. Copies of the Lübeck Sea Law and the Ordnung für Schiffer und Schiffsleute may have been expected there as well, but their absence may be due to the Lübeck Sea Law having been written for North Sea shipping. Reval only became involved in this on a larger scale in the fifteenth century, over a century after the Sea Law had been compiled. Aberdeen was part of the kingdom of Scotland, in which a relatively uniform legal system existed, with a unified body of law. There were local divergences, but no significant local compilations of laws came into existence, as they had in other areas of northern Europe. The sea law utilised in Scotland, the Rôles d’Oléron, was the same as that available through the Waterrecht elsewhere in northern Europe, such as in Danzig and Kampen, and in Lübeck after 1500. In those towns the Rôles were not the only laws accessible, however, whereas in Aberdeen they were, the odd regulation in the acts of parliament and the Leges Quatuor Burgorum aside. None of the sea law compilations was available in all five towns. The four Hanseatic towns all had copies of the Hanseatic statutes, but these only covered the payment of freightage after shipwreck and could therefore only function in addition to other laws. The main body of law in three of the five towns was specific to those particular towns. In Danzig and Kampen, this law was complemented by the Waterrecht, of which part was also valid in Aberdeen. Reval was legally dependent on Lübeck, but was only in possession of part of its written laws. All five towns thus had a different collection of maritime laws at their disposal and no communality as regards the available collections of sea laws in northern Europe existed. As concluded in the first chapter, no single written sea law was available throughout northern Europe at any time during the Middle Ages.

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Written Law: Local Developments in Lawmaking As the Scottish translations of the Rôles d’Oléron have never before been studied, these texts will be analysed in some detail in this chapter in order to establish, first, whether they were translated from the French or the Flemish; second, whether there were several translations into Scots; and, finally, whether the Scottish texts are faithful translations of the original or whether significant changes were made which may suggest local variations in the customs contained in the Rôles d’Oléron. Given that local developments did take place in Kampen, Lübeck and Danzig, where sea laws were drawn up whose use remained for the most part restricted to these towns, some attempt is necessary to determine whether the contents of these laws were influenced by legal developments elsewhere, or vice versa. The Kampen Town Law, the Lübeck Sea Law and the Danzig judgements will be compared to the laws considered closest to them, that is to say the Ordinancie, the Hamburg Ship Law and the Waterrecht respectively. As regards Lübeck and Danzig, the other laws that originated in these towns will also be considered. A comparison of the individual developments of these three towns will subsequently help to explain the different ways in which the town councils utilised other laws or were influenced by developments elsewhere to create their own sea law collections. The Scottish translations of the Rôles d’Oléron Because Scottish translations of the Rôles d’Oléron have, up until now, only been acknowledged by Angelo Forte, it is necessary to research at least some of the details of this translation.1 First of all, it needs to be determined whether the Scottish texts were translated from the French original or from its Flemish translations. Thus a terminus post quem can be given for the translation and it can also be determined what route the texts of the sea law followed: did they come directly from France, via Flanders or perhaps via England? Second, a comparison between the Scottish texts and between these texts and the Rôles d’Oléron will allow us to establish whether there were indeed several translations, which is suggested by the fact that two of the texts were at some point copied together although they included the 1

Forte, ‘ “Kenning be kenning” ’, 57.

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same laws. At the same time, any possible differences in content between the Scottish and French texts can be detected, in order to determine whether the regulations in Scotland and France/England varied. The Scottish translations compared to the French and Flemish originals The word Oléron does not appear in any of the nine known Scottish manuscripts of the ship laws, although the laws were acknowledged as such in Scotland in the sixteenth and seventeenth centuries at least.2 Only the beginning of NLS, Adv. Ms. 25.4.15 (A1) shows a likeness to the start of the Liber Horn (the oldest extant manuscript of the Rôles d’Oléron), referring to the ‘Jugement of the sey’.3 Also, some of the pages in NLS, Adv. Ms. 25.5.9 (A4) are headed ‘The lawis of schipmen & Jugement of the lawis of the Sey’. In England, the laws were also known as the ‘Judgments of the sea/ Jugements de la mer’. The Dutch and Flemish texts made no mention of the name of Oléron either: here the Rôles d’Oléron were generally known as ‘Waterrecht’. The title ‘Dit is tfonnesse’, which was often used to head each of the Flemish articles,4 cannot be found in the Scottish texts, but neither can the line ‘Et cest le jugement en ceo cas’ at the end of each article in the Rôles d’Oléron, except in the first article of A1. Comparing the words of the actual texts, the translations seem to be closer to the French version than to the Flemish. Some words remain remarkably close to the original French, which cannot be explained solely by the fact that French was a language often used in Scotland. In fact, commercial relations with Flanders were influential regarding maritime matters, and the likeness of Scots to Dutch/Flemish is sometimes striking.5 Of course, a translation from the French does not necessarily mean that the exemplar of the translation came from France. It may also have come from England. This will be discussed further below. Words that stay close to the French, and not to the Flemish, include, for example (the Flemish text is given in brackets): ‘comaundement ou procuracioun’/‘commandment or procuratioun’ (‘procuracie’), ‘mestier de despenses’/‘mystar of despens’ (‘to doene van vitaelgen’) in Article 1;6 ‘attendre soun temps’ (as in weather)/‘bydis his time’ (‘ombeidende 2 3

4

5

6

See Chapter 4. The Liber Horn starts ‘Ceo est la copie de la chatre Doliroun des jugemenz de la meer’. Oléron, title. For example, in the Kampen Ms. (GAK, OA, no. 17) and the oldest Danzig Ms. (APG, 300, R/Fq, 1). For example, kist = kyst for chest, anker = ankyr for anchor, stad = stede for town, schade = skath for damage, fracht = vracht for freight, schip = schip for ship. Oléron/Vonnesse (codex Brugensis), art. 1; NLS, Adv. Ms. 25.4.15, f. 159v (art. 1)/NLS, Bute Ms., f. 173r (art. 14). I have used Twiss’s edition of the oldest copy of the Vonnesse here. The differences between the Scottish translation and the other versions of the Vonnesse are greater.

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tiid ende wind’) in Article 2;7 ‘il est tenu damender’/‘he is haldyn to mak amendis’ (‘hy eist sculdich te beterne’) in Article 3;8 ‘sempire’/‘payr’ (‘breict’) in Article 4;9 ‘purveier’/‘purway’ (‘provenance te ghevene’) in Article 6;10 ‘eschaper’/‘eschap’ (‘liden’), ‘taunt’/‘alsmekill’ (‘bi also’) in Article 8;11 ‘dur sege’/‘herd segis’ (‘droge zate’) in Article 9;12 ‘quite et deliveres’/‘quyt and be deliverit’ (‘los ende quite’) in Article 11;13 ‘contekes’/‘contak’ (‘debaet’) in Article 14;14 ‘enfoundre’/‘fondrys’ (‘ute vlieghen’), ‘prisagez et parti’/‘presyt and partyt’ (‘te zine bi prise’) in Article 15;15 ‘pur furnir la veyage’/‘perfurnis of his wiagis’ (‘te vuldoene de reise’) in Article 19;16 ‘vewe par vewe et corps par corps’/‘syth be syth body thrw body’ (‘wille hi of ne wille, lechame over lechame’) in Article 20.17 The replacement of Bordeaux by Sluys in Articles 1, 4 and 8 of the Vonnesse van Damme is not found in the Scottish texts. There ‘Burdews’ features, as well as Rochele in some other articles. Based on this comparison it appears that the Scottish text was based on the French text rather than on the Flemish. Despite this similarity in the wording, the meaning of the original was sometimes changed or made unintelligible in the Scottish texts. The most noticeable difference is the use of ‘schipmen’ in many instances where ‘merchants’ is meant (in French ‘marchaunz’). The word ‘marchand’ can be found only three times in NLS, Bute Ms. (B, Articles 11, 15 and 23), whereas the word ‘schipmen’ is used wrongly in five articles in all of the texts (Horn, Articles 4, 8, 9, 10 and 23). A clue to an explanation of this is given in B, in which the word ‘chepmen’ is used in most instances where the other manuscripts have ‘schipmen’ instead of ‘merchants’. Only in Article 11 (which is the first article in these copies) is the word ‘chepmen’ also used once in NLS, Adv. Ms. 25.5.6 (A3), Adv. Ms. 25.5.9 (A4), Adv. Ms. 7.1.9 (A5), British Library, Harley Ms. 4700 (H) and Cambridge University Library, Ms. Ee. 4. 21 (C), but not in A1 and Lambeth Palace Library, Ms. 167 (L) (the word is not used at all in NLS Adv. Ms. 25.5.7 (A2)). The original translator may have used the word ‘chapman’ (pedlar) instead of ‘merchant’ in the majority of translations of this word, but this has perhaps erroneously been changed to ‘shipman’ at a later date. In those cases where a sailor is meant, the word ‘schipman’ is always used in all copies. These 7 8 9 10 11 12 13 14 15 16 17

Oléron/Vonnesse (Codex Brugensis), art. 2; NLS, Adv. Ms. 25.4.15, f. 159v (art. 2). Oléron/Vonnesse (Codex Brugensis), art. 3; NLS, Adv. Ms. 25.4.15, f. 160r (art. 3). Oléron/Vonnesse (Codex Brugensis), art. 4; NLS, Adv. Ms. 25.4.15, f. 160r (art. 4). Oléron/Vonnesse (Codex Brugensis), art. 6; NLS, Adv. Ms. 25.4.15, f. 160v (art. 6). Oléron/Vonnesse (Codex Brugensis), art. 8; NLS, Adv. Ms. 25.4.15, f. 161r (art. 8). Oléron/Vonnesse (Codex Brugensis), art. 9; NLS, Adv. Ms. 25.4.15, f. 161r (art. 9). Oléron/Vonnesse (Codex Brugensis), art. 11; NLS, Adv. Ms. 25.4.15, f. 161v (art. 11). Oléron/Vonnesse (Codex Brugensis), art. 14; NLS, Adv. Ms. 25.4.15, f. 162r (art. 15). Oléron/Vonnesse (Codex Brugensis), art. 15; NLS, Bute Ms., f. 174v (art. 24). Oléron/Vonnesse (Codex Brugensis), art. 19; NLS, Adv. Ms. 25.4.15, f. 162v (art. 19). Oléron/Vonnesse (Codex Brugensis), art. 20; NLS, Bute Ms., f. 172v (art. 7).

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similarities between the copies suggest that only one translation from French into Scots was made. This assumption is further supported by an analysis of other passages that were mistranslated. Article 8 (on jettison) of the Rôles d’Oléron was, for example, badly translated: kil ne fesoit mes pur sauver les corps et les darres et les vins. 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. Et y doyt le mestre partir a countre la nef ou soun fret a soun chois pour estorer le damage.18 (Oléron, Article 8) that he ne dyd it bot in saufte of the schip and of the men. And than the gys (goods) be it wynys or uthyr gude that is castyn, it sal be presyt and made ilk lib. utherys bruthyr betwx the chepman. Thai aw to part the master agaynys the chepman wyth his fraucht and his skathys to be amendyt.19 (B, Article 21) that he it dide in saufte of the schip and the gudis betwyn or quhat sa ever it be thar in. And the gudis that ar castyn salbe presit and maide ilk lib. otheris broder betwix the schepmen. Thai aw to pay the master again the schip with his fraucht and his scathes to be amendit.20 (A1, Article 8) that he kest noght tha gudis for na causs bot for the savite of the schip and of the gudis. And than the gudis that ar castin sall be departyt ilkane vyth utheris bruther, vyth the fraght of the schip and his skaythis to be amendyt.21 (A2, Article 8) In all three texts, the part about the estimation of the jettisoned goods according to the price of those that were saved is left out and, instead, the Scottish regulations can be understood to rule that the price of the jettisoned goods (the damages) should be divided pound by pound amongst the ‘shipmen’, instead of that of the saved goods in the Rôles d’Oléron. The inclusion of the skipper in the reimbursement with his ship or his freight is completely misunderstood; in the Scottish texts the skipper is to be paid for his freight and his damages. Again, although the wording varies, the corruption is similar in the three texts, which confirms that all were based on a single translation of the French into Scots. This will be analysed further in the comparison of the translations in the next paragraph. Based on the comparison of the translations with the French and Flemish texts, it is possible to conclude that the translation was based on an original in French and not on any of the Flemish texts. This translation 18 19 20 21

For a translation, see Chapter 2. NLS, Bute Ms., f. 174r. NLS, Adv. Ms. 25.4.15, f. 161r. NLS, Adv. Ms. 25.5.7, f. 132v.

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could therefore have been made at any time between 1286 and the late fourteenth century (B) and could have been based on a model from either France or England. Diplomatic relations in this period were more friendly with the former. However, despite the wars, trade with England did continue and Scottish laws, both burghal and general, were mainly influenced by English legal tradition.22 In addition, the translations often remain close to the text in the English Liber Horn. It is more likely, therefore, that the model came from England than from France. The Scottish texts compared As established above, four of the nine manuscripts under consideration (B, A1, A2 and L) contain a single version of the Rôles d’Oléron, whereas the other five (A3, A4, A5, H and C) include two different texts. The material is ordered differently in B/L, A1 and A2, but the remaining five all follow the sequence of B/L followed by A2 (though some articles have been omitted in A5). A comparison of the texts is required to determine whether only the sequence is different or whether the contents vary too. B and L are for a large part the same, but clearly neither is a copy of the other. In both copies mistakes have been made that cannot be found in the other text. For example, in Horn Article 5 (Article 18 in both copies) B has ‘some festnys’ (cables), whereas L has ‘four festynnys’.23 All the other texts also have ‘four’, as does the original (‘quatre amarrees’). In Horn Article 13 (Article 3 in both copies) the town of Calais has been omitted in L, but can be found in all the other texts.24 At times L is closer to A1, for example in Article 6, in which only those two texts have ‘ship’ instead of ‘ship gude’.25 Also, in Article 7 L has ‘ill’, A1 and A2 have ‘seykness’, whereas B (and all the double copies) have ‘evill’.26 Based on the comparison of all the texts it is also clear that the five double copies in A3, A4, A5, H and C were not based directly on B or L. As B is by far the oldest surviving manuscript, this will be used as the representative of these texts in the following. When analysing the two versions in A3, A4, A5, H and C, it is confirmed that these five manuscripts contain copies of both the texts of B and A2, though on older versions of these texts. Like B, A2 shows mistakes, such as missing words, which cannot be found in any of the double copies in A3, A4, A5, H and C. But otherwise the five manuscripts only show minor differences in comparison to B and A2 and to each other. With regard to the relation between A3, A4, A5, H and C, it seems likely that H is a copy of A3, but that none of the other three is. 22 23 24 25 26

MacQueen and Windram, ‘Laws and courts’, 222. NLS, Bute Ms., f. 173v; Lambeth Palace Library, Ms. 167, f. 216r. Lambeth Palace Library, Ms. 167, f. 214v. Lambeth Palace Library, Ms. 167, f. 216r; NLS, Adv. Ms. 25.4.15, f. 160v. Lambeth Palace Library, Ms. 167, f. 216r; NLS Adv. Ms. 25.4.15, f. 160v; Adv. Ms. 25.5.7, f. 132r.

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A3 includes an addition in the margin to its Article 16 (Horn Article 3) taken from the second version of this article in the same manuscript (Article 27). He is not halding to lene thaim ony thing [na yhit to gif thaim ocht. And alsua thai haf tynt thar hyre quhen the schip is tynt, thai may not sell the takil of] Fore thane thai have tynt thare hyris.27 (A3, Article 16) The maister is nocht halding to len thaim na yhit to gif thame ocht. Ande sua thai have tynt thar hyre quhen the schip is tynt, thai may not sell the takill of hir but commandment of the maisteris of that schipe.28 (A3, Article 27) A4, A5 and C do not include this addition, but H does. There is also another example in which a piece of text (Horn Article 24) is only left out in A3 and H, but not in A4 and C (the article is omitted in A5). Now that has been established that A3, A4, A5, H and C were mere copies of B and A2, these five texts can be excluded from a further comparison which must be undertaken to establish the differences and similarities between B, A1 and A2. When comparing the first article of the Rôles d’Oléron in each of the three articles, the texts are very similar: A man is made mayster of a schip, that is twa mennys or thre, the schip passys oute of the land and cummys to Burdews or to Rochel for to be frauchtyt or at ony uthyr stede, the maystyr may nocht sel the schip bot gyf he hafe commandment of hys maysteris. Bot gyf he hafe mystar of despens, he may lay in wed som of the takyl be consaile of his falous wyth in burde.29 (B, Article 14) In the jugement of the sey in the first mak a man maister of a schip, thet is twa mennis or iij, the schip passis out of the lande and cumis to burdus or to the rochell or to be frachtyt in ony strangis sted, the maister may not sell the schip bot gif he haf commandment or procuratioun of his masteris. Bot gif mister of expensis, he may weill lay sum of the takill in wed with consail of his falowis within burd. And this is the iugement in this case.30 (A1, Article 1) It is to wit that a man maid maister of a schip, that is twa mennis or thre, the schip passis oute of the lande ande cummys in burdiouss or to ony uthir strange stede to be fraucht, at the maister may nocht sell the schip bot gif he commandment haf or certane bidding of his maisteris. Bot gif he have mister of dispensis, he may wele lay sum of the 27 28 29 30

NLS, Adv. Ms. 25.5.6, f. 209v. (my brackets). NLS, Adv. Ms. 25.5.6, ff. 212r–212v. NLS, Bute Ms., f. 173r. NLS, Adv. Ms. 25.4.15, f. 159v.

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takillis in to wed with counsale of his folowis within schipeburd etc.31 (A3, Article 2532) A1 is the only manuscript that includes the ‘And this is the jugement in this case’, as is usual in the Rôles d’Oléron, but this ending is found only in the first article. In Article 12 there is, however, also the addition ‘and that I gif for donne’, which can be considered similar. When comparing the three texts to the French original, A1 stays closer to it than the other two. The Rôles d’Oléron, for example, also use the wording ‘commandement ou procuracioun’. This closeness to the French original of A1 appears also when comparing other articles. One noticeable change that must have been made deliberately is the replacement of ‘wines’ in article 4 with ‘skynnis’.33 Sheep skins were an important Scottish export product and this change was thus made to adapt the laws to Scottish circumstances. B, on the other hand, often shows minor additions which in general do not change the meaning of the text, whereas more marked variations sometimes appear in A2: Il deyvent estre countes livere a livere come get. Et il deyvent partir les marchaunz et paier saunz nul delai tot avaunt qe les darres serrount mises hors de la nef. Et si la nef estoit en dur sege et le mestre demorast pur lur debat et yl y eust corisoun, le mestre ne doit partir, eins si doit aver soun fret cum des autres darres qi sount sauvez.34 (Oléron, Article 9) It aw to be castin out punde punde lik as it war castin. It aw to be payit amang the schipmen or ony gudis pas out of the schip. And gif the schip be in herd segis and the schipmen be greffyt and the master duelle about thar debat, the master aw nocht to pas away befor that he his fraucht haf of the gudis at thai debat for etc.35 (A1, Article 9) It aw to be castyn ponde be ponde as it war castyng, and aw to be payit amang the chepmen or ony gudys pas oute of the schip. And gyf the schip be in harde sege, the mayster aw to ger the schipmen amend it sone at the schyp tak na skath. And gyf ony debate be amang the schypmen of thair gudes and thai be sare grevit, the mayster aw to dwel 31 32

33 34

35

NLS, Adv. Ms. 25.5.6, f. 211v. Since the first three articles of A2 are missing because of a ripped-out page, the version in A3 is used here. Although this article may vary slightly from the original, a comparison of A2 and A3 has shown that only minor differences exist between these two texts. NLS, Adv. Ms. 25.4.14, f. 160r. ‘They shall be reckoned pound by pound as in jettison. And the merchants should share and pay everything without delay, before the goods are taken from the ship. And if the ship should be on hard ground and the master delays because of their debate and there shall be leakage, the master does not have to share, but he shall have his freight as of the other goods that are saved.’ NLS, Adv. Ms. 25.4.15, f. 161r.

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abowte thair debate and ger it be amendyt wythin the schyp burde sufficiandly ilkane tyl uthyr, and mak thaim gude frendis as thai war before. Bot the mayster aw nocht to part away before he hafe his fraucht of the gudis the qwhylkys thai are in debate fore.36 (B, Article 22) The gudis sall be castin pund to pund as it var, and pay the master his tynsall or at ony gudis pass out of the schip. And geyff the schip be in hyr and the master duell about ther debayt, the master sall be payt his tynsalle sustenyt in ther defaut vyth the fraght.37 (A2, Article 9) In this case, B shows some rather elaborate additions as compared to the second half of Article 9 of the French text. The wording of this second part in A2 is almost entirely different from that of the other two. As opposed to being another translation of the original, the writer of this manuscript created these words himself, since in other parts the wording does resemble that in the other texts. The writer perhaps based these changes on a rule from practice. Similar changes can be found in a few more articles. When considering the translation of some of the French articles in A1, a few of these are indeed unclear. Instead of copying that text slavishly, as was most commonly done in the Middle Ages, the writer of A2 changed some unintelligible parts, again possibly basing the new text on existing customs. The text of Article 14 of the Rôles d’Oléron is a good example of this: Contek is fet en une nef entre le mestre et ses mariners. Le mestre deit ouster la towaile devaunt ses mariners trois foitz avaunt qe il les menge hors. [. . .] Et si ensink soit qe le mestre ume autresi bon mariner cum li en la nef, et la perde par acun aventure, le mestre est tenu de rendre le damage de la nef et de la marchaundise qil y serra sil ad de quei.38 (Oléron, Article 14) Contok be maid betuix the schipmen and the master aw to be honoryt befor thaim. And gif ony of thaim be rebel again hym, he aw to command him thrise out of the schip. [. . .] And be not the master als gud schipman as thai that ar thar in, gif ony scathes cumis to the schip, the master is haldin to mak amendis.39 (A1, Article 15) The mayster of the schip aw to be honowryt befor hys servandys. And gyf one of thaim be rebelland agaynys hym, he aw to put hym owte of 36 37 38

39

NLS, Bute Ms., f. 174r. NLS, Adv. Ms. 25.5.7, f. 132v. ‘A dispute arises on a ship between the master and the mariners. The master should remove the tablecloth three times from his mariners, before he sends them out of the ship. [. . .] And if the master cannot find an equally good sailor as he [to serve] on the ship, and the ship founders through some cause, the master will have to compensate the damages to the ship and the cargo within it.’ NLS, Adv. Ms. 25.4.15, f. 162r.

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the schyp. [. . .] And gyf the mayster war nocht swa gude schypman as he wende he war thar in, and oucht cum to the schyp bot gude, the mayster sal pay it and mak amendys of the gudys.40 (B, Article 10) Geyff that contak be mayd amangis schipmen, the master aw to be befor thaim and geyff ony of thaim rebell aganys hym, he aw to command thris out his schip. [. . .] And geyff the master be noght sa gud a schipman as uther in the schip, and he vill noght do consall, geyff ony skathis cummys to the schip or to the gudis that ar in the schip, he is haldin to tha skathis to mak amendis.41 (A2, Article 13) This article is originally about the practice of refusing a troublemaker his food three times, and thus giving the mariner three chances to make up with the skipper, before he was ejected from the ship to make sure the situation did not escalate.42 In the Scottish texts, this practice has disappeared. Instead, the prominence of the skipper in relation to his mariners was stressed: he had to be honoured and if any of the sailors rebelled, they could be thrown off the ship. Whether this variation is due to a bad understanding of the French text, or to a deliberate change to fit Scottish customs, is unclear. It is likely, however, that the last part of the article was translated badly, since it does not make much sense in B and A1: if the skipper is not as good a shipman as the mariner who was ejected, and anything happens to the ship, the skipper has to bear the damages. In the original it says that if the skipper cannot find a good replacement for the shipman, and so on. In A2 the text is changed to mean that when the skipper is not as good a shipman as others in the ship and he will not ask their counsel, he will have to compensate any damages to the ship and the cargo. Based on this comparison of the three texts and of the original, it is possible to conclude that all three versions were based on an earlier Scottish translation which three copyists/writers used in a different fashion. In the case of B and A2 there was at least one other stage between the original translation and those manuscripts, as comparisons with L and the double copies in A3, A4, A5, H and C have established. None of the three texts can be based on any of the other three. Although A1 stays closest to the original text, it lacks the final four articles, which are included in the other two. B and A2 both show some noticeable differences from but also great similarities with the original, but generally in different places, making it impossible for either to be a copy of the other. Moreover, the writer of B changed the sequence of the articles significantly, whereas A2 largely follows the order of the Rôles d’Oléron but is missing three articles. The copyist of A1 copied the original translation almost verbatim. Only a few instances can be found in which he probably left out a word or part 40 41 42

NLS, Bute Ms., ff. 172v–173r. NLS, Adv. Ms. 25.5.7, ff. 133r–133v. Korthals Altes, Ons oudste zeerecht, 42.

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of a sentence. The writer of B, on the other hand, mostly added words and sentences to the text and significantly changed its sequence. This was probably done to suit its user, although it is not exactly clear in what way. The additions do not always make the text clearer and the sequence does not seem any more logical than that of the Rôles d’Oléron. The writer of A2 mainly made more significant changes to the text, though only in some articles. He adjusted the wording of the sentences in those cases where these were unclear or perhaps not in accordance with Scottish legal practice. The copyists of A3, A4 and A5, finally, again copied the texts of B and A2 almost verbatim, probably based on an intermediate manuscript. Why six articles were left out in A5 (and, for that matter, four and three in A1 and A2 respectively) remains unclear. Conclusions The texts of the ‘Lawis of schippis’ in the nine known manuscripts have given us some clues as to the development of the Scottish translations. Although B is the oldest extant manuscript with a Scottish version of the Rôles d’Oléron, it is not the original translation. It was based on (a copy of) an older text which was also used as a model for A1 and A2. Indeed, the text of A1 remains closer to the original than that of B. The writer of the latter made some additions to the text which did not significantly alter its meaning. The copyist of A2, on the other hand, made changes to the wording of some of the articles, thus occasionally changing their meaning. L follows the same sequence as B but neither is a copy of the other. The texts in A3, A4, A5, H and C were based on texts similar to those in B and A2. Both the texts in A3/A4/A5/H/C and A2 contained a few articles with a slightly different content from that of the original Rôles d’Oléron. The double copies did, however, also include a copy of the versions in B in which the meaning of the articles was not altered significantly, although it was sometimes unintelligible. Because of this unintelligibility, users of these double copies may in practice have turned instead to the copy of A2 in those cases in which the articles in this version were easier to understand. Whether the Aberdeen council used any of these written laws in practice will be discussed in Chapter 7. Here it suffices to conclude that a few of the Scottish articles in some of the manuscripts differed slightly from the French. It is unclear whether these differences were based on legal practice, or whether the copyist of A2 made them up. The main part of the Scottish articles remained close to the original. The original translation of the Rôles d’Oléron into Scots was based on an original in French which may have come from either France or England, but most likely from the latter. Since the original Rôles were drawn up in the late thirteenth century and the oldest extant copy is from the early fourteenth, the translation into Scots was probably not made before this

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latter date. It must have been created before the late fourteenth century, however, since B was written at that time. The translation can therefore be dated to the second or third quarter of the fourteenth century. Kampen The contents of the Boeck van Rechte and the Gulden Boeck as regards shipwreck, jettison and ship collision have already been dealt with in the second chapter. Some of Kampen’s laws have proven to be unique for northern Europe (especially as regards jettison), whereas others were similar to other northern European laws (for example those concerning the cutting down of the mast). A few similarities to the Ordinancie, which was also compiled for Zuiderzee trade, have already been indicated. Contact between the towns by the Zuiderzee were close, and all were dealing with similar problems which were typical to sailing on an inland sea with two narrow entrances (Marsdiep and Vlie). A certain likeness and mutual influence can, therefore, be expected when comparing the two laws. In this section, the relationship between these two laws will be analysed further in order to determine the similarity of these laws, as well as the degree of influence they exerted on each other. The Boeck van Rechte The articles regarding maritime law in the Boeck van Rechte were recorded around the same time or just before the Ordinancie was drawn up, that is to say in the second to third quarter of the fourteenth century. It is unlikely, therefore, that the Kampen council was familiar with the contents of the Ordinancie in its written form when it compiled its laws. Moreover, both laws probably consisted mainly of existing customs. If any influence from either law was exerted on the other, it must have taken place in day-to-day practice. Such an influence is, of course, hard to establish since both laws were drawn up at around the same time and common customs may have existed in the Zuiderzee area without any influence being exercised either way. When comparing the maritime regulations in the Boeck van Rechte and the Ordinancie, it is therefore only possible to indicate similarities and differences. A potential influence of the Ordinancie on the Kampen laws can only be established with regard to the addition from 1407 and 1409 and the Gulden Boeck. Jettison and lotelghelt (the contributions to a pilgrimage as explained in Chapter 2) were dealt with in Article 4 of both the Boeck van Rechte and the Ordinancie.43 The former covered both subjects simultaneously and only dealt with the contribution to damages after jettison, whereas the second regulated lotelghelt at the end of the stipulation after prescribing the con43

GAK, OA, no. 5, ff. 17r–17v.

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sultation procedure between skipper and merchants as regards jettison. The Ordinancie also stipulated that merchants should be allowed to choose whether the value of the ship or freight should count towards the compensation of jettison. The Kampen law, on the other hand, laid down that the skipper should contribute with both his ship and his freight. Contrary to the Ordinancie, in which the practice of setten was prescribed to establish the value of the ship, the Boeck van Rechte stipulated that the ship should be valued under oath. Both laws considered the possibility of money being transported on the ship. The Boeck van Rechte laid down that only half this money should be included in the contribution calculations (‘twe marc vor eene’). The regulation in the Ordinancie was more extensive; it also stipulated that the owner of the money should reveal its presence before a jettison was carried out, and it described the value of other things that counted towards the contribution, such as a cot. The Kampen law was more elaborate on the subject of lotelghelt. The Ordinancie again regulated the process of consultation and then laid down the amount of lotelghelt: ‘as much as is set and is reasonable and customary’ (‘soe vele dat men dairop settet ende redelijck is ende woenlick’). The contributions should be calculated like these were in cases of jettison (‘gelyke werpeghelde’). In the Boeck van Rechte the costs were laid down per place of pilgrimage, that is to say to Our Lady in Rocamadour (‘Modone’; ‘Rosmodone’ in the Gulden Boeck) in the south of France, to Santiago de Compostela and to Our Lady in Aachen. Concerning all three places the costs of the journey and a donation were regulated. The rules regarding these two subjects were thus distinct in many respects. The variation in the contributions of the skipper (ship and freight vs. ship or freight) and the different methods to establish the value of the ship are especially significant. On the other hand, both laws did deal with some questions that are found in few other laws: the valuation of money in the contribution to jettison, which was also found briefly in the third Novgorod Skra, the Wisby Town Law and the revised Riga Town Law, and the subject of lotelghelt, which is dealt with in an unsatisfactory manner in the revised Riga Town Law and the 1497 Hamburg Ship Law.44 Some mutual customs therefore seem to have existed in the Zuiderzee area, as well as an interest to include some subjects that were not commonly dealt with in the written sea laws. Some influence from either on the other may therefore have been exercised, but only as regards the inclusion of certain subjects, not in respect to their actual regulation. The subject of the cutting of the mast was dealt with in Article 5 of both laws.45 These regulations show more similarities in their content: both mention the cutting of the mast or the anchor cables and the necessary 44

45

Novgorod III, art. 38; Wisby TL, art. 10; Riga II, art. 5 and art. 18. Riga II, art. 18; Hamburg 1497, art. 32. GAK, OA, no. 5, f. 17v.

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consent of the merchants to conduct this measure. The Kampen law stated that felling could only be carried out in an emergency situation. The Ordinancie named the saving of ship and cargo as the aim of the cutting. The Ordinancie also considered the possibility that the merchants would object against the felling of the mast. In this case the skipper was still allowed to cut if he, with a third of his crew, would swear under oath that it was done in an emergency situation. The Kampen law, on the other hand, regulated the valuation of the mast and the anchor. As was discussed above, it also acknowledged that other rules possibly existed elsewhere. The similarities between the two laws concerning this matter cannot be ascribed to close relations between the towns by the Zuiderzee; they are common to a larger group of sea laws. The differences between the laws are less distinct, but there are no particular joint customs recognisable. Regarding shipwreck, Article 98 of the Kampen Town Law, drawn up in 1372, stipulated that spoilt goods could be abandoned instead of merchants having to pay freight.46 Freightage was due for undamaged goods. This rule did not specifically concern shipwreck, but rather any damage to cargo that was caused by an emergency situation (‘van noedes weghen’). Also recorded in 1372, Article 100 concerned the shipwreck of vessels ‘onder Enghelant’, in England’s jurisdiction.47 In such cases, sailors were obliged to help salvage the goods in return for board and voering, provided enough of the cargo was salvaged to cover the costs of these. These two laws, which were drawn up after most of the other maritime regulations, were not influenced by the rules laid down in the Ordinancie, as different aspects were considered there altogether. The possibility of abandonment of goods was unique to Kampen until it was provided for in the Hanseatic statutes in 1447 (Article 93). The law about shipwrecks in English territory probably came into existence as a result of specific occurrences there which had demanded regulation. The Ordinancie, on the other hand, laid down that a skipper should be allowed to repair his ship, if possible. If a vessel was too damaged to complete a journey, merchants would be obliged to pay full freightage for all their goods that had been salvaged. If the merchants did not have sufficient money on them, the skipper was allowed to take part of the goods to the value of the freight. So, apart from the fact that (full) freight was due only for saved goods in both laws, there were no similarities between the Ordinancie and the Boeck van Rechte. Both laws also considered different aspects of ship collision. The Kampen Town Law only stipulated that deliberate collisions resulted in the forfeiture of life and goods of the skipper (Article 3).48 Neither the Boeck van Rechte nor the Gulden Boeck regulated accidental collisions. The Ordinancie, on the other hand, included three separate articles on this 46 47 48

GAK, OA, no. 5, f. 33v. GAK, OA, no. 5, f. 33v. GAK, OA, no. 5, f. 17r.

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subject, – Articles 2, 14 and 15 – as well as prescribing the use of buoys on anchors to prevent damage in Article 16. As both laws regulated shipping to and from the Zuiderzee, both dealt with the subject of the usage of lighters. To gain entrance to the Zuiderzee, ships had to sail through the Vlie or the Marsdiep. With the growing size of ships, this became increasingly difficult towards the later Middle Ages, as ships could easily run aground on one of the many sandbanks. Smaller ships were used to lighten the vessel so it could pass these dangerous spots without trouble. The Kampen Town Law, in Article 7, included rules regulating the contributions to any damage to either ship or lighter, which were calculated considering the ship, the freight and the cargo, and the costs of the lighting, which only regarded the vessel and the goods.49 According to the Ordinancie, the costs of the use of lighters after a vessel had run aground had to be split between the skipper and the merchants equally (Article 18), but those of the lighting of a ship to prevent it running aground were divided between skipper and merchants two to one (Article 19). If a ship was still drawing too much depth after goods had been removed, all the costs of the lighting would have to be borne by the skipper (Article 19). Goods transferred onto lighters would have to be unloaded within five days (Article 21). Again, there were no particular similarities between the laws; both dealt with the subject differently. There are thus some resemblances in the subjects dealt with in the Kampen Town Law and the Ordinancie, and in the regulation set for them, but only a few of those distinguish themselves as customs specific to the Zuiderzee area, different from any of the other northern European laws. With regard to most of the subjects discussed, however, different aspects were considered in the Ordinancie and the Boeck van Rechte, and some significant distinctions in the rules existed. No communality therefore appears to have existed between the Ordinancie and the Kampen Town Law in the second half of the fourteenth century. The 1407 and 1409 decrees In 1407 the aldermen and council of Kampen decreed some new rules concerning jettison, overloading and piracy.50 Several changes were made with regard to jettison. First of all, freight was now due for cast and saved goods. Second, the valuation of the merchants’ goods was altered from being stated under oath to being established by taking the average between the cost and selling prices, also subtracting freight and other costs relating to their carriage. Finally, the method of setten was introduced for the valuation of the ship. The Kampen Town Law is the only law that includes the payment of 49 50

GAK, OA, no. 5, f. 18r. GAK, OA, no. 5, f. 39r.

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freight for cast goods. This payment is combined with the contribution of the skipper with both his freight and his ship towards the compensation of the cast goods.51 The other two mentioned subjects are also considered in the Ordinancie. Landwehr therefore suggested that the method of setten was adopted from the Ordinancie, as was mentioned in Chapter 2, but it was actually already in use in Kampen for the sale of ships (Article 1). That this method was now also prescribed for the valuation of vessels after jettison may have been influenced by the practice at other towns by the Zuiderzee, but it was certainly not adopted directly from the Ordinancie. The valuation of the merchants’ goods was perhaps changed in 1407 because the interpretation of the older regulation had caused confusion in legal practice. It is unlikely that this part was adopted from the Ordinancie, when the rest of the regulation is very different from the article in that law. The other new rules included in the 1407 decree also show little resemblance to relevant regulations in the Ordinancie; the subject of piracy is not dealt with in the latter at all. In 1409 a decree was passed by the aldermen and council regulating the accountability of skippers and merchants towards their ‘reijders’ (shipowners/owners of goods).52 Both were to render account of all their journeys. This decree makes it evident that the large businessmen were powerful in the council and the town: the decree clearly favours them. It also indicates that the skipper had become an employee of the shipowners in the fifteenth century, and that the rich merchants sent out assistants to do their business abroad.53 None of this was laid down in the fourteenthcentury Ordinancie. Neither Kampen decree therefore appears to have been influenced by the contents of the Ordinancie. The practice of jettison was to some extent brought into line with regulations in the Ordinancie, but significant differences remained. The new regulations laid down in Kampen in 1407 and 1409 may, however, have found their way into the practice of other Zuiderzee towns, or may indeed have been influenced by customs in these towns but none of these had been drawn up in the Ordinancie. The Gulden Boeck When the Gulden Boeck was compiled shortly after 1416 only minor changes were made to the contents of the sea laws. As regards jettison, the texts of the Boeck van Rechte and the decree of 1407 were combined (Article 5) and the regulation about money transported on the ship was omitted from this 51

52 53

See Chapter 2. Only Article 7 of the 1505 printed edition of the Gotland Sea Law also provides for freight to be paid for all goods. GAK, OA, no. 5, f. 42r. See Chapter 1. Similar regulations can be found in the 1434 Hanserecess: HR 2, I, no. 321, § 21.

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article.54 The possibility of merchants carrying money on their person was taken into account separately (Article 6), whereas the costs of the different pilgrimages were listed in Article 7.55 As regards shipwreck, the geographical restrictions (‘under Enghelant’) of the 1372 rule were deleted to create Article 29. There is one addition to the Gulden Boeck that may have been influenced by the contents of the Ordinancie. Article 17 regulates the payment of a pilot hired to navigate the Zuiderzee (‘binnen land’).56 The article is dated 29 November 1400 but is not included in the Boeck van Rechte. The text of the article is similar to that of Article 23 of the Ordinancie, although it appears not to be directly copied from it: Item wat schepe comen int Vlie of int Mersdiep van ommeland ende hier op willen weesen, ende ist dat men dair en leydsman winnet, dat schip ende guedt hier op te bringhen, des sal die schipper de leidsmanne den cost gheven, ende die cooplude scolen den leidsmanne lonen van eren guede.57 (Ordinancie) Soe wat schipheren int Vlye, int Mersdiep off in anders enighe havene binnen lands comen ende enen loetsman wynnen op te segelen, so sal hem die scipheer den cost gheven ende die coepmanne zoelen dat loen betalen. Ende dit is te verstaen bynnen lands cleyne lodzmandze.58 (GB) It is likely that the drawing up of this rule was influenced by the practice among the Zuiderzee towns. Whatever the case may be, a common rule certainly existed from 1400 as regards the payment of an inland pilot. In conclusion, Kampen’s laws had little in common with the rules drawn up for the Zuiderzee towns in the Ordinancie despite a geographical proximity, frequent trade connections and the common experience of living by an inland sea. The oldest surviving Kampen Town Law was recorded around the same time or shortly before the Ordinancie (the second to third quarter of the fourteenth century), but there were only a few similarities particular to these Zuiderzee laws. More importantly, there were some significant differences as regards jettison and divergent aspects were dealt with concerning ship collisions and shipwreck. In 1407 the practice as regards jettison in the Kampen Town Law became more similar to that described in the Ordinancie, but the main difference remained. The 54 55 56 57

58

GAK, OA, no. 6, f. 19r. GAK, OA, no. 6, ff. 19r; 19r–19v. GAK, OA, no. 6, f. 22r. ‘And when vessels coming in the Vlie or the Marsdiep from outside wanting to come here and a pilot is hired to bring a ship and its goods here, the skipper shall give him board and the merchants shall pay the pilot from their goods.’ ‘So what shipmasters come into the Vlie, the Marsdiep or in any port inland and hire a pilot to sail, the shipmaster shall give him board and the merchants shall pay his wage. This is to be understood for inland or small pilotage.’

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changes that were introduced were not influenced directly by the contents of the Ordinancie, but perhaps by the practice in the other Zuiderzee towns. The same appears to be the case with regard to the only significant addition to the sea laws introduced in the Gulden Boeck. Overall, the Kampen laws appear to have developed largely in isolation without any major developments from elsewhere. Lübeck The relationship between the Hamburg Ship Law and the Lübeck Sea Law has already been mentioned.59 The existence of a letter from Hamburg informing the Lübeck council how it regulated certain maritime questions indicates that the two towns discussed legal problems. Indeed, when Hamburg was founded in 1188 it initially received Lübeck law and although the town eventually developed its own laws, a legal connection between Lübeck and Hamburg remained throughout the Middle Ages.60 In this section, this relationship will be analysed further in order to establish the extent of Hamburg’s influence on the formation of Lübeck law and vice versa. Another focal point will be the connection between the Lübeck Sea Law and the maritime regulations in the town law in order to explain how these two collections functioned side by side. Did they indeed regulate shipping in different geographical areas, as has been suggested, and did they complement or contradict each other? The final section will be dedicated to analysing the contents of the Ordnung für Schiffer und Schiffsleute and the Hanseatic statutes. The 1259 letter from Hamburg to Lübeck The 1259 letter was drawn up in response to a complaint from two Lübeck representatives about articles of the Hamburg sea law, called scipseghelinghe, which, according to them, were too severe (‘pergravis videretur’).61 First of all, they considered the salvage money awarded to the crew for saving the cargo after a shipwreck to be too high. The Hamburg council replied that a lower reward would lead to a diminished willingness of the crew to assist in the salvage. Another question concerned the salvage of gold and silver. The letter stated that the Hamburg law did not yet include regulations considering this question, as it was drawn up at a time when merchants did not yet ship such valuables. The Lübeck council was therefore free to lay down 59 60

61

See Chapter 1. Around 1225 a Latin town law was developed, but the use of Lübeck law was still confirmed to Hamburg after that date. The town certainly had its own town law by 1270. Ebel, Lübisches Recht, 30. The date of the letter has been established by Hohlbaum in HUB I, no. 538, n. 4 (p. 189), on the basis of the names of the two Lübeck negotiators mentioned, who were active in Hamburg in that year. The letter itself is undated.

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its own law: ‘as regards silver and gold, you may ordain that which you see fit and reasonable’.62 Other subjects covered in the letter were jettison and ship collision, the regulation of which was discussed in Chapter 2.63 Finally, it was established that if a merchant filed a complaint against a skipper, the latter’s oath was sufficient to prove that he had delivered certain goods to an agreed recipient. At the end of the letter, Hamburg requested that the Lübeck councillors inform it of any changes made to the discussed rules which they thought so pergravis. Although the letter stated the immediate cause behind its dispatch (the complaint of two Lübeck representatives), many questions arise as to the precise circumstances that led to it being drawn up and about the legal relationship that existed between Hamburg and Lübeck at this time. Kiesselbach argued that the letter was sent because Lübeck merchants had complained about the amount of salvage money they had had to award Hamburg crew members when their vessels, loaded in Hamburg, had wrecked.64 This does not, however, explain why other rules were dealt with as well. The end of the letter rather suggests that Lübeck had adopted some Hamburg laws, or was in the process of adopting them. An earlier communication, whether oral or written, official or unofficial, must have preceded the 1259 letter. In this communication the Lübeck representatives had asked for clarification regarding some of Hamburg’s laws. Landwehr argued that this legal discussion was prompted by recent changes to the law, such as the inclusion of the ship in the compensation of jettison.65 He suggested that the additions to the 1257 Reval manuscript of the Lübeck Town Law were the immediate cause for the inquiry from Lübeck. The changes to the contribution to jettison may have been controversial in the town at that time.66 Jettison is, however, only dealt with briefly in the letter and not in the first instance. If it had been the main point of discussion, it would surely have warranted more elaboration. Moreover, the new rule concerning jettison was not added to the Reval manuscript until after 1263. The rule in that letter is also much clearer than that quoted in the 1259 letter, which is rather ambiguous and can be interpreted in two different ways. Finally, the other subjects handled in the letter were ignored in the Reval manuscript. Landwehr’s explanation is, therefore, not entirely convincing. What can be gathered from the letter is that Hamburg by that time maintained a sea law known as scipseghelinghe, that Lübeck had shown an interest 62

63 64

65 66

‘Propterea super argentum et aurum quicquid vobis fore congrui videtur et rationabile, poteritis ordinare.’ See Chapter 2. Kiesselbach, ‘Grundlage und Bestandteile’, 78. It is important to remember that Lübeck ships did not originally sail from Lübeck to North Sea destinations. Goods were transported to Hamburg by land and shipped by sea from there. See Chapter 2. Landwehr, Haverei, 48.

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in this law and that it sought clarification on some of its rules and thought others too severe. The Hamburg council allowed Lübeck to change the Hamburg sea laws, which indicates that the Lübeck council planned to adopt them. The text about ship collision in the letter shows clear similarities to the regulations in the Lübeck Town and Sea Laws (Articles 132 and 23 respectively), but these were only added to the laws several years later (see Table 4.2). The stipulation on jettison was added to the Lübeck Town Law shortly after 1263, followed by others until 1275. Salvage is not regulated in this law, but it is dealt with in the Lübeck Sea Law. The amounts of salvage money stipulated in this law are, as is to be expected, lower than those in the Hamburg law. Based on this evidence, the 1259 letter does not appear to have had any direct influence on the development of maritime law in Lübeck.67 The Lübeck Sea Law of 1299 vs the older Hamburg Ship Law Lappenberg concluded that despite apparent similarities, there were clear differences between the Lübeck Sea Law and the Hamburg Ship Law.68 Nevertheless, subsequent authors have argued that the Hamburg law was completely or largely adopted in Lübeck, and that only nine articles in the Lübeck Sea law originated in Lübeck.69 When comparing the two laws, one has to conclude that Lappenberg was right, although it is important to keep in mind that the oldest surviving copy from Hamburg of its Schiprecht dates from 1301/6, whereas the Lübeck Sea Law is a few years older. Changes could therefore have been made to the Hamburg law between 1299 and 1301/6.70 The oldest surviving copies of the Hamburg Town Law from 1270 do not contain the shipping law. It is probable, therefore, that the latter was a separate entity until it was added to the town law in the late thirteenth or early fourteenth century. The first sentence of the Ship Law suggests the same: ‘The common council and the burghers of the town of Hamburg have ordained and proclaimed this shipping law.’71 From this it appears that the shipping law had been ordained and proclaimed separately. That the 1259 letter stated a name for the law (scipseghelinghe) confirms this. Kiesselbach may have been right in concluding that this separate shipping law originated from the merchants’ hanse, but his assumption that this hanse was in charge of the sea law and the administration of maritime

67 68 69

70 71

See also Goetze, ‘Der Anteil Lübecks’, 131, who has come to the same conclusion. Schiffrechte Hamburgs, ed. Lappenberg, cxli–cxlv. Wolter, Schiffrechte der Hansestädte, 30; Landwehr, Haverei, 8; Landwehr, ‘Seerecht im Hanseraum’, 97; Goetze, ‘Der Anteil Lübecks’, 132. This important fact was kindly pointed out to me by Professor Götz Landwehr. ‘De meine raet unde dhe borghere van der stad van Hamborch hebbet dit schiprecht ghewilkoret unde uth ghegheven.’ Hamburg 1301/6, art. 1.

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justice until the Schiprecht was added to the town law is unconvincing.72 The fact that the Hamburg council allowed Lübeck to change the Hamburg laws in 1259 indicates that the town council had jurisdiction in maritime law. As such, the earliest Latin versions of the town law may already have included articles on sea law, like early versions of the Lübeck Town Law did. These were at some point perhaps combined with regulations from the merchants’ hanse. The earliest version of the Hamburg Town Law with a section on sea law is the 1294/7 copy from Riga. This includes the oldest surviving form of the Hamburg Ship Law. Compared to the version from 1301/6, Articles 1–14 and 17–19 are missing, as is a large part of Article 16 (see Table 5.1). Articles 2 and 14 are unique to the Riga copy. Article 2 may have been drawn up in Hamburg, but if it was, it was omitted in later copies. Article 14 originated in Riga. The text of the Riga articles is almost verbatim the same as the relevant sections of the Hamburg copy. The wording of these sections of the Hamburg law therefore appears to have remained unchanged between 1294/7 and 1301/6. This means that any verbal differences between the Lübeck Sea Law drawn up in 1299 and the 1301/6 Hamburg Ship Law are the result of changes made by Albrecht von Bardewik when he edited the Hamburg law for his version of the Sea Law. Variations in the number of articles between the three versions may have arisen because articles were omitted when the law was copied by Riga or Lübeck, or because articles were added to the original Hamburg Ship Law after it had been copied by these two towns. The second option seems the more likely of the two, although the first cannot be completely ruled out.73 This does mean that seventeen articles were added to the Hamburg Ship Law within a few years and in two stages (between 1294/7 and 1299 and between 1299 and 1301/6), suggesting a lot of activity in legal development in Hamburg at this time. A comparison of Article 16 on windegelt, which is the cost of the loading and unloading of goods, literally the price for the hoisting of the goods or for the use of the hoisting crane, illustrates that parts were added rather than deleted. In the Hamburg copy the article is wide-ranging, listing the costs for the hoisting of a large amount of goods. There is a note at the end that all sums should be understood to be in English currency (‘Unde al is id bi englischen ghelde gheseghet’). In the article there is, however, mention of Flemish and Hamburg coins too. In the copy from Riga the text is much shorter and divided into two articles, 3 and 4. The Lübeck version is somewhat longer and split into Articles 19 to 22. In both the Riga and Lübeck regulations, all the sums are in English money. The note about currency thus fits these older versions of the regulation, but not the revised text 72 73

Kiesselbach, ‘Grundlage und Bestandteile’, 81, 83. This was kindly suggested to me by Professor Götz Landwehr. Cf. Schiffrechte Hamburgs, ed. Lappenberg, cxli.

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Table 5.1: The articles of the Hamburg, Lübeck and Riga Sea Laws compared. Hamburg 1301/6

Lübeck 1299

Riga 1294/7

I II III IV V VI VII VIII IX X XI XII XIII XIV XV XVI XVII XVIII XIX XX XXI XXII XXIII XXIV XXV XXVI XXVII XXVIII

I – II, VI V, XLI VIII – IX VII X – XI, XXVIII, XXXI XII XIII XVI XVIII XIX–XXII (parts missing) XXVIII (first part missing) – – XIV, XVII XXIII XXIV XXXII–XXXIV (added parts) XXV XXVI XXVII XXIX XXX

– – – – – – – – – – – – – – I III–IV (large parts missing) – – – V (second part missing) VI VII VIII X (first words of XXV) IX (first words of XXIV) XI XII XIII

Italicised numerals indicate that the article deals with the same subject as the Hamburg version. Not used in the table are Lübeck 3, 4, 15, 35–40, 42; Riga 2, 14.

in the Hamburg copy. The section including the Hamburg and Flemish denominations must therefore have been added at a later time, rather than having been deleted for the Lübeck and Riga copies. In the Lübeck copy a few words may have been added by von Bardewik, as they do not appear in the 1301/6 text. Alternatively, they may have been omitted when that copy was made. The articles that were not included in the Riga manuscript (Articles 1–14 and 17–19) must therefore have been added to the Hamburg law after the copy for Riga had been produced. A comparison with the Lübeck Sea Law indicates whether these additions were made either before or after 1299. Table 5.1 lists the articles in the Lübeck and Riga laws as they correspond to those in the Hamburg Ship Law of 1301/6. The Lübeck articles that con-

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sider the same subject as regulations in the Hamburg Law, but which have no textual similarities to them, have been italicised. The table shows that of the articles missing from the Riga copy, only Articles H7, 9, 11, 12 and 13 were definitely used by von Bardewik when drawing up L9, 10, 11/28/31, 12 and 13 respectively. This is illustrated by a comparison of articles H13 and L13: Id ne mach och nen schiphere sin schip vor sunte Mertines daghe oplecghen to winterlaghe sunder der vruchtlude willen. Na sunte Mertines daghe ne scal och nen schiphere to der she seghelen to der vruchtlude willen.74 (H13) Et ne mach ok nen schiphere sin schip vor sunte Mertines daghe up lecghen to winter laghe sunder der vruclude willen. Na sunte Mertines daghe ne schal oc nen schiphere to der se seghelen et ne si er beider wille des schipheren unde siner vruchlude.75 (L13) Articles H2, 6, 10, 18 and 19 were definitely not used by von Bardewik and were therefore probably added to the Hamburg law after 1299. Articles H5 and 17 show slight similarities in their wording to L8 and 28, but these may be coincidental, as the regulations concern local judicial custom: It ne mach nen man nen ordeil beschelden in der morghensprake: he ne moghe id besetten mit v verdinghen, unde so we dat beschelt de scal id denne to Hamborg oppe dat hus theen.76 (H5) It ne mach nemen en ordel beschelden in der banch vor deme oldermanne: he ne moghet bewisen mit ener marc silvers jofte he nedervellich wert de ghene de dat ordel beschilt. Unde so we dat be schelt, de schallet to Lubeke then uppe dat hus vor dhen sittenden rat.77 (L8) 74

75

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Hamburg 1301/6, art. 13. ‘And no skipper may store his ship for winter before Saint Martin’s Day without consent of the merchants. After Saint Martin’s Day, no skipper shall sail to sea without the merchants’ consent.’ Lübeck SL, art. 13. Instead of ‘without the merchant’s consent’: ‘unless it be the will of both the skipper and his merchants’. The introduction of the will of the skipper in this article does not indicate an important change. The consent of the skipper was most likely simply omitted in the Hamburg version because it was considered obvious (see Chapter 2). The wording of the Lübeck Sea Law is more precise in several articles, without actually changing their meaning. Hamburg 1301/6, art. 5. ‘No man may appeal against a judgement in the morning meeting: he will have to pay a fine of five “verdinghen”; whoever appeals, shall do it in Hamburg at the town hall.’ Lübeck SL, art. 8. ‘No man may appeal against a judgement at the bench before the ‘olderman’: he will have to prove with a mark of silver if he who appeals against the judgement is ‘nedervellich’(?). Whoever appeals, shall do it in Lübeck at the town hall before the sitting council.’

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The remaining articles (H1, 3, 4, 8 and 14) all have counterparts in the Lübeck law which deal with roughly the same subjects (L1, 2/6, 5/41, 7 and 16). The wordings of these texts are, however, different, and there are no indications that von Bardewik used these articles for his sea law. Von Bardewik replaced Article H14 on shipwreck with the regulations from the Lübeck Town Law (Article K230): So wor so ein schip tobricht unde komt mit dheme brokenen schepe also vele to lande also dhe vrucht wert is, dar scal de schiphere sine vrucht afnemen.78 (H14) So wor en schip to breck unde bringhet de bodeme ene iewillicken vruchmannes ghudes also vele to lande dattet sine schipvrucht betalen mach, de schal gheven sine schipvrucht. Deme aver neghen ghut to lande ne cumt, de darf neghene schipvrucht betalen.79 (L16) So wor lude winnet en schip unde dat schepet mit ereme gude, brecht dat schep uppe der reise unde bringhet dhe bodheme enen gewelken vruchtmannes gude also vele tu lande dat he gheven moghe sine vrucht, he schal gheven gance schephvrucht. Deme oc neghen gut to lande ne kumt, dhe ne darf neghene schepvrucht gheven.80 (K230 (first part)) Bardewik also substituted H21 with K132 (L23). Article H20 on salvage was replaced because, as we have seen with regard to the 1259 letter, Lübeck merchants were not prepared to pay as much salvage money as those from Hamburg. As regards the regulations for the hanses in Flanders and Utrecht (H1–5, L1–6, 8), it has always been assumed that the Lübeck articles were based on those in the Hamburg Ship Law, even though there are no textual resemblances: So welc use borgher kumt in Flanderen unde hevet he also vele copschattes also xiij sol. englis oder mer, he scal gheven enen schilling englis to hanse unde twe penninghe vlamis user vrouwen sunte Marien [. . .]81 Unde van desseme ghelde dat men aldus to hanse ghift scal de olderman unde dhe dhenne dar sin dhe twe deil vordoen na eren 78

79

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Hamburg 1301/6, art. 14. ‘Where such a ship breaks and so much comes to shore with the broken ship as the freight is worth, the skipper shall take his freight thereof.’ Lübeck SL, art. 16. ‘Where a ship breaks and the hull brings so much of each merchant’s goods to land that he may pay his freightage, he shall give his freightage. But he to whom no goods come to shore shall not have to pay freightage.’ Lübeck TL, art. 230. ‘Where people rent a ship and load it with their goods, and this ship breaks along the journey and the hull brings so much of each merchant’s goods to shore that he may give freight, he shall give full freight. Also, to whom no goods come to land, he shall not have to pay freightage.’ Left out is a section about the hanse in Utrecht.

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willen unde den dridden deil scal men in den bloc lecghen to nutschap82 (H1) So wellich man de unse borghere is de to Vlanderen cumt in de havene de dat Swen gheheten is, de egenes ghudes also vele hevet an copmanschap alse xiij scillinghe enghelsch eder mer, de schal gheuen xij penninge enghelsch to hense. Der schal men de twe del lecghen in de bussen dat recht mede to sterkende unde dat unrecht mede to werende unde dat drudden del van den xij penninghen enghelschen schal de olderman unde de hense brodere blidelicken vor don na ereme willen83 (L1) That the surviving Lübeck text is actually older than that from Hamburg would rather suggest that these articles originated in Lübeck itself and that the Hamburg council was possibly even influenced by Lübeck in its decision to add the regulations of their hanses in Flanders and Utrecht to its shipping law. That a large part of the Lübeck Sea Law was based on the Hamburg law does not imply that the remaining part, which shows only minor similarities, was copied from this law as well. The detailed comparison carried out above has shown that Lübeck did not slavishly adopt Hamburg’s law, but instead used the text of its laws as a model for the creation of its own sea law.84 This exercise does indicate that the regulations in both towns were similar; Lübeck would not have accepted laws that were completely foreign. This similarity in law and the close relationship between the towns (indeed, Hamburg had still used Lübeck law in the first half of the thirteenth century) leads to the conclusion that it was not unlikely that Hamburg was in its turn influenced by Lübeck or that it was a mutual decision to include the rules of the hanses. The three discussed laws from Hamburg, Lübeck and Riga show three phases in the development of the Hamburg Ship Law. The Riga codex contains Hamburg law, as it is an almost exact copy of the Ship Law. It was probably not adopted as a whole in Riga, but instead was used to create the revised Riga Town Law in the early fourteenth century. The Lübeck copy, 82

83

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Hamburg 1301/6, art. 1. ‘So which of our burghers comes to Flanders and has merchandise to the value of thirteen English shillings or more, he shall give one English shilling to the hanse and two Flemish pennies to Our Lady Saint Mary [. . .] And of this money that is thus given to the hanse, the alderman and those present shall spend two parts to their will and the third shall be put in the chest for the common good.’ Lübeck SL, art. 1. ‘So, a man who is our burgher and comes to Flanders in the harbour that is called Swin, and who has goods of his own as merchandise worth thirteen English shillings or more, he shall give twelve English pennies to the hanse. Two parts of this shall be laid in the box to strengthen the law and to go against injustice and the third part of the twelve English pennies shall be spent kindly by the alderman and the hanse brothers to their will.’ Bardewik copied quite a few articles verbatim (H7, 9, 11–13, 15, 16, 22–24, 27 and 28), sometimes making small changes. Some articles were replaced (H14, 20 and 21), a few supplemented (H11 and 23) and many added (L3, 4, 15, 35–40 and 42).

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on the other hand, contains Lübeck law; that a text of Hamburg law was used as a basis for about half of its articles does not alter this fact. Other influences on Lübeck maritime law It has recently been suggested that Lübeck and Hamburg in their early history used the Rôles d’Oléron and that the Lübeck and Hamburg laws contain additions or supplements to these laws.85 This theory is unconvincing for a number of reasons. First of all there is no indication that the Rôles d’Oléron, which were used in the wine trade between France and Flanders, England and Scotland, had reached northern Germany by the thirteenth century. In fact, the compilation was not put into writing until 1286 or shortly before and was only translated into Flemish/Dutch in the early fourteenth century. Combined with the Ordinancie in the Waterrecht, the text only reached the Baltic in the fifteenth century, when Hamburg and Lübeck had long developed their own laws. Indeed, there is no evidence that Lübeck owned a copy of the Waterrecht before 1500. If the Rôles d’Oléron were used in these towns, surely copies of these laws would have been made at an earlier time? Even if the customs that were valid in western Europe had reached Hamburg and Lübeck orally before their compilation in the Rôles in the second half of the thirteenth century, some evidence of this would have existed. It is unlikely that Hamburg and Lübeck would only have put the additions to the customs in the Rôles into writing, but not the customs themselves. Second, as has been shown in Chapter 2, the Hamburg and Lübeck laws contain regulations that deal with the same subjects as the Rôles d’Oléron, at least with regard to the important themes discussed in this study, but in a decidedly different manner. As both the Rôles and the Hamburg and Lübeck laws in their current forms were developed around the same time, and the former are occasionally more concise than the latter, as previously discussed, it is unlikely that the German laws are updated versions of the French regulations. Finally, it is more likely that any influence on the development of Hamburg and Lübeck law came from actual trading partners from the Baltic and North Sea areas, such as Scandinavian and Frisian merchants. The argument that Scandinavian laws deal with joint ventures, whereas both the Rôles and the Hamburg and Lübeck laws discuss relations between the four separate groups of skipper, shipowner(s), merchants and crew, and that the Scandinavian tradition must therefore be seen as separate is not relevant.86 In both the Rôles and Hamburg laws it can be recognised that relations aboard ships had only changed recently, when the laws were 85 86

Jahnke, ‘Hansisches Seerecht’, 55–9. Cf. Jahnke, ‘Hansisches Seerecht’, 56.

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drawn up.87 Joint ventures probably existed throughout northern and north-western Europe until developments in the thirteenth century. It is more likely, then, that Lübeck in its early history, as most of its citizens hailed from landlocked Westfalia, would have looked to nearby Schleswig for maritime regulations, as has been suggested by Ebel.88 Only during the thirteenth century, when Lübeck’s merchants started to gain more maritime experience themselves, were rules drawn up to regulate their expanding activities in the Baltic and North Sea. This happened, as has been shown, partly in cooperation with Hamburg. The Lübeck Sea Law vs the Lübeck Town Law Considering Lübeck’s expanding activities in maritime trade in the thirteenth century, it is noticeable that the Lübeck Sea Law only appeared in 1299 when an increasing, but still relatively small, number of maritime regulations had been part of the town law since the 1240s.89 So why was the Lübeck Sea Law not drawn up a few decades earlier? And why was a separate sea law created in 1299 when a small number of maritime regulations continued to remain part of fourteenth-century editions of the Town Law? It has often been suggested that the Lübeck Sea Law was drawn up to be used for North Sea shipping (or for shipping to Flanders), whereas the maritime regulations in the town law concerned Baltic trade.90 Indeed, some of the articles of the former specifically name Flanders as the intended destination: ‘a man who is our burgher comes to Flanders in the harbour that is called Swin’ (Article 1), ‘when a ship comes in the Swin’ (Article 11), ‘If a skipper lets his crew member off without a lawful break [of contract] in Flanders’ (Article 28).91 In Article 36 it is named as the starting point of a journey to the Sound: ‘If a ship sails from Flanders to the Øresund’.92 With regard to this latter example, it is remarkable that the Lübeck law actually mentions sailing through the Sound from Flanders, as the town is generally considered to be against the ommelandvaart, since it profited from the transportation of goods by land or river from Hamburg to Lübeck. Most of the articles do not include geographical restrictions. These were 87 88

89

90

91

92

See Chapter 2. Ebel, Lübisches Recht, 133. With regard to the inexperience of Lübeck merchants, see Jahnke, ‘Hansisches Recht’, 56. A separate sea law in Latin may have existed in Lübeck before 1299. Like the Latin manuscripts of the Town Law, it may have been destroyed when it became redundant (in 1299). There is, however, no evidence of this. Landwehr, ‘Seerecht im Hanseraum’, 97; Goetze, ‘Anteil Lübecks’, 131; Wolter, Schiffrechte der Hansestädte, 30; Quellen zur Hansegeschichte, ed. Sprandel, 391; Reincke, ‘Die ältesten hamburgischen Stadtrechte’, 10, n. 7. ‘wellich man de unse borghere is de to Vlanderen cumt in de havene de dat Swen gheheten is’; ‘wanne ein schip in dat Swen cumt’; ‘Gift ein schiphere sinen schipmannen orlof sunder witliken broke in Vlanderen’. ‘Seghelet ock ein schip van Vlanderen in den Noressunt’.

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therefore probably written to be used more generally. The fact that Flanders is specifically named in some of the regulations and not in others rather suggests that only these, and perhaps the following articles with a similar theme, were restricted to shipping to and from Flanders. Nonetheless, the 1299 Sea Law as a compilation may still have been written to be used by those involved in North Sea shipping, even if many of the regulations had a more general validity. This general validity is confirmed by the fact that two of its articles were for a large part copied from the Lübeck Town Law (L16 = K230 (on shipwreck) and L23 = K132 (on ship collision)) and that the regulations regarding jettison and the cutting of mast and ropes were similar in both laws, although the text was copied from the Hamburg law (L24 = H22, K89 and 153). These regulations were certainly not written solely for North Sea shipping since Lübeck was a Baltic port. Moreover, it is hard to believe that the Lübeck court would judge its own skippers and merchants differently based on which sea they had sailed. Besides the abovementioned points of agreement between the Lübeck Sea Law and the maritime regulations in the Lübeck Town Law, there are no further similarities between the contents of the laws. The regulations in the Town Law considered subjects like the hiring of ships and boats, the term in which a ship had to be unloaded in Lübeck and the process of giving testimony before the ship’s court. Together with jettison, shipwreck and ship collision, these were themes that were relevant within the town’s bounds when agreements had been made between skippers and merchants, when a case could be settled by the skipper in Lübeck’s harbour or when a matter was brought before the town court. The Sea Law, on the other hand, generally dealt with themes that were relevant during the journey and when ships arrived in foreign ports: rules of conduct at the Flemish hanse, rights and duties of the crew, salvage of goods during the journey, costs for loading and unloading goods and the overloading of a vessel. This distinction between the two laws makes only a very general rule; some of the articles from the Sea Law would have fitted well into the Town Law, and vice versa. One does wonder why all maritime regulations were not simply adopted in the Sea Law. The coexistence of the Lübeck Sea Law and the regulations in the Lübeck Town Law must be considered in the light of a general reluctance on the part of the Lübeck council to write down or systematise its laws, contrary to the activity of the Hamburg council who, in 1270, 1301/6 and again in 1497, edited and revised its laws. The appearance of the sea law in 1299 was probably mainly due to the zeal of one man, Albrecht von Bardewik. Between 1300 and 1350 only a few additions were made to the Town Law but until the appearance of the revised Lübeck Town Law in 1586 after repeated urging by its satellite towns no new changes were introduced. As regards maritime law the regulations in the Town Law and the Lübeck Sea Law were meant to be used simultaneously, as both contained different laws. These could then be supplemented by the rules in the Ordnung für

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Schiffer und Schiffsleute from the first half of the fourteenth century and the Hanseatic statutes from the late fourteenth century. The Ordnung für Schiffer und Schiffsleute and the Hanseatic statutes Whereas the regulations in the Lübeck Sea Law regarding the crew mainly stated the responsibilities of the skipper towards them, the Ordnung für Schiffer und Schiffsleute laid down rules of conduct for the crew itself. Most of the rules are additions to those in the Sea Law; only Articles 1 and 5 of the Ordnung show some similarities to Articles 7 and 9 of the Sea Law respectively. The Ordnung thus filled a gap that had probably become apparent in (legal) practice. Problems with the crew occurred often, as is also indicated by the repeated complaints that eventually led to the Hanseatic Schifferordnung of 1482. The Ordnung was thus an important tool for skippers to better control their crew. The laws were drawn up for Lübeck specifically and do not appear to be influenced by any other law. Hanseatic statutes generally came into being as a reaction to specific problems that had arisen in maritime traffic and which were brought up in the Hanseatic meetings. Altogether, twenty-five maritime regulations can be found in the Hanserecess of 1447. These deal with themes such as duties of shipowners towards the Hanse, those of skippers towards shipowners and the powers of skippers to discipline their crew. As mentioned above, Lübeck often devised these statutes, which were then presented to the other Hanseatic towns for confirmation.93 In some cases, Lübeck’s authorship is clearly recognisable and occasionally it pushed through statutes that had previously met with opposition.94 To secure acceptance of the 1482 Schifferordnung, for example, Lübeck only presented it for confirmation to the other Wendish towns. One of the articles was also sent to Danzig, by then an important competitor to Lübeck, accompanied by a letter stating the importance of such statutes and appealing for approval. Receiving confirmation from both Danzig and the Wendish towns, the Ordnung was subsequently ordained as general Hanseatic law.95 The Hanseatic statutes were thus largely regulations favoured by Lübeck. Danzig As related above, the Danzig council gathered a large collection of sea laws in the fifteenth century, which are compiled in two manuscripts devoted to maritime law. The most interesting element of this collection is the section including judgements from Danzig’s own court, drawn up between 1425 and 1436. Because of the availability of one copy of the Waterrecht 93 94 95

See Chapter 3. This is, for example, the case in the statute of 1417. Goetze, ‘Der Anteil Lübecks’, 136–7. Goetze, ‘Der Anteil Lübecks’, 140; Landwehr, ‘Seerecht der Hanse’, 35–6 and 40.

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from 1407, and a second from 1429, these Danzig judgements will be compared to the regulations collected in this compilation in order to establish whether the Danzig council was influenced by these regulations when the judgements were drawn up. Before that, the contents of the Danzig by-laws concerning maritime law will be discussed briefly. The by-laws (Willkür) When Danzig was amalgamated with the Prussian territory in 1308, the Teutonic Order already controlled the Willkürrecht of the Prussian towns.96 Danzig was probably subjected to this control too, although its statutory rights were not mentioned in the 1342/3 charter granted to the town by the Order.97 During the remainder of the fourteenth century, the towns’ Willkürrecht remained a question contested by Danzig and the other large Prussian towns.98 From the early fifteenth century, when the Teutonic Order slowly started to relinquish power over the towns, these towns sometimes managed to pass by-laws without the Order’s consent. There are examples of this even from the late fourteenth century. From this time the Rechtsstadt Danzig probably succeeded in passing most or even all of its by-laws autonomously, although statutory rights were never granted formally by the Teutonic Order.99 In 1455 Danzig gained full Willkürrecht from the Polish king. Because the inhabitants of the towns were expected to abide by the by-laws, these were read out to them every year. Thus, they could also learn of any changes introduced to the laws. In 1394 the Grand Master ordered a particular land by-law to be proclaimed at the town hall of the Prussian towns every year. Such an order can also be found in the oldest and second oldest Willkür from Danzig.100 There is one article concerning sea law in the land Willkür that was imposed by the Polish king. It is one of two articles that cannot be traced back to any of the older statutes of the Teutonic Order.101 Article 25 laid down that if a seaman ran off with his pay, this would be considered theft and he would lose his life.102 The town Willkür dealt with sea law and related matters in sixteen articles (101–16). The contents of these are divided over twenty-one articles in the second oldest Willkür (133–53), which include 96

97 98 99

100 101 102

By the Kulmer Handfest for Kulm and Thorn of 1233 the Teutonic Order had initially granted the towns a relatively high level of independence as regards self-government. When the towns grew and became increasingly more powerful, however, the Order sought to reduce these rights. Biskup, ‘Der Deutsche Orden und die Freiheiten’, 119. Simson, Danziger Willkür, 13. Biskup, ‘Der Deutsche Orden und die Freiheiten’, 126 Czaja, ‘Preussische Hansestädte und der Deutsche Orden’, 64–5. Simson, Danziger Willkür, 6. Simson, Danziger Willkür, 8–9. Ibid. 17. Article 25 in the oldest and second oldest Willkür.

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some additions. Most of the by-laws are local regulations that concern the building of ships, the harbour and the loading and unloading of goods. A few by-laws regulate the rights and duties of sailors. Article 109/144 is a repetition of Article 25 of the land Willkür. None of the articles regulated shipwreck, jettison or ship collision. For these subjects, we need to turn to the judgements in Waterrecht manuscript 1. The judgements in Waterrecht manuscript 1 Waterrecht manuscript 1 contains a small collection of fifteen judgements dealing with maritime law that were drawn up in the 1420s and 30s. In some of these the actual legal case in which the judgement had been passed was described but in only two cases were the names of the parties involved given. In others a normative rule was written without any reference to a specific case. At the start of Judgement 6, for example, it is stated that the council had enacted the following as regards jettisoned goods (‘van geworpenn gude hefft de raed besloten und uthgespraken’). These rules consisting of Judgements 2–6 were therefore probably enacted for hypothetical cases (Weistümer) and were not directly based on actual lawsuits.103 These Weistümer and the judgements passed in actual cases could both be used as precedents; it was considered irrelevant whether a case was decided in a concrete case or in a hypothetical one.104 A large portion of the judgements concern the matter of freightage, which confirms that this subject was dealt with regularly in the town courts. Several different questions of freight were considered: after shipwreck (no. 2), if the skippers decided to winter after a ship had already been loaded (no. 3), if a ship had to return to harbour to be repaired and a merchant decided to look for alternative transportation (nos 4 and 10) or if he wanted to unload his goods after the vessel had sailed (no. 5), after jettison (no. 6) and after a shipwreck if a skipper had received part of the freight in advance (no. 8).105 Other judgements dealt with liability when a ship came from the shipyard with a leak (no. 9), liability after salt was spoilt in bad weather (no. 13) and wages for seamen when a ship was sold (no. 14).106 Some articles deal with situations in which the skipper returned to the harbour because problems had occurred at sea, or sailed into port because of an emergency. The Vonnesse van Damme and the Ordinancie provided the skipper with the opportunity to repair his ship for the purpose of finishing a voyage to honour agreements made between him and the freighters. The same applies in Judgement 4. If a merchant decided to unload his goods 103 104

105 106

For the sake of clarity, all fifteen articles will be called judgements here. Diestelkamp, ‘Reichsweistümer als normative Quellen’, 310; Ebel, Geschichte der Gesetzgebung, 16. APG, 300, R/Fq, 1, ff. 18v; 18v; 19r and 22v; 19r; 19v; 21r. APG, 300, R/Fq, 1, ff. 21v; 25r; 25v.

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after the ship had been repaired, he was liable to pay half freight. Similarly, it was laid down in Judgement 10 that when a merchant unloaded his goods without need, but only for his own profit, he would have to pay full freightage. If the skipper could find a new load to replace this merchant’s, only half freight was due. According to Judgement 1, moreover, the skipper was obliged to finish his journey after having sailed into an emergency port, unless the merchants gave him permission to unload their goods.107 The payment of freightage after shipwreck was handled in Judgement 2. When a ship was wrecked in or just outside the harbour, the merchants were liable to pay half freight for goods that were salvaged, but if the ship had been out of sight of the port (‘affkennyngh des landes’), full freight was due. As discussed in Chapter 2, this rule differs from those laid down in the copies of the Vonnesse (Article 4) and the Ordinancie (Article 1). The latter stated that full freightage was due for salvaged goods. The Rôles d’Oléron, on the other hand, stipulated payment of freightage pro rata itineris, but this section was not always translated effectively in the Dutch texts.108 The text in Danzig’s 1407 copy is a good example of this: ‘den vracht also verre alst dien meester ghenoeghet’ (‘a freight as far as the master pleases’).109 The town’s other fifteenth-century copy, which arrived around the time that the judgement was recorded (1428–9), is much clearer: ‘de vracht also verne alse dat schipp gedan sal hebben de reyse upp dat dem schipper genoget’ (‘a freight as far as the ship will have completed of the voyage so that it pleases the skipper’).110 If this copy did indeed arrive in Danzig at about the same time as the Danzig judgement was passed, it is unlikely that the relevant article of the Vonnesse and the full-freight rule from the Ordinancie were applied in legal practice. The arrival of the 1429 manuscript may, however, have brought about a change in the regulation of this subject in Danzig. Indeed, both the Vonnesse and Judgement 2 laid down a freight related to the distance travelled, be it in different ways. That a judgement was drawn up on this subject may suggest that a change was recently introduced. Whether the full-freight rule from the Ordinancie or Article 4 of the Vonnesse were adopted at a later time will be established in Chapter 7. As regards jettison, Judgement 6 provided that all saved goods should contribute to the compensation of any lost goods. Again, if the ship had been out of sight of the port, full freightage was due for the salvaged goods. If some of the skipper’s rigging and gear had been saved, these should also be included in the contribution. There is no mention of the ship in this regulation. Whether the ship was indeed excluded from the compensation in Danzig practice, which would be very unusual for the fifteenth century and unlikely since the ship’s rigging was included, or whether the 107 108 109 110

APG, 300, R/Fq, 1, ff. 17v–18r. See Chapter 2. APG, 300, R/Fq, 1, f. 30r. APG, 300, R/Fq, 2, f. 2v.

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contribution of the ship was considered self-evident will have to be determined by analysing this practice in the last chapter. The Danzig rule does not show any particular similarities to the regulations in the Vonnesse and the Ordinancie. The question of the payment of freight after jettison is not dealt with in Article 8 of the Vonnesse, nor was it explicitly regulated in the Ordinancie (Article 4). It rather seems to have come forth from actual cases handled by the town court. Judgement 12 from 1434 finally considered ship collision.111 The text describes a case in which a ship coming from Flanders collided with a vessel lying anchored near Danzig carrying wine and other goods. This vessel and some of its cargo were damaged. The council judged that if the skipper and two of his crew would swear that the collision was unintentional, the former would be liable for only half the damages to the goods. The other half were due to be reimbursed by the merchants on the damaged ship; the costs would be divided among them in the same way as damages after jettison (‘gelik werpegude’). The damages to the ship were divided equally between the two skippers. This judgement was very similar to the regulation in Article 15 of the Vonnesse. Both articles handled the same situation, namely that in which a ship collided with another lying anchored resulting in wine and other goods being spoiled. Both laws laid down that the damage to the ship should be divided equally among the two vessels and that the saved goods on the damaged ship should contribute to the lost cargo. In the Vonnesse the goods on the colliding ship were also included in the reimbursement of the lost goods, whereas in the judgement from Danzig the merchants on this ship appear to have been indemnified from any claims.112 The division of the damages of the goods is therefore slightly different in the two laws, but this difference may not have been so clear to medieval eyes. The oath of skipper and crew to release the skipper from guilt was included in both laws. Considering that the judgement was drawn up in 1434, a few years after the arrival of the second copy of the Waterrecht, it is possible that the judgement was based on Article 15 of the Vonnesse, which it resembles closely. Again, a change in the regulation may have caused this judgement to be recorded. The question remains why it was recorded when a similar rule was already available in writing. It suggests that the copy of the Waterrecht was not utilised in its entirety, but only as seen fit by the council. The collection of judgements, on the other hand, was made for specific use in court. Comparing the Danzig judgements and the first two copies of the Waterrecht, it is possible to conclude that the 1429 copy was used to draw up some of the judgements, but certainly not all. As regards ship repairs the 111 112

APG, 300, R/Fq, 1, f. 24v. Possibly this was considered something between the merchants and the skipper on the colliding ship and not subject of the conflict handled in court in this matter.

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judgements show an extension; a change to the regulation of the payment of freight may have been influenced by the arrival of the second manuscript. Concerning jettison the court was not influenced by the Waterrecht; in the case of ship collision it probably did make use of the Vonnesse. The Waterrecht thus seems to have been used as a source of inspiration in drawing up the judgements, but only the latter represented legal practice at the town court. The Waterrecht was only utilised as seen fit by the council. Whether this remained the case throughout the fifteenth century will be analysed in the final chapter. Conclusion The use of the Kampen sea laws, which were part of the town laws recorded in the Boeck van Rechte and the Gulden Boeck, was restricted to the town where they originated. Because the Ordinancie came into being in Kampen’s fellow towns on the Zuiderzee coast, a comparison between the Kampen Town Law and the regulations in this law was undertaken. Despite certain similarities in the subjects handled, which could be ascribed to the shared circumstances of navigating an inland sea, there were important differences as regards content between the Ordinancie and the earliest version of the town law. A few of these differences disappeared in 1407, when some changes to the Kampen laws were introduced, but the main variations continued to exist. The contents of the Ordinancie had no direct effect on the changes introduced, but some mutual influence may have occurred in legal practice. Considering the closeness between the Zuiderzee towns, this influence was, however, minimal. Kampen thus maintained its autonomous position and did not conform to the laws of the other Zuiderzee ports. In the past authors have attributed a large influence on the creation of the Lübeck Sea Law to Hamburg. Hamburg’s letter to Lübeck of 1259 suggested that the two towns discussed matters of maritime law at an early date. The precise circumstances that led to the correspondence remain largely unknown, but the letter indicated that this was not the first time that the towns exchanged information about the law of the sea. By 1259 Hamburg was already using a shipping law known as scipseghelinge. Lübeck showed an interest in this law and perhaps planned to adopt some of its rules. It appears from the letter that Lübeck did not agree with all the Hamburg regulations and had requested clarification on some, and that Hamburg allowed for the laws to be changed by Lübeck. Considering the Lübeck laws that appeared soon after 1259, the Hamburg rules do not seem to have been directly adopted in the written laws. The regulations may, however, have been used to create a Latin sea law for North Sea shipping, which may have been discarded when the Low German version came into use. A comparison of Lübeck Sea Law and Hamburg Ship Law indicates that von Bardewik directly copied about half of the Lübeck Sea Law from the Hamburg Ship Law, making minor changes where necessary. The

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articles from the other half of the law were not based on the Hamburg law, although some of them regulated similar subjects. The Hamburg and Lübeck laws were thus partly alike, which can be attributed to the towns’ close legal and political relationship, controlling trade from the Baltic to the North Sea. The towns were, however, also two clearly separate and autonomous entities and differences in the laws therefore remained. Danzig’s judgements were compared to the regulations in the Waterrecht, of which a second copy arrived around the time the judgements were drawn up (1425–36). The judgements regulated a few subjects that were not dealt with in the Waterrecht and also provided an extension to some of the rules laid down in that compilation. Two judgements showed a possible influence of the arrival of the second manuscript. The rule regarding ship collision was very likely based on the Rôles d’Oléron. A change to the regulation of the payment of freightage after shipwreck may also have been influenced by that law, although the Danzig judgement continued to vary from its regulation. The judgements were thus for a large part unique to Danzig and their use remained restricted to this town’s court. There were no towns legally dependent on Danzig, although the latter did function as a central maritime court for Prussia from the early fifteenth century, and for Poland from 1457. The need to draw up these judgements was probably a result of this function and, in this context, the judgements will have been utilised to pass decisions in cases from other towns. The role of each of the three towns on the northern European stage again becomes apparent when considering these conclusions. The town of Kampen was legally autonomous without any satellite towns. It had its own unique sea law, which was not drawn up according to those of the other Zuiderzee ports nor disseminated beyond the town bounds. Lübeck used part of Hamburg’s laws to gain influence on North Sea shipping but adapted the laws to make them their own and thus distinguish them from the Hamburg Ship Law. Danzig’s judgements were largely unique and came forth from its position as the central court for a large area. The town council had to administer all maritime cases in Prussia and Poland and in this context its judgements were written down for future use. As Danzig was the sole maritime court in the area, there was no need to spread the judgements elsewhere. This detailed comparison of the contents of these local sea laws has confirmed the conclusion reached in the second chapter that the written laws of northern Europe did not contain uniform rules at any time during the Middle Ages.

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Legal Practice: the Administration of Maritime Justice The administration of maritime justice in general was conducted on two levels. Although this study focuses mainly on the practice of maritime law in the town courts, justice was also administered on board ships. As there is almost no information about this practice, as it was oral in nature, only a few comments can be made on it here. In Article 85 of the Lübeck Town Law (‘Van tuge in schepes richte’; see Table 4.2) it is laid down that, when a complaint was brought before the skipper and others on board ships, and judgement was passed by the shipmaster, the case did not need to be taken to another court.1 This article was included in the Town Law between 1263 and 1275. None of the other written laws refers to the jurisdiction of the skipper. Although the Lübeck article does not specify which cases could be taken before this ship’s court, the shipmaster’s jurisdiction would have been restricted to matters in which he himself was not involved. Most of these cases would have concerned discipline on board. That groups of skippers requested additional regulation concerning this subject repeatedly in a Hanseatic context throughout the fourteenth and fifteenth centuries, resulting in the Ordnung für Schiffer und Schiffsleute and the 1482 Schifferordnung, indicates that they administered justice in these cases themselves.2 It also suggests that shipmasters required assistance from the law to maintain discipline on their ships and could not stipulate rules themselves. Town courts, on the other hand, could formulate laws if none were available in writing.3 The cases concerning shipwreck, jettison and ship collision 1

2 3

‘So we umme schult to vorderende, oder umme ene andere sake, kumt an en schip und klage rort vor deme schipherre mit den luden deme klegere na schepes rechte. Umme schult oder umme andere sake, de gene de dese schult oder dese sake vorderet, de ne is nicht plictich ienege tughe anders vor to bringende.’ Lübeck TL, art. 85. Jahnke suggests that the article should be taken to mean that complaints in connection to transport or trade over sea were decided by the skipper as a rule, and not by the town court. Jahnke, ‘Hansisches Seerecht’, 58. Though I agree that this article confirms that the skipper had some jurisdiction in ‘shipping law’, the article does not stipulate that these cases had to be judged by the skipper. In fact, cases of, for example, jettison, could not be handled by the skipper as, according to the Rôles, oaths had to be taken that his casting overboard of the goods had been necessary. Oléron, art. 8. See Chapters 1 and 4. In a letter from Amsterdam to Bremen, which was a reply to a request for legal advice, the former replied that it could not find an answer to this specific question in its written laws,

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examined in this study can be expected to have been dealt with by the town courts, and it is this urban administration that is the focus of analysis here. Who administered justice? The administration of maritime justice in the ports of northern Europe was generally undertaken by the immediate town councils. Other civil cases were also dealt with by lesser courts, but maritime matters were handled exclusively by the council in most northern European towns. This indicates that the rich merchants and shipowners manning the council preferred to keep the administration of such cases, in which they themselves were often involved, in their own hands and that they considered these cases of sufficient importance to be reviewed by the full body of councillors. Merchants and shipowners sitting on the council would at this time have been the most knowledgeable with regard to maritime law. These laws had come forth from practice, had been written in the vernacular and, as yet, no learned maritime lawyers existed. The suggestion that urban courts were ‘non-specialised’ is therefore unjust, at least with regard to civil cases.4 In Scotland, maritime cases were supposed to be handled by the bailie court according to the burgh laws.5 This is confirmed by the Aberdeen sources, although such matters were also occasionally dealt with by the guild court or by the admiral deputes in an admiralty court.6 It is unclear whether there was any specific reasoning behind the decision to put a specific case before the guild or admiralty courts rather than the bailie court. The officers of these courts would all have been part of Aberdeen’s ruling elite, so in practice it would probably not have mattered much which court dealt with a particular case. However, as mentioned in Chapter 3, there does appear to have been occasional struggles as to who was competent in maritime matters in the sixteenth century. There is no evidence of this in the fifteenth-century sources. Sometimes the council, or members thereof, was present when a decision regarding certain legal actions, such as oaths and the valuations of ships, was taken, but judgements regarding maritime matters were generally passed in a bailie court. The decisions were made by assizes (juries).7

4

5 6

7

but that the Amsterdam court always reached decisions using reason when this was the case. HUB X, no. 344, 27 Sep 1474. Ward, World of the Medieval Shipmaster, 27, suggests that ‘technical difficulties’ among other things began to prove too much for non-specialised courts, referring to local/urban courts. He then provides examples of a case of beach robbery and one of piracy, both of which belonged to the king’s jurisdiction and not to that of local courts. Ward, World of the Medieval Shipmaster, 27–8. LQB, art. 25. For example: ACA, ACR, V.i., p. 127, Curia admirallatus, 13 Sep 1451; ACA, ACR, V.ii., p. 692, [Curia gilde], 16 Dec 1444. See further below.

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Appeals could be lodged before different courts: the Court of the Four Burghs or a council of all the burghs of Scotland, the Lords of Council or parliament. Sometimes cases were referred to higher courts before a judgement was passed. This was the case when matters were considered especially delicate or when the Aberdeen judges felt incompetent in a particular case.8 In Kampen, both the aldermen and the council considered maritime matters. The body of aldermen and council also functioned as the highest court in the town. In Lübeck civil cases could either be taken before the Niedergericht or the council, but maritime matters were handled solely by the latter. The council also operated as the highest court in the town itself and as a court of appeal (Oberhof ) for cases from the towns that had been granted Lübeck law, such as Reval, Elbing and Rostock. In Reval, maritime cases were also dealt with by the council. Reval burghers were granted the privilege to appeal against decisions from their council before the Lübeck Oberhof. They were generally allowed to appeal by post, contrary to burghers from other towns, but this was a favour that had to be confirmed by Lübeck time and time again. The functioning of the Lübeck council as a court of appeal will be discussed further below. The Prussian towns residing under the Teutonic Order, apart from Elbing, had been granted Magdeburg/Kulm law. This law provided for a Schöffengericht, an aldermen’s court, as the highest court in the towns. The Danzig council was, however, granted the privilege to become the central maritime court for the whole of Prussia in the late fourteenth or early fifteenth century. This position will be discussed in more detail below. Functioning as a central court for Prussia, the Danzig council also operated as the highest instance for maritime cases for its own burghers. Whereas the question as to who administered justice in a particular town is easy to answer, the problem regarding which town court was competent to pass judgement in a particular case is much more difficult to solve. Although one would expect this to have caused regular problems in supranational shipping ventures in which skippers, merchants, shipowners and crew from several different towns could be involved, there is little evidence of such irregularities.9 In general, opposing parties appear to have argued very little when deciding which court to go to. A good example is the case, discussed further later in the chapter, in which a ship caught fire near the Norwegian coast on its way back from Bergen to Kampen, and in which a Staveren skipper and Lübeck merchants were involved.10 This case was taken to the Lübeck court. Similarly, an Amsterdam skipper and three 8 9

10

See Chapter 7. Jahnke suggests that this is because all courts would have based their decisions on the same laws, but as it has been shown that this was not the case, a different explanation needs to be found. Jahnke, ‘Hansisches Seerecht’, 65. AHL, ASA Kanzlei, NStB (Reinschrift) 1481–1488, f. 265r (LRU I, no. 321), 21 Aug 1484.

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Kampen merchants agreed to bring their case before the Danzig court because their ship had foundered near there.11 In cases in which a conflict did occur, this conflict concerned the question of which law applied, rather than which court to use. Three examples of such problems appear in the sources. In one of these cases the question of which law applied was linked to the question of which court to use, as the choice was between Wisby and Riga law, knowledge of which would not have extended to other courts. In the other two cases the choice was between local and maritime law, both of which were utilised by the same court. The first example is documented in a letter from Alt-Stettin to Riga sent on 21 August 1425.12 A skipper from Alt-Stettin, Merten Jawerk, had loaded goods in Flanders which were to be brought to a burgomaster and some burghers in Riga. Unfortunately, the ship was wrecked near Gotland. Part of the cargo was salvaged and carried to Riga by alternative transport. The town council in Wisby, which reviewed the case, decided, in accordance with the Wisby Town Law, that the merchants were liable to pay half freight for the lost goods and full freightage for the salvaged cargo. Jawerk subsequently went to Riga to demand his freightage from the merchants, but they wished to be subjected to Riga instead of Wisby law. Considering both laws, it is easy to understand why the merchants preferred to be judged according to Riga law. This law stipulated that freightage was only due for salvaged goods and not for any that were lost. Judging by the existence of this letter from the Alt-Stettin council on behalf of Jawerk to the town of Riga, the skipper did not receive the desired freightage from the Riga merchants. The outcome of the case is unfortunately not documented. Another case in which a conflict occurred concerning the question of which law applied in a particular matter is from Danzig. In 1435 the Großkomtur of Danzig referred a case to the town council because one of the two parties involved wanted to be subjected to the ‘waterrecht’, a law which the Grand Master and the komtur were not sufficiently familiar with. The other party requested to be judged according to Kulm law. The Großkomtur asked the Danzig council to decide which of the two laws applied in this case and refer it to the relevant court.13 It is noteworthy that the court had to choose between the sea law and Kulm law in this matter, as the latter does not contain any maritime regulations in its written form. Again, no information has survived concerning the outcome of the case, nor are the exact circumstances elaborated upon. A third example concerns the seizure of goods related to a journey at sea. This case was dealt with by the Lübeck court after an appeal from Stralsund. Again, both parties wished to be judged according to different laws. The plaintiff preferred the ‘waterrecht’ to be used, whereas the 11 12 13

APG, 300, D/20, 234, Amsterdam to Danzig, 27 Oct 1486. HUB VI, no. 594, 21 Aug 1425. APG, 300, D/39, 57, Grand Master to Danzig, 19 Mar 1435.

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defendant thought ‘lubesch rechte’ should be applied. The Lübeck court decided that because the seizure had taken place within Stralsund’s jurisdiction, and Lübeck law was used there, the matter should be considered ‘myt lubeschem rechte’.14 This comment suggests that the town laws were only valid when the activities related to a case had taken place within the town’s jurisdiction but, as the first example has shown, this was not necessarily the case. Nor is there any other evidence to support the suggestion. The comment therefore rather establishes the precedence of Lübeck over maritime law in towns ruled according to this law. From the above examples, it appears that the only matter that occasionally caused debate between the parties in a legal matter was the question of which law should be applied rather than which court was competent.15 Why, then, did a common supranational law, or communal regulations at least, not come into existence? For a system of law to function there needs to be either an authority that can implement laws from above or a community of people who swear an oath to abide by a law. Neither of these existed on a supranational level in medieval northern Europe. The Hanseatic League comes closest to the definition of an international organisation that could formulate a common law, but it always remained a loose federation of towns which were either autonomous or subject to different lords, and had no power to implement such a law.16 Every statute that was released had to be confirmed by the council of each individual town in order to become valid in that particular place.17 Having compared the laws of important Hanseatic towns such as Lübeck, Hamburg, Danzig and Riga, it has become apparent that these larger towns especially attached great value to being able to draw up their own laws. No efforts to devise a general Hanseatic law were therefore made until the late sixteenth century. If it had been possible for the Hanseatic League to implement such a general law for the Hanseatic towns, non-Hanseatic towns would still have been subject to other jurisdictions in England, Scotland, Denmark, and so on. This patchwork of jurisdictions in medieval northern Europe made the coming into being of a supranational law or a common maritime court impossible. Indeed, even today in the European Union, international laws only exist in restricted areas; many national regulations continue to exist and differ from each other. The question remains how parties decided before which court they would bring their case, especially when burghers from several different towns were involved. In general, the cases appear to have been dealt with 14 15

16 17

LRU IV, no. 239 (AHL, Cod. Ord. Lub., no. 189), 10 Oct 1483. Discussions about which law to use also appear in English legal practice, though this was sometimes combined with the question regarding which court was competent. Ward, World of the Medieval Shipmaster, 82–3. See also Frankot, ‘Jurisdictions in the law of the sea’, 166–8. See also Chapter 3.

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by the court of either one of the parties, the place of departure or arrival or, especially in cases of damage to ship and/or goods, at a port nearest to the accident site. The Alt-Stettin skipper pleaded his case before the Wisby court because his ship was wrecked near Gotland. He did, however, subsequently have to travel to Riga to claim his freightage from the merchants who had not accompanied their goods. The Staveren master of the ship that burnt off the coast of Norway went to Lübeck, because the merchants involved lived there. The claimants probably chose a court for practical reasons because it was in their best interest to receive any claimed sums of money as soon as possible.18 That a different law from the claimant’s own may have been valid at this chosen court was in general probably not much of an issue. The note in the Kampen Town Law (mentioned in Chapter 2) supports this. The Kampen town council expected its burghers to subject themselves to foreign laws when abroad, even though it supposed these laws to be different from its own. This is also confirmed by a case from Kampen in which a skipper stated that he wanted to abide by the law of the place where his ship foundered, even though some of his crew wanted to know what the Kampen law provided for in this case.19 In the opposite case a Scottish act of parliament, as we have seen, stipulated that, with regard to the law of wreck, goods would only fall to the king if the law of the place of origin of the wrecked vessel corresponded to Scottish law. If it did not, the law of that place would be applied.20 Having to deal with different customs and uses was inherent to medieval international trade, and merchants and skippers probably thought nothing of bringing their matters before the court of a foreign port where they had normally been granted equal rights to a fair trial as resident traders. Lübeck’s council as court of appeal for Reval The granting of Lübeck law to a town included the right to use the Lübeck council as Oberhof. This was stipulated in the Lübeck Town Law for the first time in the 1270s but had been valid before then, as it is mentioned in some of the charters granting Lübeck law, such as those of Oldenburg (1236), Kiel (1242), Elbing (1246) and Dirschau (1260).21 The article is included in the 1282 Reval manuscript: 18

19 20 21

There is little evidence in the sources from legal practice that maritime cases were dealt with particularly swiftly compared to other cases. The Scottish burgh laws (art. 8) do mention a term of three tides for the handling of cases between foreign merchants and this rule was referred to once in a recorded case (ARA, ACR VI, p. 547, Curia burgi, 25 Sep 1478), see also below. No evidence for this survives for the remaining four towns, although quick justice will surely have taken place. GAK, RA, no. 6, f. 129v, [1489]. See also below. RPS, 1430/19, accessed on 9 March 2009. See also Chapter 4. Ebel, Lübisches Recht, 110.

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If in the towns or in the wicbelden where our law is [valid] someone finds a judgement that is passed before the council and that he wants to appeal against: if he has found this [judgement] from the council to be unlawful, he may appeal against it before our council.22 Appealing against the judgement of a court was a practice first introduced in German town law. In land law, it was possible to protest against a verdict that was suggested by the lawfinder before the judge made it final; any man present in the court could object at this stage. Another court would then be called to decide in the matter between the objector and the lawfinder. When this case was resolved, the lawsuit would be remitted to the first court where the judge would pass a final judgement in the original case. Because of the disappearance of the office of lawfinder in the town courts, the proceedings in these courts changed.23 The town council would deliberate in private after the parties had presented their case, and would pass judgement by majority. The burgomaster would then declare this decision publicly. If the case was appealable, an appeal had to be lodged immediately after the judgement had been delivered.24 This could only be done by either one of the parties.25 In the thirteenth and fourteenth centuries, as well as for most of the first half of the fifteenth century, pleadings were conducted orally. The parties would present their case in person and the deliberations and decision of the court remained unrecorded. Only from the late fourteenth century were lawsuits in some towns documented through short entries in a town book (Stadtbuch; stadboek) or court register. Only a few towns kept such registers in the fifteenth century.26 Appeals also were therefore mostly handled orally. In the Lübeck court of appeal both parties (or their representatives) had to start by reiterating the judgement passed in their home town. If the 22

23

24

25 26

Lübeck TL (1282), art. 112 ‘van ordele’: ‘Wert in den steden oder in den wicbelden dar unse recht is gevunden iemende en ordel, dat wiset men vor den rat ofte he dat besceldet. Wert it eme den so gevunden van dem rade dat it eme nicht recht ne dunket, so mach het beschelden vor unsen rat.’ The word schelden refers to the dismissal of a found judgement which has not yet been passed, and is therefore not strictly an appeal, also because the judgement from the Lübeck council needed to be confirmed by the home court. Weitzel, Über Oberhöfe, 9–11. A case is considered an appeal by most authors when a judgement had been passed before the appeal was lodged against it, even when a verdict still needed to be confirmed by the home court, which was the case in Lübeck (for example, Ebel, Lübisches Recht, 106; Ebel, ‘Der Rechtszug nach Lübeck’, 17) and I will therefore use this term here. For this reason, Lübeck at some point refused to give decisions in undecided cases. Ebel, Lübisches Recht, 112. Cf. Chapter 3, n. 49 about the Niedergericht. Some cases were unappealable, for example those that were regulated by a local by-law that was only valid in Reval or another town that utilised Lübeck law. Ebel, Lübisches Recht, 122–4; Ebel, ‘Rechtszug’, 30–3. When a party appealed, it would have to pay caution money, in case it was proved wrong in having appealed. Von Bunge, Gerichtswesen, 115; Ebel, Lübisches Recht, 114. Ebel, Lübisches Recht, 112–13; Ebel, ‘Rechtszug’, 20. Ebel, Lübisches Recht, 113; Ebel, ‘Rechtszug’, 20.

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parties disagreed on this matter, they were sent away again to agree on the judgement.27 The Lübeck council was not concerned with issues of fact, only with issues of law. This meant that the Lübeck court would only pass a decision on the question of whether the law was applied correctly.28 This decision would again be made public orally. From the fifteenth century, when cases were sometimes registered in the Niederstadtbuch, a written statement of the decisions could also be provided.29 In order to become legally valid, the verdict had to be taken on by the town court in which the appeal had originally been lodged. Lübeck was not constitutionally superior to her ‘daughters’; her superiority concerned only the content of the law, and the verdicts still had to be confirmed by the court where the case had been considered in the first instance.30 Because of the distance of Elbing and Reval from Lübeck, burghers of these towns were allowed to appeal to the Lübeck Oberhof by letter. In Elbing this was laid down in a by-law, which was confirmed by the Grand Master of the Teutonic Order when he finally permitted the town to use the Lübeck council as a court of appeal in 1343.31 For Reval the situation was different. Although the town was allowed by Lübeck to send appeals by post on repeated occasions, this was considered a privilege that could be withdrawn at any time and was not to be taken for granted. In 1366, for example, Lübeck replied to a written appeal from Reval that the Oberhof would decide on the matter as soon as the two parties presented their case before its court personally. Reval then requested that its burghers be permitted to appeal to the Lübeck council in writing, as had been allowed before, since the road to Lübeck was long and dangerous.32 Similar examples can be found throughout the fourteenth and fifteenth centuries and regularly either Lübeck or Reval stressed that appealing by post was a favour granted by the former and not an obligation towards the latter.33 Indeed, Lübeck sometimes even refused to accept these ad hoc arrangements, stating that it was not its custom to write about its laws.34 This latter comment fits in with the apparent reluctance of the Lübeck court to revise its written laws discussed in Chapter 5. 27 28

29 30 31

32

33 34

Ebel, Lübisches Recht, 115–16; Ebel, ‘Rechtszug’, 25–6. According to today’s definitions, this means that Lübeck functioned as court of cassation. Simon, ‘Appellationen von Reval’, 117. Ebel, Lübisches Recht, 117; Ebel, ‘Rechtszug’, 25. Ebel, Lübisches Recht, 119; Ebel, ‘Rechtszug’, 27. Before 1343 the town had often pleaded with the Teutonic Order to allow this, but to no avail. As far as Lübeck was concerned, appeals against judgements passed according to Lübeck law could only be dealt with by the Lübeck court, especially if they concerned subjects not regulated elsewhere. Ebel, Lübisches Recht, 110. Ebel, Lübisches Recht, 120, n. 25; Ebel, ‘Rechtszug’, 28, n. 119. Unprinted source, calended in the Katalog des Revaler Stadtarchivs by Von Hansen and Greifenhagen, III. Abt., nos 281–2. Ebel, Lübisches Recht, 120. For example, LECUB, no. 1579 (c. 1390): ‘dat it unse wonheit nicht en is, dat wi unse recht plegen van unse to scrivende’, no. 1625 (19 May 1403) and no. 1881 (11 May 1411). Cf. with the reluctance of Lübeck to record its laws (Chapter 5).

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Around three hundred written appeals about various subjects survive in the sources from the late fourteenth and fifteenth centuries. These appeals were always drawn up by the Reval council and included an account of the lawsuit held before its court stating complaint and defence, the verdict and requesting a decision from Lübeck.35 Two copies were usually sent in case one of them was lost. The earliest responses from Lübeck were generally quite short, recording only the council’s decision or tersely confirming the original verdict: ‘That which you have decided in that case, we hold as the law’.36 Short descriptions of cases and original judgements were included in the later letters. These letters were sent to the council in Reval which would then pass the judgement in court orally. The same practice was applied when burghers from Narva and Wesenberg appealed to the Reval court.37 A study of the appeal registers from Lübeck has led Ulrich Simon to conclude that Lübeck generally confirmed Reval’s judgements; only two out of sixty-two verdicts that he studied were changed. A third case, from 1486, is discussed below. Simon wonders whether this is because the Reval sentences were delivered in writing; he argues that the Lübeck court would sooner have been inclined to change a judgement presented orally like the other appeal cases.38 It is difficult to reach a conclusion on this, as these other appeal cases are not as well documented as those from Reval. Appeals from other towns that were recorded include only Lübeck’s decision and not the original judgement. The small number of appellant decisions that differed from the original verdict can also be explained by assuming that the Reval court applied Lübeck law correctly or that the Lübeck court generally considered the Reval judgements to be reasonable. As Chapter 7 will show, the law applied by the Lübeck court was not constant but dynamic, and adapted to each specific case. Danzig as a centre for the administration of maritime justice Danzig was an important centre of maritime justice from the first half of the fifteenth century. Not only did it correspond with other towns in the region regarding maritime law, but the town council was also appointed as the central maritime court in Prussia by the Grand Master and the joint Prussian towns. When exactly this occurred is unclear, but at a Prussian meeting in 1425 Danzig stated: as the eldest of the councils of the towns of this land will still know they [the Danzig councillors] were in the past ordered by the Grand 35 36

37 38

Simon, ‘Appellationen von Reval’, 50. Ebel, ‘Rechtszug’, 29. ‘Alse gij dar op gedelet hebben, dat holde wij vor en recht’. Ebel, Lübisches Recht, 121; Ebel, ‘Rechtszug’, 30. Von Bunge, Gerichtswesen, 127. Simon, ‘Appellationen von Reval’, 50.

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Master and the joint towns of this land to judge all cases and conflicts that arise between seafaring men, such as between skippers, merchants and seamen . . .39 An ordinance issued by the Danzig aldermen after 1422 similarly included a statement that ‘all cases regarding shipping and maritime law included in the “wassir recht” should be judged by the council, since the “common lands” have blessed it with this right’.40 As the Prussian minutes from 1425 suggest, the Danzig council received this right some years before 1425. At a meeting in 1397 plans had been discussed to set up a ‘Coufmansgerichte’, a merchant’s court.41 This could well be understood to mean a maritime court, because elsewhere the term ‘merchant law’ is used to indicate maritime law.42 Danzig may have been appointed as a central court as a result of this decision, that is to say in the latter years of the fourteenth or the early fifteenth century.43 However, no cases handled by the Danzig court before 1425 survive. And even after this date, in 1427, a case regarding freightage was dealt with by councillors of four of the Prussian towns, although the court was held in Danzig.44 This latter case involved a large number of ships that had been prohibited from leaving the port by the Grand Master, however, and was therefore probably considered important diplomatically. After 1428 the Danzig council was regularly requested to judge cases. In 1457 Danzig was granted the highest authority in all shipping matters and the jurisdiction in all maritime cases, including those concerning the law of wreck and piracy, by the Great Privilege of King Kasimir of Poland.45 As mentioned before, the council was in charge of maritime jurisdiction in Danzig and not the Schöffengericht as it had been elsewhere in Prussia. This is made apparent in two letters sent by the council in 1436. In that year a skipper, whose case had already been decided in 1431 according to the ‘waterrecht’, complained to the council that his opponent now wanted to bring the matter before an ecclesiastical court. The Alt-Stettin court had not acknowledged the Danzig judgement because it had not been passed 39

40

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42 43 44 45

‘alse den eldesten der rethe in den steten dis landes wol wissentlich ist das en in vorcziten von unser hern und der gemeynen stete wegen dis landes befolen ist, alle sachen vnd schelinge, dy czwischen den zeefarnden luten seyn, alse czwischen schippern, kouffluten und schiffskindern richten sullen. . .’. Akten der Ständetagen Preussens, ed. Töppen, i, no. 337, meeting in Marienburg, 14 Apr 1425. ‘Alle zachen, die von schiffahrt und zeefarende sachen seyn, die gehorn in das wassir recht und geborn dem rathe zcu richten wen das gemeyne lant sie domete begnadiget hat.’ As cited by Hirsch, Danzigs Handels- und Gewerbegeschichte, 75 (ordinance of the Danzig aldermen, after 1422). Marienburg meeting, 1 May 1397, as cited by Hirsch, Danzigs Handels- und Gewerbegeschichte, 75. HR 1, V, no. 185, Lübeck meeting of the Hanse, April 1404, § 16. Hirsch, Danzigs Handels- und Gewerbegeschichte, 75. Akten der Ständetage Preussens, ed. Töppen, i, no. 379, meeting in Danzig, 23 Aug 1427. HUB VIII, no. 563, 15 May 1457. Printed in Curicken and Curicken, Der Stadt Dantzig, 332.

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by ‘Richter, Scheppen und Geheget Ding’ (judge, aldermen and thing). The first letter sent to Alt-Stettin by Danzig in 1436 confirmed the 1431 judgement.46 The second stated that the council functioned as the maritime court in Danzig: that we have by order of our lord and by desire of the communal towns of the land in past years judged those cases touching upon sea law such as all kinds of conflicts between skippers, merchants and seamen about freight, hire and voering, about loading and offloading and still judge these today und not the Schultheißen and aldermen of our town.47 A letter from the bailiff and aldermen confirming this arrangement was included in the correspondence to Alt-Stettin. The council stressed that, until now, no one had questioned or disputed this right. Another reply was sent in December, when the case was again disputed in a letter from Stettin.48 The use of the written laws in court In Chapter 4 the collections of sea laws available in the later Middle Ages in each of the five towns were discussed. The presence of these collections does not, however, entail their use in court proceedings. In this section any direct evidence concerning the use of written law in court practice will be discussed by analysing the references to maritime law in general and specific law books in particular for each of the five towns. Aberdeen The Council, Bailie and Guild Court Registers constitute a rich source for Aberdeen legal practice. Proceedings of the courts were recorded on a regular basis. Although Dickinson concluded that the courts were in general reluctant to pass final judgements, this appears to have been less the case in maritime matters though it is unclear why a difference would exist.49 According to the burgh laws, such matters needed to be dealt with more swiftly if they involved ‘foreigners’ as these could not be expected to remain in town for very long.50 Most of the time assizes of ‘worthy men’ or 46 47

48 49 50

APG, 300, 27/2, f. 130r, Danzig to Alt-Stettin, 28 Feb 1436. ‘dat wy van befelinge unser heren und der Gemenen Stede des landis verlangen vorgangen jaren wat zaken dat water recht anroroende was, alse allerley schelinge tuschen schipperen, copluden und schepeskinderen, van fracht und van hure, van foringe, van inschepinge und uthschepinge gerichtet hebben und noch huden in den dach dat richten, und nicht de schulttisse und scheppen unser stad’. APG, 300, 27/2, f. 130v, Danzig to Alt-Stettin, 28 Feb 1436. APG, 300, 27/2, f. 155v, Danzig to Nicolas burgher of Alt-Stettin, 14 Dec 1436. Early Records, ed. Dickinson, cxxx. LQB, art. 8.

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‘honourable sworn personis’ were invited to pass judgement in maritime cases. These assizes, at least at times, consisted of merchants, skippers and, occasionally, helmsmen.51 On average, the assizes included about twelve men, although with a view to reaching a majority of vote, odd numbers were preferred.52 As an alternative to a full-blown lawsuit, cases were occasionally considered by a smaller number of people, through arbitration or amicable agreement.53 Presumably this happened more regularly than is evident from the sources, as such settlements would also be agreed upon orally. The ‘Lawis of schippis’ were not specifically mentioned in any of these cases. There is, however, one reference each to ‘leges aquarum’ and ‘Watter law’. The first term is used in an entry concerning freightage dealt with by the bailie court on 5 November 1454. The Aberdeen assize decided that the merchants were due to pay half freightage for an unspecified journey which had apparently not been completed. The verdict was delivered with the reservation that if the skipper returned within forty days with a letter from the burgh of Edinburgh (‘ubi leges aquarum habentur’), stating that the merchants were liable to pay full freight, the whole amount would have to be settled.54 The assize elected to pass judgement in this case was thus uncertain whether its verdict corresponded to the regulations in the ‘leges aquarum’. The Edinburgh council was deemed more knowledgeable in this case. Because of the variety of meanings of the word ‘habentur’ Edinburgh may either have actually ‘had’ water laws in written form, its council may only have ‘known’ the laws and been famous for its wisdom in such matters, or it may have been considered a higher court that ‘kept’ the laws.55 The entry certainly suggests that the Aberdeen court did not own a written copy of the ‘leges aquarum’. On 2 March 1490 the bailie court considered another matter of freightage. In a dispute between some merchants and the owners of a hulk, the assize decided that the merchants should be issued their goods, which would have been retained by the shipmaster awaiting payment of freight, provided they gave a surety to the owners ‘for alsmekile fraucht as the 51

52

53 54 55

In a case of 1449 the assize consisted of seven merchants and eight skippers, of which only the last two remained unnamed. ACA, ACR V.i., p. 68, Curia ballivorum, 28 Nov 1449. In a lawsuit from 1485 the assize was made up of twelve men, of whom three were specified as skipper and two as ‘stereman’. ACA, ACR VI, p. 904, Bailie court, 11 Feb 1484/5. Of six assizes of which the members were named, one each contained nine (1465), eleven (1468), twelve (1485) and fifteen men (1449), and two included thirteen men (1451 and 1478). With regard to uneven numbers in criminal juries, see Sheriff Court Book of Fife, ed. Dickinson, xcvi–xcvii. For example, ACA, ACR, V.i., p. 188, arbitration, 3 Oct 1453. ACA, ACR V.i., p. 216, Curia ballivorum, 5 Nov 1454. The entry mentions a letter of the ‘burgi de Edynburgh’, meaning the burgh (council) itself and not the Court of the Four Burghs or the Lords Council at Edinburgh, which will both appear below.

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auneris may optene of thame be the Watter law [for as much freight as the owners may obtain of them by the water law] in the Feire [Veere] or the Moy [Arnemuiden?]’.56 The entry does not specify who the parties were nor their ports of departure or destination. It is unclear, therefore, why the sea law of Veere or Arnemuiden (which may have been the Vonnesse van Damme or other customs valid in these towns) would have been relevant. In all likelihood, the parties were planning to take their matter to court there because one of them, or both, were from those parts. The burgh statutes were also occasionally named in the sources, although not in relation to maritime cases.57 The Leges Quatuor Burgorum were not explicitly mentioned in any of the relevant entries referred to. Before a burgh court of alderman and bailies, the forspeaker for a skipper from Stralsund requested the latter to be subjected to the ‘law of the said burgh [Aberdeen] . . . within thre tydis as sey farand men’, applying Article 8 which stipulated that cases involving at least one foreign merchant should be brought to a close within ‘the third flood of the sea’.58 The Scottish burghs would sometimes correspond with each other about the contents of the Leges Quatuor Burgorum. This confirms that a certain amount of uniformity existed in the legal practice of the burghs, and that the councils of the large towns themselves sought to establish this unity. In the late 1460s, for example, Aberdeen received letters from Perth, Edinburgh and Dundee about an inheritance case in which the latter two quoted Chapter 24 of the Leges Quatuor Burgorum which dealt with such cases.59 This and other examples show that the burghs owned copies of the burgh laws.60 In maritime cases a charter party, also called ‘condicione’ or ‘obligation’, was often referred to. As was laid down by the Scottish parliament in 1467, such contracts were normally drawn up as a conclusion of negotiations concerning freighting conditions. Only when disputes regarding the interpretation of a charter party occurred would parties appear before the court.61 Another reason would be that they had neglected to draw up such a document at all. This was the case in 1477, when a skipper and a merchant appeared before the court concerning the transportation of ‘a pak of wad’ (woad). In this cases the assize decided that the skipper should pay ‘a pipe 56 57

58 59 60 61

ACA, ACR VII, p. 170, Curia ballivorum, 2 Mar 1489/90. In 1444, for example, it was laid down that all trespassers of the law should be punished according to ‘the commoune law and the statutis of this burgh’. ACA, ACR V.ii., p. 691, In consilio, 13 Dec 1444. ACA, ACR VI, p. 547, Curia burgi, 25 Sep 1478. MacQueen and Windram, ‘Laws and courts’, 219. Early Records, ed. Dickinson, cxliii; APS, i, 723. The first instance in which a shipping contract is mentioned in the Aberdeen registers is in 1460: because the charter party was not available, the case was referred to the parties’ home courts (Edinburgh and Pittendreich). ACA, ACR V.i., p. 399, Alderman and council, 19 Jun 1460.

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fraght for the said wad, like as use and wount [custom] was tobe gevin til utheris skipperis’.62 Apparently, this was the customary rate for woad. In most maritime cases sentences were ‘concludit and deliverit’, ‘ordanit and deliverit’, ‘ordanit and gevin’, ‘determinaverunt et concluserunt’ or ‘fundin and deliverit’ by the different assizes and courts, suggesting that copies of written laws were seldom used in the Aberdeen courts. The only written laws that appear to have been available were the Leges Quatuor Burgorum, the town’s own statutes and presumably copies of the acts of parliament. In those matters in which the written laws provided insufficient solutions, judgements were ‘found’ by the juries in the different burgh courts. Cases were sometimes referred to other courts. Besides the mentioned lawsuit in which the assize was unsure whether its judgement corresponded to the ‘leges aquarum’, cases were also sent to higher courts before a verdict had been passed. In 1447 a case was forwarded to Edinburgh so that the parties could be subjected to the ‘avisis of the commissaris of hale [the full number of] burowez’, probably referring to the extended Court of the Four Burghs.63 In 1444 a case was postponed until the next general council where it could be dealt with by the ‘commissaris of burrowis’.64 In 1451 a case from the ‘Curia admirallatus’ was referred to King and Council ‘because the said mater belongis in a part to oure soverane lord the king and thai [the assize] have herd seildin [rarely] or never sic materez declarit’. The said matter was indeed one that needed the authority of the king: a vessel from Stralsund had been taken by a ship of war from the town of Dieppe.65 Considering the evidence, there appear to have been many paths along which a judgement could be reached in the Aberdeen town courts. Maritime matters were mostly decided by an assize in a bailie court which applied customary law and ‘found’ its judgements. Sometimes written burgh laws or local acts were used to pass a verdict. When the court was unsure which law should be applied, or felt incompetent to pass judgement, other towns were consulted or cases were forwarded to other courts. This could be the Edinburgh burgh court, which was considered more competent regarding the ‘leges aquarum’, the Court of the Four Burghs or, in delicate diplomatic matters, King and Council or the Lords of Council. Until 1454 at least, the Aberdeen court does not appear to have owned any written sea laws. There is no evidence that it did so after this date. Whether the Rôles d’Oléron, in their original or corrupted Scottish form, were adhered to nonetheless, will be discussed in the next chapter.

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ACA, ACR VI, p. 485, Bailie court, 22 May 1477. ‘Pipe fraght’ was the amount of freightage paid for a pipe, that is to say a wine cask, which was also used as a measure. See Chapter 3. ACA, ACR IV, p. 497, Curia ballivorum, 3 Nov 1447. ACA, ACR V.ii., p. 692, [Curia gilde], 16 Dec 1444. ACA, ACR V.i., p. 127, Curia admirallatus, 13 Sep 1451.

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Kampen That the sea laws in Kampen were supplemented and changed throughout the fourteenth and early fifteenth centuries suggests that the town council utilised its laws in cases of maritime law. Explicit evidence of the use of the written laws is, however, very scant. There are no specific references to the Boeck van Rechte, the Gulden Boeck or the Schiprecht. In fact, there is only one case in which the law is referred to at all. Around 1489 a testimony by two men about a discussion that had arisen aboard their ship was recorded in the Liber Testium. It concerned ‘what the law laid down regarding pilgrimage’ (‘wat dat recht were vander bedevart’). One member of the crew had been drawn by lot to go on a pilgrimage to Santiago de Compostela because the ship had been ‘in great distress’ (‘in groeten noeden’). In relation to this the question had been raised of what the law provided for such instances. Two men had then replied that, according to the law, three pounds ‘groten’ and one noble were due to be paid to the pilgrim. This does not correspond entirely to the rule laid down in the Boeck van Rechte (Article 3) and the Gulden Boeck (Article 7), in which three English pounds and three English shillings were stipulated, but this may be because these laws were recorded over a century earlier; prices would have changed since then. The skipper had replied, however, that he wanted to abide by the law of the land where the ship would run aground.66 No further mention is made of where the ship eventually landed, but that the testimony was made in Kampen indicates that the ship returned home. What is relevant in this case is that two of the men aboard the ship knew the Kampen regulations in detail. This shows that the law, although not in the form recorded in the two Kampen compilations, was used and thought important. It also indicates that the law was known among people aboard the ship besides the skipper. There is no direct evidence of the use of written law in the sources. The comparison of written law and court proceedings conducted in the next chapter will offer more information. Lübeck The judgements of the Lübeck town court are gathered in the Niederstadtbücher. In these only one explicit reference to Lübeck law was found. The town council in general declared its verdicts ‘vor recht’, which indicates that they established what was lawful in a particular case without referring to any written laws.67 In 1461 a merchant specifically asked the council to pass judgement according to Lübeck law in a case against a skipper (‘Begherende des van deme Rade vorscreven eyn Lubesch rechte 66 67

GAK, RA, no. 6, f. 129v, [1489?]. Diestelkamp, ‘Reichsweistümer als normative Quellen’, 309.

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afftoseggende’).68 As will be shown below, it was a Hanseatic statute that was actually used to decide this case.69 Specific laws were referred to more frequently in appeal cases. In a lawsuit of 1471 concerning the payment of freightage after shipwreck the Reval council had decided in favour of the shipowners, in accordance with the Hanserecess of 1447 (‘Dat recesz van den gemenen hanse Steden int jar XLVII’).70 The merchants then appealed to the court in Lübeck, which confirmed the judgement ‘na unseme lubeschen rechte’ (‘according to our Lübeck Law’).71 The same is referred to in a lawsuit dated 1482. In this case a salver had been ordered by the Reval court to return salvaged goods to their rightful owners in exchange for salvage money. The man subsequently appealed to the Lübeck court, but it confirmed the verdict, again ‘na lubeschen rechte’.72 Another relevant case was settled between a skipper and some merchants in 1486. The latter had refused to pay the former freightage after their goods had been damaged by storm and fire just outside the port of Reval. The Reval council decided that the merchants had to pay full freight. Alternatively, they could abandon their goods. When the merchants brought the case before the Lübeck court of appeal, it adjusted the verdict, according to the record, applying ‘lubeschen rechte’. In fact, a Hanseatic statute was used.73 This case will be further examined in the section on Reval. Lübeck law is also mentioned in the statements of the two parties involved in this case. The skipper hoped ‘to gade unnd to lub. rechte’ (‘by God and Lübeck law’) that the case would be decided in his favour.74 This formula is found regularly in documents associated with Lübeck and was used to express a trust in God and in the law.75 This trust is voiced in the merchants’ statement too. A final example in which Lübeck law was referred to is the appeal case from Stralsund which was discussed above. In this matter, Lübeck decided that ‘lubeschen rechte’ should be applied because the seizure of goods had taken place within Stralsund, a town using Lübeck law. The Lübeck court thus applied Lübeck law for appeal cases from Reval and Stralsund. In matters that had arisen within Lübeck itself, the court did not explicitly refer to this law. That judgements were passed according to 68

69 70

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AHL, ASA Kanzlei, NStB (Urschrift) 1451–1465 Palmarum, f. 468r (LRU IV, no. 52), 8 Mar 1461. See Chapter 7. LRU IV, no. 117b (formerly AHL, ASA Interna, Appellationen, Konv. 17, no. 174), 22 Jun 1471. This citation is from LRU IV, no. 117a (see below). LRU IV, no. 117a (AHL, Cod. Ord. Lub., no. 61), 18 Oct 1471. LRU IV, no. 229 (AHL, Cod. Ord. Lub., no. 178), 8 Jul 1482. LRU IV, no. 282b (formerly AHL, ASA Interna, Appellationen, Konv. 17 fasc. 34), 6 Mar 1486 (appeal); LRU IV, no. 282a (AHL, Cod. Ord. Lub., no. 239), 19 May 1486 (reply). LRU IV, no. 282b. Goetze, ‘Anteil Lübecks’, 129.

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Lübeck law was probably considered too obvious to need recording. When the term ‘Lübeck law’ was used, it did not necessarily indicate the laws recorded in the Lübeck Town and Sea Laws. Two of the above described cases, and possibly a third, were decided according to Hanseatic statutes, even though this is only stated explicitly in the first one. This confirms that these statutes were incorporated into the town law. Whether written laws were applied in other cases will be discussed in the next chapter. Reval The Reval council, like its Lübeck counterpart, rarely referred to specific laws when delivering its verdicts. Judgements were, for example, ‘vor recht gewyst und affgesproken’ (‘passed and approved as law’) after due consideration and consultation.76 Lübeck law, either in written or unwritten form, would have been used when applicable unless stated otherwise. There is one case in which Article 93 of the 1447 Hanserecess was referred to and applied. This lawsuit from 1471 regarding the payment of freightage after shipwreck, which was subsequently brought before the Lübeck court of appeal, has already been discussed above. The Lübeck court confirmed the decision ‘na unseme lubeschen rechte’.77 Indeed, as we have seen, Lübeck law is mentioned regularly by the Lübeck town council in response to appeals from Reval. In 1482 a judgement about salvage money was confirmed, and four years later another verdict about the payment of freightage after shipwreck was adjusted, both according to ‘lubeschen rechte’.78 In this latter case, the Reval court had applied Article 93 of the 1447 Hanserecess, which laid down that full freightage was due for salvaged goods unless the merchant chose to abandon them. The Lübeck court in its turn referred to Article 94 of the same statutes in its judgement, which stipulated that only half freight was due to be paid when a ship foundered in the first half of the voyage and a freight pro rata itineris when it wrecked after the midway point of the journey. In those cases in which none of the written laws could be applied and decisions were passed by the Reval council based on common sense, these would still have been considered in accordance with Lübeck law. This is confirmed by the fact that parties regularly asked this law to be applied, for example in the 1486 appeal case after goods had been damaged by storm and fire, and in some letters sent to the Reval court about particular cases.79 76

77

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79

LRU IV, no. 282b (formerly AHL, ASA Interna, Appellationen, Konv. 17 fasc. 34), 6 Mar 1486. LRU IV, no. 117a (formerly AHL, Cod. Ord. Lub., no. 61), 18 Oct 1471 and LRU IV, no. 117b (formerly AHL, Appell. Vol. II, no. 174), 22 Jun 1471. LRU IV, no. 229 (formerly AHL, Cod. Ord. Lub., no. 178), 8 Jul 1482. LRU IV, no. 282b (formerly AHL, Appellationen, Konv. 17 fasc. 34), 19 May 1486 and LRU IV, no. 282a (formerly AHL, Cod. Ord. Lub., no. 239), 6 Mar 1486. See, for example, TLA, TM, no. Bi 3, f. 46r [no date, late fifteenth century].

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The formula ‘ik hope to gade unnd to lub. rechte’ can be found in a number of statements from Reval burghers. This indicates that it was clear to them that they were ruled according to Lübeck law, centuries after this law had been presented to them. The knowledge that they could appeal against decisions of their own council at the Lübeck Oberhof strengthened this, as did the strong relationship between the two towns nourished by trade and personal links. Both must have been important factors in keeping trust in Lübeck law alive. Danzig The judgements in Waterrecht manuscript 1 provide a few clues as regards the use of written sea laws at the Danzig court. The judgements themselves were recorded as precedents but were sometimes based on other written laws. This is evident, for example, when considering Judgement 11 from 1432.80 This dealt with a conflict between two skippers about crew members transferring from one ship to another. As it happened, the first skipper had changed the destination of his vessel from Prussia to Flanders. The skippers brought the case before the Danzig court requesting a decision according to ‘waterrechte’. Because the council had not considered or heard of such a case before, it decided to write to the Common Merchant in Bruges who could in turn seek clarification from the council in Damme concerning the law in such a case.81 ‘They that deal with the law’ (‘den genen de mit dem Rechte umme gaen’) in Damme deliberated about the matter for a long time before concluding unanimously that the first skipper could not lay claim to damages from the second according to the ‘Water Rechte’. The Danzig council adopted this decision, as both skippers had requested a judgement according to this law. The word ‘waterrecht’ in this case does not refer to written law, because apparently none was available to the Danzig court which dealt with this specific matter. Instead, a verdict from the court of Damme was acquired. The reason for appealing to this court must have been that the law used in Danzig was considered to be from Damme. Despite being only a translation of the Rôles d’Oléron, the Vonnesse van Damme were apparently thought by some to originate in Damme and this town was therefore considered to be an authority on sea law even in the fifteenth century. The Damme council, moreover, answered the request and deemed itself competent to do so. Perhaps it received such requests on a regular basis. The case also confirms that Danzig used the Vonnesse in its court in the 1430s. The change in the 80 81

APG, 300, R/Fq, 1, ff. 23v–24r. ‘Wente desulven zaken in vortijden bij dem rade nicht gehandelt noch gehoret syn, so heft de rath darumme geschreven dom Copmanne to Brugge und en gebeden dat se darumme in radeswyse willen vorhoren by dem rade to Damme wes eyn recht darvan syn mach’. APG, 300, R/Fq, 1, ff. 23v–24r.

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title of the first copy of the Waterrecht from ‘Dit is twater recht in vlaenderen’ to ‘Dit is twater recht de men in vlaenderen thom Damme usert etc.’ must therefore have been made before this time.82 The waterrecht is mentioned in two more of the judgements (nos 10 and 15). In the first, a judgement was passed ‘vor eyn water recht’ (as waterrecht), just as verdicts were passed ‘vor eyn recht’ in other articles (nos 7, 12 and 14) and in the Reval and Lübeck sources, declaring what is lawful in a particular case. This confirms that the judgements could be used as precedents. In the case considered in Judgement 15 both parties wished a verdict according to ‘waterrecht’. Again the word did not refer to any specific written laws. Instead, it indicates that sea law was seen as distinct from other law, which is why maritime cases were handled by the council and not by the Schöffengericht. It is in this general sense that the term waterrecht was used in Danzig’s correspondence about legal cases too. Either verdicts were passed according to waterrecht or requests were made for this law to be applied. As has been related above, plaintiff and defendant did occasionally disagree as to which law was to be used. In 1435 the Grand Master wrote to the Danzig council concerning a case in which a Lübeck burgher wanted to be judged according to ‘wasser rechtes’ and a Danzig burgher requested that ‘Culmisch recht’ (Kulm law) be used.83 An exception to this general use of the term is a long letter of 1433 in which a referral to the waterrecht does appear to indicate a written law.84 In this case the skipper applied to the Danzig court for payment of full freightage for goods which some merchants wanted to unload from his ship: ‘this the skipper did not want to allow unless they promised to give him his full freight for all the goods after the bonnig had been broken in accordance with the waterrecht’.85 In comparison, Judgement 5, recorded in 1428–9, laid down that if a merchant wanted to unload part of his goods and ‘wilden bonnich breken’, he would be liable to pay full freight. It appears then that the skipper was aware of this (written) law when he lodged the case. However, another law was ultimately applied by the court.86 As in Lübeck and Reval, the only written laws that were explicitly referred to in Danzig were the Hanseatic statutes. In a letter to Wollin from 1459 Danzig stressed that according to the privileges, recesse and statutes of the Hanseatic towns (‘na inholdunge der henszestede privilegia, recesse und beslutunge’), skippers were allowed to salvage their own ship and

82 83 84 85

86

See Chapter 4. APG, 300, D/39, 57, Grandmaster to Danzig, 19 Mar 1435. APG, 300, 27/2, ff. 73v–74v, Danzig to [Lübeck], on or before 30 May 1433. APG, 300, 27/2, f. 74r. ‘des de schipper nicht also tolaten wolde, se wolden eme denne sine volle fracht gloven te geven van allem gude na deme de bonnig gebraken wurde, na eme watere recht.’ See Chapter 7.

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goods.87 This was an issue that had been defended by the Hanseatic towns from their inception. In a letter of 1491 to Kolberg, Stettin, Greifswald and Stralsund (all Hanseatic towns themselves), Danzig reminded them of the ‘gemeynen hanse stede besluth unnde recesse’ regarding the trading with zeedriftich goods, literally goods floating on the sea, which had been sold and bought in these towns.88 This trading was prohibited regularly by Hanseatic statutes, for example in Article 90 of the 1447 Hanserecess.89 A final example that denies the use of written law is related in a letter concerning a jettison from 1500. In this letter the town of Kalmar demanded an explanation for the outcome of a case that had been considered in Danzig. In this case goods had been cast from a ship in distress in order to lighten the vessel. When the skipper appeared before the Danzig council, he was told that he should elect some wise men (‘frame lude’) to pass judgement. These men decided that the skipper was due to receive full freightage for the cast goods, salvaged and unsalvaged. The Kalmar council stated in its letter that it did not agree with or understand this judgement.90 The story related in this letter was, of course, based on the statements of the skipper, who apparently had no written documentation stating the verdict. There were no witnesses contradicting him because the merchant whose goods it concerned had not been present in Danzig. Considering this case, it is hard to imagine that the Danzig court, which was highly experienced in handling maritime cases as it was the highest court dealing with such matters in the Polish kingdom, would refer such a case to a board of wise men. The verdict itself contradicts all the laws used in Danzig and elsewhere in northern Europe, apart from those in Kampen. It would therefore seem likely that the skipper invented this story in order to obtain payment of full freightage for the cast goods. In conclusion, the Danzig court appears to have applied some of its written laws. The Vonnesse van Damme and the judgements from Waterrecht manuscript 1 were consulted at least in the 1430s. These judgements were also known by some skippers. The term waterrecht was used regularly in verdicts and correspondence, but must be understood in a general sense, only rarely referring to any specific written laws. The Hanseatic statutes were mentioned specifically and were used and adhered to in as far as it suited Danzig.91

87 88

89

90 91

APG, 300, 27/6, f. 119r, Danzig to Wollin, 20 May 1459. APG, 300, 27/7, ff. 52v–53r, Danzig to Kolberg, Stettin, Greifswald and Stralsund, 24 Dec 1491. The issue was dealt with in the meetings of the Prussian towns too. See, for example, the ordinance about the salvage of stranded goods, Akten der Ständetagen Preussens, ed. Töppen, i, no. 442, meeting in Elbing, 8 Mar 1433, § 1. APG, 300, D/11, 238, Kalmar to Danzig, 8 May 1500. See also Chapter 3.

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Conclusions The administration of maritime justice in the medieval towns of northern Europe was generally undertaken by the town council. Only in towns where Magdeburg/Kulm law applied did the Schöffengericht deal with such cases. In Danzig this function was, however, adopted by the council in the late fourteenth or early fifteenth century. In Aberdeen, and most likely elsewhere in Scotland, the bailie court generally considered maritime matters. The same men, however, passed judgement in all northern European towns: the rich merchants and shipowners, although the occasional helmsman was elected to sit on a jury in Scotland. The function of the five town courts was different. The councils of Lübeck and Danzig both operated as the highest instance in their respective towns, but the former also functioned as a court of appeal for other towns governed by Lübeck law. The Danzig council, on the other hand, had been appointed as the central maritime court for the whole of Prussia and Poland. In Kampen the highest court was made up of aldermen and council. Citizens of Reval and Aberdeen, on the other hand, had to seek higher justice outside their respective towns. The Reval burghers could appeal against decisions from its council to the Lübeck Oberhof. In Scotland, several instances existed for appeals: the Court of the Four Burghs, the Lords of Council and parliament. Although citizens from several different towns could be involved in a maritime case, deciding where to settle it does not appear to have caused many problems in medieval northern Europe. A few conflicts as regards the question of which law was to be applied have been documented, but, in general, matters were brought before the court of the port considered most practical by the claimant. This would have been the home town of either of the parties, the place of departure or destination, or the nearest harbour to the site of an accident. The spread of Lübeck law to a large number of towns on the southern Baltic coast made the appearance of a court of appeal in Lübeck necessary. If a burgher from one of these towns considered the decision of his home council to be unlawful, he could lodge an appeal at the source of Lübeck law, the Lübeck town council. In such cases, the Lübeck council would only declare on issues of law and the home court would need to confirm Lübeck’s decision to make it legally valid. Because of its distance from the Oberhof, Reval burghers were allowed to appeal by post. The letters that were sent to Lübeck from Reval make for an important source on the practice of maritime law in both these towns. The council of Danzig was appointed as a centre of maritime justice by the Grand Master of the Teutonic Order and its fellow Prussian towns in the latter years of the fourteenth or first quarter of the fifteenth century. Contrary to proceedings at the Oberhof in Lübeck, maritime cases from within Prussia, and later on from Poland, were brought before the Danzig council directly.

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Only a small number of direct references to written laws appear in the sources from the five researched towns. The only laws that are named are the Hanseatic statutes in documents from Lübeck, Reval and Danzig. The terms Lübeck law and waterrecht are used in several records, but they seem to have been utilised in a general sense and not to refer to a particular written law. In Danzig one decision seems to have been in exact accordance with a written law. There is also some indirect evidence that the Vonnesse van Damme were adhered to in this town. In Kampen the law was referred to once, but in this case the amount of money mentioned differed from that in the written law. The sources from Aberdeen rather indicate that no written sea law was available in this town. Direct evidence of the use of the written laws in the northern European towns is thus rather scant. Another method by which to determine whether the written laws were utilised by the town courts is by comparing the judgements passed by these courts with the regulations in the law books available to them. This method will allow us to determine whether the towns did indeed only make rare use or no use at all of their written laws, and whether the towns utilised their law books in different ways. At the same time, judgements from the five towns in cases of shipwreck, jettison and ship collision will be compared in order to establish whether a common practice of maritime law existed among the northern European towns, where such communalities did not emerge as regards the written laws and their contents.

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7

Legal Practice: Maritime Proceedings at the Urban Courts The written laws of northern Europe were mostly compiled in the thirteenth and fourteenth centuries and reflect the stage of development in sea shipping of this period. As was explained in the first two chapters, these developments in sea shipping influenced the regulation of maritime law. Changes in the relations aboard ship, for example, resulted in the coming into being of new legal problems for which the sea laws had to offer solutions. But although shipping continued to develop in the fifteenth century, only a few new regulations were introduced. Instead, the laws of the thirteenth and fourteenth centuries were combined and disseminated further across northern Europe. The question that arises is whether these written laws were utilised in legal practice in the fifteenth century, when they no longer reflected the newest developments in sea shipping. In the previous chapter, direct evidence for the use of these laws (in the shape of explicit references to written laws) was considered, but the actual court proceedings, which truly reflect legal practice in the fifteenth century, remain to be analysed. This analysis will allow us to determine whether the law books were still in use by comparing the written laws with the judgements passed by the town courts. Court proceedings from Aberdeen, Kampen, Lübeck, Reval and Danzig will be considered in this chapter by investigating the decisions in cases of shipwreck, jettison and ship collision. Comparing these decisions will in turn make it possible to establish whether a common legal practice existed in urban northern Europe. Before turning to these comparisons, some remarks about the sources need to be made. In each of the five towns studied, administrative developments had generally led to the maintenance of urban registers in the later Middle Ages. In these, the town councils recorded important occurrences concerning daily government, as well as court proceedings. The amount of relevant material that can be gathered from these registers varies among the five towns, however. Paradoxically, the most peripheral town, Aberdeen, offers the most information. An almost complete set of council registers has survived for the fifteenth century, providing rich material compared to the other four towns. The offerings for Lübeck, Reval and Danzig are more or less equal, but the sources from the first two mainly

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cover the latter part of the fifteenth century, whereas Danzig’s records are spread more evenly across the period, starting in the 1420s. Because of Lübeck’s function as Oberhof for Reval, these two towns share some of their sources. The Kampen registers are the least informative with regard to maritime law. This is partly because most of the sources only cover the second half of the fifteenth century, or parts thereof, and because Kampen lacks a series of urban registers. Moreover, Kampen’s protected position on the River IJssel, in a relatively calm area of the Zuiderzee, probably made for relatively few shipwrecks in Kampen’s area of authority compared to towns situated on a sea coast.1 Many cases may also have been settled outside the courts. Because orality still played such an important role in medieval society, the extant sources for all five towns only document a selection of the cases that actually occurred or were dealt with by the courts. We have to keep in mind, of course, that only extraordinary cases ended up at court and even these would not always be recorded.2 Most matters would simply have been settled outside the courts or by arbitrators. Nonetheless, the sources offer interesting insights into the practice at the town courts and allow for a representative comparison of written law and judgements, and between the verdicts themselves. Shipwreck The urban courts were regularly confronted with the question of payment of freightage after shipwreck. No cases have, however, been recorded in Kampen, and the comparison is therefore restricted to the other four towns. In Aberdeen the question of freightage was dealt with by the courts relatively infrequently compared to the overall maritime material from this town. Both freightage cases have already been discussed briefly. In 1444 a barge belonging to the earl of Orkney wrecked at ‘the scaw’, perhaps Skagen at the very northern tip of Denmark. In December of that year the merchants who had freighted goods on the ship, and who were also to pass judgement in this matter, decided that they did not know how much freight was due (‘it is unknawin to the said merchandez quhether . . . thai aw to pay al the fracht or part or noght’). Moreover they did not wish to be judges in their own case (‘and sen the mater langis thaim, thai arre lath to be jugis in their awne cause’). Apparently, most of the overseas merchants who would normally have sat on the assize to judge such cases were involved in this affair themselves. The fact that they were up against a powerful lord like the earl of Orkney may also have led the merchants to suggest that the matter 1

2

Most of the problems that occurred did so when vessels entered or left the Zuiderzee through the Vlie and the Marsdiep. Many sandbanks and strong currents made sailing conditions difficult there. The Zuiderzee itself was relatively calm with little tidal influence. Cf. Ward, World of the Medieval Shipmaster, 80–1, who recommends caution when using court proceedings because of the atypicality of cases.

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be referred to the next general council, where burgh representatives from the whole of Scotland could consider the case.3 Ten years later, in 1454, an assize ordered half freight to be paid in a case that had probably involved a shipwreck, although this is not specifically stated.4 Only the fact that the matter came before the court and that half freight was charged suggests that the journey remained uncompleted. Again, the reason for the decision is not recorded and it is not possible to determine why the half-freight rule had been applied. As related above, the possibility for a revision by the Edinburgh council ‘ubi leges aquarum habentur’ was kept open. Based on these two cases, it becomes clear that the question of freight after shipwreck was one in which the Aberdeen court did not always consider itself competent to judge. That no other cases were dealt with by the Aberdeen courts may be due to the development of charter parties that could lay down provisions for various eventualities. What remains unclear is which rules concerning freightage after shipwreck were valid in Aberdeen practice. As discussed in Chapter 2, the Lübeck laws contained two different rules concerning the amount of freightage due after shipwreck. In Articles 107 and 133 of the Town Law (K) half freight was laid down, whereas in Article 230 of the same law and in Article 16 of the Lübeck Sea Law full freight was stipulated. According to the Hanseatic statutes (Article 94), half freightage was due when a ship wrecked in the first half of the journey and a freightage pro rata itineris if it happened in the second half. Landwehr argued that the half-freight rule was generally used in the Lübeck court.5 This rule was, however, not always applied in the examples he offered to support his case. In other cases it is unclear which rule was utilised. In 1484, for example, skipper Poppe Claussen appeared before the Lübeck court demanding payment of freightage for the transportation of goods from Kampen to Bergen in Norway and back. The ship had caught fire just off the Norwegian coast on its return voyage, and only some of the cargo was saved. The Lübeck court decided that the merchants were liable to pay half freight (meaning for the first half of the journey) for all the goods that had been brought from Kampen to Bergen. For the return journey, half of the other half of the freight (‘nemptlik den verdern pennyngk’, namely the fourth penny, a fourth) was due, but only for the goods that had been saved.6 Both Landwehr and Cordes argued that the half3

4 5

6

ACA, ACR V.ii., p. 692, [Curia gilde], 16 Dec 1444. The earl of Orkney was one of the nobles who received a pension from the burgh of Aberdeen: Booton, ‘Economic and social change’, 52. See Chapter 6; ACA, ACR V.i., p. 216, Curia ballivorum, 5 Nov 1454. Landwehr, ‘Prinzipien der Risikotragung’, 606, n. 23. He subsequently differentiated this, stating that the Lübeck council did not give justifications in all of its verdicts and as a result it is hard to determine whether Hanseatic law was applied or not (Landwehr, ‘Prinzipien der Risikotragung’, 608). AHL, ASA Kanzlei, NStB (Reinschrift) 1481–1488, f. 265r (LRU I, no. 321), 21 Aug 1484.

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freight rule had been applied here.7 This is not necessarily the case. The burning of the ship took place in the first half of the second part of the journey. The Hanseatic rule laying down half freight if the ship wrecked before the midway point of the journey may therefore also have been applied.8 Hanseatic law may also have been utilised in some of the other examples offered by Landwehr. In some of these it is not explicitly stated whether the accident took place in the first half of the journey or not. Unfortunately, the reason for court decisions was often not recorded.9 In a case from 1487, for example, a ship had wrecked at ‘Notouwe’.10 Some of the merchants had salvaged their goods, or parts thereof, but they were unwilling to pay freight. The only other information documented in this case is the decision: ‘They who have salvaged and received some of those goods are held to pay half freight for them to the skipper.’11 The ship’s port of departure and destination were not recorded and it is not possible to determine whether the shipwreck occurred in the first half of the journey or not, and what the grounds for the judgement were.12 The same applies in two other matters concerning freight considered in 1494 and 1499.13 It is certain that Hanseatic law was utilised by the Lübeck council in the 1486 appeal case from Reval, which was discussed in the previous chapter. The Reval council had originally decided that the merchants were due to pay full freightage or, alternatively, could ‘abandon’ their goods, applying Article 93 of the 1447 Hanserecess. The Lübeck court adjusted this verdict using, as it stated, ‘Lübeck law’: If the skipper wrecked beneath half of the way for which he was loaded, the merchants should pay no more than half freight for the sound goods that they receive and may leave other, unsound, goods to the skipper for the freight.14 7 8

9

10 11

12 13

14

Cordes, ‘Mittelalterlichen Lex mercatoria’, 183. That the journey was divided into two halves in the verdict is confusing, because the freightage appears to have been negotiated for the entire journey (seeing that the term ‘half freight’ was used for the carriage of the goods to Norway). If the half-freight rule had been applied for the complete voyage, only half freight would have been due and not three-quarters, as it was in this case. Similarly, if the Hanseatic law had been applied, a freight pro rata itineris ought to have been paid. The return journey must, therefore, have been considered as a whole. Cf. Ebel, Lübisches Kaufmannsrecht, 77. This was the norm in medieval times; only rarely were reasons given for a verdict: see Godding, La Jurisprudence, 20; Le Bailly, Recht voor de raad, 113. ‘Notow’ was a harbour on the south-west coast of Norway. See Fyllingsnes, ‘Notow’, 3–21. ‘We wes van den guderen geberget unde entvangen hadde, de were deme schiphere darvan plichtich de halven vracht to betalende’. AHL, ASA Kanzlei, NStB (Reinschrift) 1481–1488, f. 490r (LRU I, no. 384), 24 May 1487. LRU IV, no. 346, 14 Jun 1494. About the same case: AHL, ASA Kanzlei, NStB (Reinschrift) 1489–1495, f. 419r (LRU IV, no. 345), 7 Jun 1494; AHL, ASA Kanzlei, NStB (Reinschrift) 1496–1500, f. 331r (LRU I, no. 923), 6 Jul 1499. ‘Is de scipper beneden der helffte des weges dar he vorvrachtet was gebleven, denne

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The court actually applied Article 94 of the 1447 Hanseatic statutes, in this case combined with Article 93. This latter article was also utilised (‘na inneholde des recesses’, ‘according to the content of the recess’) in the appeal case of 1471 discussed in Chapter 6.15 In that case, the amount of freight was not specified. In another incident of shipwreck, on this occasion near Shetland (‘Hitland’) on the vessel’s return from Iceland in 1469, Lübeck advised Braunschweig that freight had to be calculated ‘na antale des weges’ (pro rata itineris).16 This was again in accordance with Article 94 of the 1447 Hanserecess, considering that Shetland lies just over halfway between Iceland and Hamburg, where the ship was headed. It is unlikely that the Lübeck court made use of the Rôles in this case, as has been suggested by Jahnke, as the Hanseatic regulations were more readily available to Lübeck and were used on other occasions.17 In the abovementioned cases, only the half-freight rule of the Town Law and the Hanseatic statutes have played a role. The regulations laying down full freightage for salvaged goods appear not to have been applied as often. There is one case from 1488 in which the Reval court decided that ‘vracht’, without any further specifications, was due. This decision was confirmed by Lübeck. Ebel argued that ‘vracht’ indicated full freight.18 The fact that he was probably right will be discussed further below. Although the Lübeck court consistently decided that freight was due only for salvaged goods, its judgements on the amount of freightage due after shipwreck were seemingly contradictory.19 The suggestion that different rules may have existed for North Sea and Baltic Sea shipping is, however, certainly incorrect. Shipwrecks on the North Sea (to Iceland/ Shetland and Norway) were treated no differently from those on the Baltic (from and to Reval). Yet a change does appear to have occurred around 1487. Before that date Hanseatic rules were used, whereas the half-freight rule was applied thereafter. Why this change occurred then is unclear, but it is unlikely that the written town laws of the thirteenth century came into use again. Instead, the change perhaps originated elsewhere. It is significant in this respect that not only the revised Lübeck Town Law of 1586 but also the Hanseatic Sea Law from 1591/1614 included the half-freight rule, confirming that it may have (re)appeared in legal practice in the late fif-

15 16 17

18 19

dorven eme de koplude nicht mer dan de halven vracht vor sodane duchtige gud dat se weder entfangen betalen, unde moghen dat ander unduchtige gud deme scipper vor de vracht laten beliggen’. LRU IV, no. 282a, 19 May 1486. LRU IV, no. 117b/a, 22 Jun/18 Oct 1471. See also below. HUB IX, no. 686, letter from Lübeck to Braunschweig, 31 Dec 1469. Jahnke, ‘Hansisches Seerecht’, 65, referring to my thesis and suggesting that I have not seen the connection (presumably between the pro rata itineris judgement and the Rôles). Ebel, Lübisches Kaufmannsrecht, 78. The case is not included in LRU. Jahnke, ‘Hansisches Seerecht’, 65, incorrectly quotes this conclusion (that the verdicts from Lübeck were ‘far from uniform’) from my thesis as if it relates to cases of jettison rather than shipwreck.

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teenth century. The Hanseatic rules were applied before then from at least 1447 until about 1486. There are no cases from practice that predate 1447. Contrary to Lübeck, Reval generally applied the full-freight rule from the Lübeck Town Law. It had done so in the abovementioned lawsuit from 1488 and in the previously described appeal case from 1486. The letter of appeal from Reval concerning this appeal is extensive and includes the written public statements (‘apenen cedel’) of both parties which had been read aloud in the Reval court. The plaintiff, skipper Ludeke van Ollen, had first presented his case, relating how his and other ships had been held up just outside Reval harbour (‘achtern dat bolwerk’) for eight or nine days because of bad weather.20 The cargo, mostly rye, had been spoilt, but not because of negligence on his part. He therefore demanded to be paid full freight for the salvaged goods and requested an oath to be sworn by the defendants that the damage was not his fault. He hoped that the matter would be settled according to Lübeck law and ‘waterrecht’. The five defendants, merchants from Reval, argued that it was negligence on Van Ollen’s part that had caused the goods to be burnt and spoilt, because he had kept a fire burning on the ship at night. They stated: ‘And when the law lays down that a skipper can load a merchant’s goods and then neglect ship and goods and the merchant would nonetheless be expected to pay full freight, the merchant would be badly looked after.’21 They expressed their hope (‘vorhopen wy to gade unnd to lub. rechte’) of being exempted from having to pay full freight. The report on the proceedings does not specify whether any oaths were taken by the merchants. According to Article 32 of the 1447 Hanserecess, the skipper was responsible for cooling the rye on board the ship.22 That the rye burnt suggests that this was not done properly and the skipper should therefore have had to reimburse all the damages. The Reval court considered the case a shipwreck, however, and applied Article 93 of the same Hanserecess. The court decided that full freightage was due for the unspoilt goods which the merchants were willing to receive. The spoilt rye could be abandoned. The merchants lodged an appeal against this verdict which was sent to Lübeck by post on 6 March 1486. The Lübeck court replied two and a half months later, adjusting the verdict in accordance with Article 94 of the 1447 Hanserecess. It decided that if the ship was wrecked in the first half of the journey, the merchants would only be liable to pay half freight for the goods they wished to receive.23 The ship had indeed completed less than half of its voyage, as it had loaded rye for transportation westwards (‘umme westwart to lossende’) and then 20 21

22 23

The bolwerk was situated at the entrance of Reval harbour. ‘Und wen dat dat recht vormochte dat eyn schipper des kopmans gudt inladen mochte und vorwarlosen dan schip und gudt, und de kopman den noch dem schipper de fulle fracht geven solde, so en wer de koepman ovel besorghet.’ LRU IV, no. 282b, 6 Mar 1486. HR 1447, § 32. A similar rule can be found in the Ordinancie, art. 12. LRU IV, no. 282a, 19 May 1486.

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became impeded just outside Reval’s harbour. The question remains why the Reval court applied Article 93 of the Hanseatic statutes of 1447 (‘abandon’ and ‘freight’) but not Article 94 (‘half freight’ and ‘freight pro rata itineris’). A copy of the 1447 Hanserecess was certainly available in Reval. It appears that Article 94 had not been adopted by Reval; instead the town held to the full-freight rule as laid down in the Lübeck Town Law.24 This confirms the suggestion made by Ebel that the full-freight rule was also applied in the case from 1488. Article 93 of the 1447 Hanserecess was also applied in the 1471 appeal case concerning the shipwreck near Shetland. Before this appeal was sent to Lübeck on 22 June, and presumably before the case had been heard by the Reval court, a letter had been sent from Lübeck on 24 May and was received in Reval some time after.25 In this letter, Lübeck requested that the owners of the sunk ship of Hanneke Vrome be paid freightage by the merchants whose goods had been salvaged, in accordance with the 1447 Hanserecess (Article 93). A Reval councillor was appointed as the representative of the shipowners. This representative appeared as one of the two plaintiffs when the case was heard by the Reval court. Attempts to obtain the freight had apparently remained fruitless. The merchants argued that the shipowners had not contributed to the costs of the salvage and that they themselves were not, therefore, obliged to pay freightage. The Reval council did not accept this argument and decided that freight, presumably full freight, was due to be paid in accordance with the 1447 recess, which was read out in court.26 The letter from Lübeck, which stated exactly this reason for the demand for freight, probably influenced the council in passing its judgement. Reval was subject to Lübeck law, and Lübeck itself suggested that this rule be applied. The merchants were apparently not informed about the letter sent from Lübeck, as they might otherwise have decided not to appeal against the judgement at the Lübeck Oberhof. As might have been expected, the Lübeck court confirmed (‘bevestiget, bestediget unde confirmeret’) the judgement ‘na unseme lubeschen rechte’ on 18 October 1471.27 This decision is not an indication of bias on the part of the Lübeck court, as it only confirmed that Reval had applied the law correctly and did not declare on the contents of the case. The merchants would probably have been wiser to have paid the freightage first and then filed a complaint against the shipowners for not contributing to the costs of the salvage. Reval practice regarding the payment of freightage was thus slightly different from that of Lübeck. This is partly because the Lübeck court was not consistent on the matter. Based on the judgements from Reval from 24 25 26 27

Lübeck TL, art. 230 (not in the Reval copies). The date of the hearing is unknown. LRU IV, no. 117b (formerly AHL, Appellationen, vol. II, no. 174), 22 Jun 1471. LRU IV, no. 117a (formerly AHL, Cod. Ord. Lub., no. 61), 18 Oct 1471.

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1471, 1486 and 1488, the Reval court adhered to the full-freight rule for salvaged goods laid down in the Lübeck Town Law. Under the influence of the Hanseatic statutes the possibility of abandoning spoilt goods was introduced. The rule laying down half freight for the first half of the journey and a freight pro rata itineris for the second appears not to have been adopted by Reval. Through the appeal from 1486 and Lübeck’s adjustment of Reval’s verdict, it did find its way into Reval practice, but only two years later the full-freight rule was applied again and confirmed by Lübeck. In Danzig it was laid down in 1425, in the judgement in Waterrecht manuscript 1 which was later deleted, that half freightage was due to be paid for any goods that merchants regained after a shipwreck.28 This judgement was passed in a case between shipmaster Peter Leddige and the merchants who had transported goods on his vessel, which had foundered near the island of Bornholm, on its way from Danzig to Flanders. Leddige claimed freight for all the salvaged goods, but the court decided that the merchants were not liable to pay freight for the goods that had been taken as salvage money by the Bornholm Vogt (‘den vierden pennynge’, a fourth). The verdict was probably deleted when Judgement 2 was recorded around 1428. This latter judgement established a different rule: half freight was due when the ship wrecked in the harbour or just outside it and full freight when the ship had been out of sight of the port. In the case between Leddige and his merchants, this would have meant that full freight would have been due. Court practice therefore appears to have changed around 1428–9. In 1486 the council of the town of Amsterdam sent a letter to its Danzig counterpart, requesting a document confirming the verdict in a case between a skipper from Amsterdam and three merchants from Kampen. According to the letter, the merchants had freighted goods on a ship sailing westwards from Riga, but the vessel had to be left for a wreck in Danzig. When the skipper and the merchants had taken their case to court, the Danzig council had decided that half freight was due.29 Amsterdam’s request for a certificate, which had been sent on behalf of the skipper, was repeated in January 1487.30 Based on this letter, it appears that court practice in Danzig concerning this issue had changed again between 1428–9 and 1487. Applying Judgement 2 would have resulted in full freight being due, as the vessel had clearly been out of sight of the port of departure. There are three possibilities: Judgement 2 had been discarded in favour of either the 1425 decision, Article 94 of the 1447 Hanserecess, or the Lübeck half-freight rule that was part of the Gotland Sea Law (Article 13). Sailing west from Riga, Danzig would most likely have been in the first half of the journey as Danzig is situated about halfway between Riga and Lübeck. Half freight would thus have been due according to Article 94 of the Hanseatic 28 29 30

APG, 300, R/Fq, 1, f. 17r, 1 Oct 1425. APG, 300, D/20, 234, Amsterdam to Danzig, 27 Oct 1486. Calended in RGP 36, no. 2823. APG, 300, D/20, 236, Amsterdam to Danzig, 3 Jan 1487. Calended in RGP 36, no. 2827.

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statutes, which laid down half freight for the first half of the journey. As usual, no reason for the verdict was provided and it remains unclear why half freight was imposed. It is certain, however, that neither the Vonnesse, the Ordinancie nor Judgement 2 were utilised in this case. Other issues related to shipwreck were also dealt with by the town courts. A report to the Reval council from a merchant who remains anonymous provides some clues about the practice of salvaging goods and regaining them after shipwreck.31 The account is quite substantial, covering three pages. The merchant reported a shipwreck in ‘de scheren’ in the south of present-day Finland near Rasaborg in the autumn of 1502. The ship had been underway from Lübeck to Reval laden with herring, Hamburg beer, cloth, wax and other goods.32 Some of the salvaged cargo was transported to Reval directly. Other goods were regained by merchants who had personally travelled to Finland after the shipwreck. Their colleagues who had travelled on the wrecked vessel had been able to retrieve their goods themselves. A group of these merchants claimed a proportion of a load of wax as compensation for goods that they had lost in the wreckage. They argued that the goods that were saved should be divided among all parties involved. The writer of the letter, who claimed that the wax was his, disagreed. He argued that the goods were freighted to Reval ‘on their own adventure’ (‘uppe ere egene eventur’), indicating that everyone had to bear their own risk. The writer therefore demanded that each merchant should regain the goods that he could prove were his, as was laid down in Lübeck law.33 The writer of the account was right in stating that the risks of shipwreck had to be carried by all individually, unless of course other arrangements had been made in the carriage contract. Although this is not stipulated explicitly in the Lübeck laws, it is implied in Article 230 of the Lübeck Town Law and Article 16 of the Lübeck Sea Law. Neither of these articles appears to have been available in writing in Reval, but the rule would have been valid nonetheless, as was explained in the previous chapter. The laws laid down that freight was only due by the owners of salvaged goods, thus implying that only the owners of these goods were entitled to them. The Hamburg Ship Law of 1497 confirms this (Article 44): ‘When shipwrecked goods are salvaged, such salvaged goods should not help to carry the damage of unsalvaged and lost goods.’34 The outcome of this case from Reval is, unfortunately, unknown, but it gives an insight into the 31

32

33 34

The addressee is not mentioned specifically, but was most likely Reval, since a copy is kept in the collection of Juridica at the Tallinn town archives. It is noteworthy that wax was transported from Lübeck to Reval, since it was a typical export product from the eastern Baltic area and would normally be shipped in the opposite direction. The other goods are typical western European export products. TLA, TM, no. Bi 3, ff. 75r–76r [1502/3]. ‘So wan schipbrokyghe gudere gheborgen werden, van suszdanen ghebergeden guderen dorf me nenen schaden helpen dragen der ungeborgene unde vorblevene ghudere.’

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events after a shipwreck had taken place. It also shows that this particular merchant believed he knew the law and put his trust in it. The length of the report and its survival also illustrate the development of a written legal system. The account was possibly drawn up to be read aloud as part of a hearing at the town court. In Aberdeen a different practice appears to have existed as regards the compensation of lost goods after a shipwreck. In most of the laws dealt with in this study and in the court proceedings in the other towns, goods lost through shipwreck were not compensated. Compensation was therefore seldom cause for a lawsuit. In the case of the earl of Orkney’s shipwrecked barge it was decided by an assize in a bailie court in March 1445 that all involved merchants should lot, that is to say that they had to contribute a proportionate share to the damages, as was the case in jettison.35 Similarly, in 1481 a merchant was assigned some goods from a shipwrecked caravel by lot (‘by cut and cavil’) and was also expected to contribute to the damages to other goods.36 Interestingly, a decision by the ‘scepynnes and wit’ (aldermen and council) of ‘the moy’ (Arnemuiden?) from 1449 regarding the contribution of the crew with their voering (‘furyng’) laid down the same: That schipmennys furyngis suld be free of lottyng, that is to say that alsmykel as the fracht of thair furyng drawis suld not lot, bot the gudes that was apon thaire furyng for the remanend of the valu of thaim suld lot like as othiris gudis of the schip.37 Thus the voering was free from contribution, but any additional goods taken aboard by the crew were subject to lot like the other goods on the ship. This verdict was passed in a case in which an Aberdeen vessel had foundered on the Dutch coast on its way to London with a cargo of salmon. That the voering was free from contribution up to a certain amount in cases of jettison was laid down in the Rôles d’Oléron (Article 8) and its translations, and it is this rule that appears to have been applied here. The two decisions from the Aberdeen court are thus in accordance with that of the Dutch aldermen and the regulation of the contribution of lost goods after jettison, although in this case only the merchants were expected to contribute and not the skipper. However, the verdicts oppose the rules regarding shipwreck in the written laws and judgements passed in legal practice elsewhere. A sense of solidarity seemingly existed among members of the Aberdeen maritime community, and an idea that when accident struck some, it may just as easily have struck others. The overseas merchants were all members of the guild, in which a strong sense of community was fostered and through which, from early times, help was provided to members who had 35 36 37

ACA, ACR IV, p. 392, Curia ballivorum, 8 Mar 1444/5. ACA, ACR VI, p. 707, Curia legalis, 10 Dec 1481. ACA, ACR V.i., p. 29, Bailie court, 8 Feb 1448/9.

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suffered losses beyond their control. Since the government and courts consisted of these same guild members, the custom of dividing losses between all parties involved in a maritime venture would also have found its way into legal practice. As the evolution of guilds in Aberdeen was not dissimilar to developments elsewhere in northern Europe and strong relations between merchants existed everywhere, the question remains, however, why this community spirit is not apparent in legal custom elsewhere. Another issue dealt with by the Aberdeen courts was the possibility of loading goods from a wrecked ship onto another vessel in order to complete a contracted voyage, as was discussed in the Rôles d’Oléron. This law was applied in 1466 when the cargo of a Spanish barge that had wrecked in Aberdeen harbour was divided between another barge and a crayer, and carried to Sluys in Flanders where both ships were due to go (‘et fuyr thaim to the port Salus quhare thai are frachtit to’). The shipmasters and their crews were also made to swear that the goods were loaded with the consent of the master of the Spanish barge.38 Whether it was the wreck of this same Spanish barge that was obstructing traffic in the harbour thirteen years later is unclear, but in 1479 Andrew Scherar took it upon himself to make some improvements to the harbour and remove the wreck of a Spanish barge, in exchange for the acquittance of some outstanding debts resulting from his office as provost.39 It appears that there was no rule for the Aberdeen harbour comparable to that recorded in the Wisby Town Law (Article 3), which laid down that wrecks should be removed by the owners within a month in summer and eight weeks in winter.40 Finally, in Reval in 1482 the question of salvage money was considered. In this case a councillor and burgher from Reval pleaded for the return of their goods which had been dredged up from the sea near the island of Ösel by another Reval burgher. The court decided that the goods should be restored to the owners on payment of a reasonable salver’s wage (‘redelick bergelon’). An appeal was lodged against this judgement but it was confirmed by the Lübeck court ‘na lubeschen rechte’.41 In the fifteenth century payment for the salvage of goods was made in the shape of a wage rather than a proportion of the goods as had previously been the case.42 The terms ‘redelik arbeideslon’ and ‘redelik bergegeld’ are often used in letters by the Hanseatic towns attempting to retrieve salvaged goods.43 Wages had already been laid down in Article 15 of the Lübeck Sea Law. 38 39 40 41 42 43

ACA, ACR V.i., p. 572, [Balie court], 4 Feb 1465/6. ACA, ACR VI, p. 598, Council and community, 10 Sep 1479. Wisby TL, art. 3. LRU IV, no. 229 (formerly AHL, Cod. Ord. Lub., no. 178), 8 Jul 1482. Niitemaa, Strandrecht in Nordeuropa, 201–48. For example: Lübeck to King Waldemar IV of Denmark, in LUB III, no. 576, 25 Jul 1366; an arbitral decision by King Eric of Denmark between the Vogt of Gotland and the Hanseatic towns, in LUB VI, no. 669, 17 Jul 1425; Lübeck to King Karl of Sweden in: HUB IX, no. 557, 20 Feb 1469.

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Moreover, freedom from the law of wreck had been part of privileges granted to the Hanseatic towns, and especially Lübeck, since the start of the thirteenth century. This issue remained an important item on the towns’ agenda throughout the Later Middle Ages and came up regularly at the Hanseatic diets. Statutes prohibiting the sale and purchase of salvaged goods appeared at regular intervals from 1365.44 In the case from Reval it is unclear whether the salver was sued because he did not want to return the goods at all, or because he wanted to take a larger part than was his due. Unfortunately, while Lübeck’s reply survives, the original appeal with a description of the complaint does not. It is also unclear which of the two parties appealed. Be that as it may, the Reval court decided according to the common Hanseatic practice as regards salvage, and in accordance with Lübeck law as considered by the Lübeck court. The question of freight after shipwreck regularly came up in urban court proceedings, apart from those in Kampen. There was no communality in the verdicts. Indeed, not even the judgements passed by the Lübeck court were uniform. It applied the Hanseatic rule, laying down half freight for the first half of the journey and a freight pro rata itineris for the second, but on other occasions it ordered half freight to be paid and even confirmed a Reval judgement stipulating full freight. The Reval council generally appears to have stuck to the full-freight rule, but also allowed for the possibility of abandoning the goods for the freight in accordance with Article 93 of the 1447 Hanserecess. From Aberdeen, only one judgement survives stipulating half freight, but the possibility was left open that Edinburgh would order full freight instead. Danzig applied the half-freight rule in 1425, but changed this only a few years later. From that time half freight was laid down for a shipwreck in the harbour or within sight of it and full freight was due beyond that. In the late fifteenth century, however, the half-freight rule was again applied, or possibly Article 94 of the 1447 Hanserecess. It is unclear when this change in legal practice occurred. Other rules concerning shipwreck could also be deduced from legal practice. In Aberdeen the opportunity to load cargo onto other vessels was provided for and in Reval, and also, through an appeal, in Lübeck, it was decided that salvaged goods should be restored to the owners on payment of a reasonable wage to the salvers. Aberdeen practice deviated from that in the other four towns as regards the contribution towards lost goods after shipwreck. That the town was not unique in this is indicated by a judgement from Zeeland, indicating that a common practice may have existed in north-western Europe. In the towns of the rest of northern Europe the risks of a shipwreck had to be borne by the merchants themselves. This is confirmed by the testimony of a Reval skipper. 44

First appearance: HR 1, I, no. 374, 5 Oct 1365, art. 12; for example also in HR 1, VI, no. 70, 11 May 1412, art. 9 and HR I, 6, no. 398, 24 Jun 1417, art. 14.

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The same differences that existed in the various written laws as regards the payment of freight are thus apparent in the court decisions. The deviation of Aberdeen concerning the compensation of losses after shipwreck is specific to legal practice; the written laws all agreed that the risks of shipwreck were at everyone’s own ‘adventure’. Legal practice as regards shipwreck was thus even less uniform than the written laws. Jettison and other forms of general average Different aspects of jettison and other forms of general average were dealt with by the urban courts. First, it needed to be established whether a jettison was carried out in an emergency. In Lübeck in 1489 a skipper, who was the plaintiff in this case, was ordered to swear an oath with two of his crew members that goods had been jettisoned ‘wedders unde wyndeshalven’ (because of weather and wind).45 Such an oath is not laid down in the Lübeck Town and Sea Laws concerning average, but it was probably considered a known custom in Lübeck that did not need to be recorded. The Gotland Sea Law, the Hamburg Ship Law of 1497 and the Ordinancie all stipulated that two or three members of the crew had to swear with the master, but as no medieval copies of these sea laws survive from Lübeck, there is no evidence that its council was influenced by these laws.46 When a shipmaster had established through his oath that a jettison had been necessary, the contributions of the skipper and the merchants to the damages would be calculated considering the value of both the ship and the goods: ‘over schip ende gud’. This definition was used regularly in the judgements of the Lübeck court. In a case from 1495, for example, six merchants complained that skipper Hinrick Sassen of Hamburg had cast twenty-four lasts of salt and other goods overboard in the ‘Belte’, either the Little or Great Belt. The council decided that ‘whatever the aforenamed skipper jettisoned out of need shall be reckoned over ship and goods’.47 The expression ‘over schip ende gud’ cannot be found in any of the written Lübeck laws. It was only used in the Hamburg Shipping Law of 1497 (Article 33): ‘When a skipper casts any goods because of a storm to save ship and goods, the damage shall be reckoned aver schip unde gud, jettisoned and unjettisoned.’48 None of the court proceedings, in their turn, established exactly how the contributions should be calculated. The 45 46

47

48

AHL, ASA Kanzlei, NStB (Reinschrift) 1489–1495, f. 40r (LRU I, no. 441), 29 Sep 1489. Gotland SL, art. 22; Hamburg 1497, art. 31; Ordinancie, art. 4, also in Gotland SL, art. 41 and Wisby SL, art. 38. ‘Wes de erbenomede schiphere in der noet also geworpen hefft, dat mot aver schip unde gut gan’. AHL, ASA Kanzlei, NStB (Reinschrift) 1489–1495, f. 560v (LRU I, no. 683), 3 Oct 1495. ‘Welck schipher in waters noden umme schip unde gud to bergende ienighe gudere warpet, den schaden schalme reken aver schip unde gud, geworpen unde ungeworpen.’

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wording ‘mark markelike’ or similar definitions that were applied in many of the written laws were not used in the court decisions. The definition ‘over schip ende gud’ was also used by the Reval council. In the autumn of 1490 many storms swept across the Baltic and impeded shipping between Lübeck and Reval. Many ships were forced to cast goods overboard. In 1491 a letter was sent from Lübeck to Reval recounting the jettison of a pack of cloth worth 104½ Lübeck marks from the ship of Elar Elvesson. This pack belonged to a merchant from Dorpat. The Reval council requested that the Lübeck merchants who had freighted goods on Elvesson’s ship contribute towards reimbursement of the pack of cloth to the skipper. The latter had apparently already compensated the Dorpat merchant for his damages. The contribution would be calculated in proportion to their goods (‘na andel synes guder’) ‘because it is reasonable and in accordance with the law to apportion cast goods and suffered damage over ship and goods’ (‘unde wente deme billick unde recht is sodane geworpene guderen unde geledene schade zulle gan over schip unde gud’).49 This calculation of the contributions to the damages in proportion to the saved cargo and the ship is in accordance with Lübeck law and legal practice. The wording ‘over schip ende gud’ is also used in a Kampen testimony. In 1486 Peter Johansoen from Bolsward testified that he had contributed his share of the damages after a jettison, which damages had been divided ‘over schip ende guet’.50 Legal terminology in cases of jettison thus appears to have corresponded with that used elsewhere in northern Europe, although, strictly speaking, it contradicted the written Kampen laws. These laid down that the freight received by the shipmaster was to be included in the calculations as well. This contradiction could indicate that legal practice changed in Kampen at some point after 1416, perhaps under influence of the copy of the Ordinancie, which arrived in the town in the third quarter of the fifteenth century. However, as this information was extracted from a testimony and not from actual court proceedings, such conclusions must remain tentative. The definition ‘over schip ende gud’ does not survive in the sources from Danzig. Instead, in a case from 1440 the damages after a jettison were divided between both ship and goods ‘na penningetal’. This decision is recorded in a letter to Stockholm.51 In Chapter 5, Judgement 6 of Waterrecht manuscript 1 was discussed. In this judgement the ship was not mentioned as part of the contributions to jettisoned goods and the question was posed of whether this was because its inclusion was considered self-evident. Analysing the verdict from 1440, it appears likely that this was the case, rather than that the rule actually changed between 1433, when Judgement 49 50 51

TLA, TM, no. Aa 10, f. 167r, mid 1491. GAK, RA, no. 6, f. 97r, 1486. APG, 300, 27/3, f. 106v, Danzig to Stockholm, 16 Apr 1440.

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6 was drawn up, and 1440. With regard to jettison these judgements are the only two that survive, discounting the case from 1500 discussed in Chapter 6 in which full freight was supposedly imposed for the salvaged and lost goods by a board of wise men. Other questions of general average were dealt with by the Danzig court. An interesting case was reported in a letter from Danzig which was probably sent to Lübeck.52 It dealt with a variety of problems that could occur in overseas shipping. In the winter of 1432–3 several ships were caught in the ice at the mouth of the Vistula. Some of the skippers appeared before the council complaining that a number of crew members had left their vessels, refusing to remain with the cargo for fear of losing their lives. The sailors were ordered to return to their ships by the council in order to secure the goods and ensure the seaworthiness of the vessels. The costs of this extra work would be divided between the shipmaster and the merchants. Next, a single skipper appeared in court with some of his merchants reporting that his ship had been damaged by the ice and that he was concerned that he might lose both the ship and the cargo. The vessel had sailed from Livonia with flax and was destined for Lübeck. The merchants wished to unload their goods, but the skipper would only allow this in exchange for payment of full freight. The council decided that, because of this emergency situation (‘sulke merklike notzake’), the merchants could unload part of the cargo so the skipper was able to repair his ship. They would have to reload their goods when this repair had been carried out. The costs of the unloading and reloading would have to be borne by the merchants themselves and divided equally among them. If any of the cargo was damaged as a result of the unloading or of remaining on board, the saved goods would contribute towards the damages ‘na penningtalen’ (according to the value of the goods). When the ice subsequently broke and started to float to the open sea, the ship was carried along with it including the helmsman and some of the crew. In order to save their lives, the ship and the cargo, the sailors cut down the mast with its ropes and cast it overboard. The skipper and other crew members then rescued the ship (presumably with another vessel) and brought it back to the mouth of the Vistula. Once returned there, however, it sprung a leak and some of the flax became wet. The flax was again unloaded to allow for repairs. The skipper then appeared before the court for a second time with two other merchants. This time, the council decided that the goods that had been saved should contribute towards those that had been spoilt. After the vessel had been restored to a seaworthy condition, the skipper would have to reload the goods again at the merchants’ expense and sail to the original port of destination. When the merchants 52

APG, 300, 27/2, ff. 73v–74v, Danzig to [Lübeck], on or before 30 May 1433 (next letter dated 30 May).

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declined to reload all their goods, the council decided that they had to pay full freightage straight away for the unspoilt cargo. For the water-damaged goods, full freight would be due on arrival of the skipper in Lübeck. Finally, the skipper demanded a reimbursement for all his damages: ‘to give pay to the salvers, to repair his ship, to raise the mast, to buy new ropes and a boat and other costs which he had made because of this’.53 At the merchants’ request the case was postponed until the ship arrived at its destination in Lübeck. They argued that they were not authorised to reimburse such damages as the goods belonged there. It is noteworthy that the costs of securing the ship and the goods were divided between skipper and merchants, whereas the costs of unloading goods in order to repair the ship had to be borne by the latter alone. According to the Ordinancie and the 1497 Hamburg Ship Law, which are the only laws to deal with a similar situation, the costs of lightening a vessel after it had run aground were to be split between ship and goods, as in jettison.54 The revised Riga Town Law dealt with the capture of vessels in ice: the costs of freeing them were to be divided between the ship (one quarter) and the cargo (three-quarters) (Article 8). It appears, then, that the Danzig court dealt with these issues differently. The risks of unloading a selection of the cargo were also to be borne solely by the merchants.55 The damages to the spoilt goods were to be divided between the merchants. The expenses incurred by the skipper in securing the goods, repairing the ship and hiring extra help, on the other hand, were to be split between the skipper and the merchants. In this case only a judgement concerning the securing of ship and goods was passed; the rest would be considered on arrival of the vessel in Lübeck. The payment of freight was another issue that arose in this case. The skipper proposed the application of Judgement 5, which stipulated the payment of full freightage if the merchant broke the ‘bonninge’, but the council applied Judgement 4 instead.56 This laid down that the skipper should be allowed the opportunity to repair his ship. The verdict concerning the payment of freight for the goods that were not returned to the vessel after it had been repaired complied with Judgement 10, although the latter only described a case in which the ship returned to its home port, whereas this ship was in a foreign harbour. That was probably why the skipper was 53

54

55

56

‘alse dem volke verbeteringe to geven sin schipp wedder to maken, mast to reisen, nuwe touw und eyn both wedder to kopen und anderley unkost dehe darumme hadde gedaen’. APG, 300, 27/2, f. 74v. Ordinancie, art. 18 (art. 19 in Fq, 1 and art. 15 in Fq, 2). Hamburg 1497, art. 39 is based on the Ordinancie. This situation is dealt with in the 1497 Hamburg Shipping Law (art. 40) and in Roman Law (Dig. 14, 2, 4, pr.). In these laws the sinking of the boat with the unloaded goods caused the damages to be divided among ship and goods, whereas the offloaded goods would not have to contribute to any damages if the ship wrecked. See also below. See Chapter 6.

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not obliged to look for substitute cargo as was laid down in Judgement 10. On the whole, it appears that the decisions in this case favoured the shipmaster, as representative of the shipowners, over the merchants. The Aberdeen courts also considered a few cases of jettison in the second half of the fifteenth century. In 1456 Simon, the master of a cog called the Mariknyght, appeared before the bailie court in a case against Mathew Fichet and other merchants from Aberdeen concerning the compensation of some jettisoned goods. The assize decided that the cargo that was left in the ship should contribute towards the cast goods. It considered irrelevant in this instance the fact that some of the merchants had not agreed to the jettison. The skipper, moreover, had to contribute with the value of his ship or his freightage (‘de precio vel naulo eiusdem navis’).57 Similarly, in 1485 an assize of merchants and skippers, including two helmsmen and the skipper of the ship in question (a bus), decided that the merchants involved should lot with a merchant whose goods had been cast overboard. The skipper had to contribute to the cast goods with his ship or his freightage.58 In contrast to the corrupt translation of Article 8 of the Rôles d’Oléron in the Scottish texts of this law, according to which the skipper was to be paid for his freight and his damages, both judgements laid down that shipmasters should contribute to a jettison with either their ship or their freight. Court practice at Aberdeen thus corresponded with the original regulation in the Rôles and not with its Scottish translations. These original laws had most likely been valid through custom since the thirteenth century. Also, this confirms again that the Aberdeen court did not have any copies of the ‘ship lawis’ at its disposal. A case from 1457 in which a merchant demanded ‘ij marcis of lottyng siluer of gudis at war castyne’ from a colleague confirms that merchants were reimbursed with a share of the saved goods in cash and not in kind or pounds in weight, as was suggested by Landwehr.59 Two more details of proceedings after jettison can be deduced from the Aberdeen sources. First, in a burgh court of 1480 the amount of cast goods belonging to a certain merchant was established through the testimonies of three witnesses (‘witnessing to the verite anent the casting of certane gudis’). The skipper, a schipman and a third person provided similar statements concerning the character and amount of goods that had been jettisoned.60 That the shipmaster decided whether goods should be cast is 57 58 59

60

ACA, ACR V.i., p. 264, Curia ballivorum, 4 Mar 1455/6. ACA, ACR VI, p. 904, Bailie court, 11 Feb 1484/5. ACA, ACR V.i., p. 300, Curia ballivorum, 19 May 1457. Landwehr, Haverei, 26. See also Chapter 2. ACA, ACR VI, p. 625, Burgh court, 22 Mar 1479/80. The schipman was John Collison, son of David Collison, who had climbed the social ladder and thus became the founder of one of the eleven elite families in the second half of the fifteenth century. John would eventually marry Elizabeth Lesley, a daughter of landed nobility, and become provost in 1521, but was apparently still at the start of his career here.

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indicated by the testimony of a skipper at a bailie court in 1495. This is not laid down specifically in the written laws. In this case, the skipper had refused to allow a jettison, but some goods were thrown overboard nonetheless. The testimony was presumably given by the skipper to relieve him of the obligation to contribute towards the cast goods.61 A similar custom existed in Kampen, as is indicated by another testimony drawn up in this court around 1470: That I have heard and seen that Willem Morre said that he would cast his goods and called out that the people should cast, but I did not hear a word from the skipper nor had he given his consent, but he was in the dorrick and bailed the water out.62 This evidence was given by Willem Kroec during court proceedings to determine whether the jettison had been necessary in this case. The testimony implies that the jettison had not been necessary because the skipper had not ordered it or given his consent. The damages would therefore probably have had to be borne by Willem Morre, who had cast the goods overboard, alone. The decision of the Aberdeen court that merchants had to contribute towards cast goods irrespective of their consent to a jettison appears on first consideration to oppose the verdict in a case in which the mast had been cut with the permission of only a selection of the merchants. In 1453 the master of a bus claimed full freight for an interrupted voyage because the mast had had to be cut in order to save the ship. He also requested compensation for the mast. Concerning the first question the assize decided that only half freightage was due ‘be condicion made betuex the maister and marchaundis forsaid at Northberwike’. If the skipper or the shipowners could provide evidence that another agreement had been made to replace the one drawn up in North Berwick, the newer document should be adhered to. As regards the lottyng, the assize concluded that: alsmony of the merchandis at consentit to the hewyne of the said mast, thaire gudes and the gudez of thaim that thai war merchandis to sal pay lottyng of the said mast, and the remanend of the gude sal be free of lottyng.63 The cargo of the merchants who had agreed to the cutting and the goods of those men they represented were to be included in the calculations of the contribution towards the mast, but the remaining cargo was to be 61 62

63

ACA, ACR VII, p. 638, Curia ballivorum, 23 Jun 1495. ‘Dat ic ghehoert hebbe unde ghesien dat Willem Morre hettede syn goet werpen ende riep datmen werpen solde, mer vanden scipper een hebbe ic nicht een woert ghehoert offte consent dair toe gheuen, mer hij lach onder in den dorrick unde oessden dat water wt.’ GAK, OA, no. 8, piece of paper after f. 73v, [1470]. The dorrick is the place in the ship where dirt accumulates. ACA, ACR V.i., p. 187, Curia ballivorum, 26 Oct 1453.

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exempted from this assessment. Because the skipper had to be reimbursed for his losses in cases of voluntary damage to the ship, he needed their consent for such measures in order to receive compensation. In cases of jettison, on the other hand, the shipmaster had to contribute, as was explained in Chapter 2. The Aberdeen verdicts, therefore, do not contradict each other. A similar case was considered at the Lübeck court. In 1497 skipper Gorges Wolder appeared before the court claiming against the merchant Mathias Kronen. Kronen had not been aboard the ship when consent had been granted by the freighters present to cut the mast. The council decided that when the merchants on the ship agreed to cut the mast in order to save the cargo, this agreement was legally binding for everyone who had freighted goods on the ship.64 This decision contradicts the Aberdeen verdict in that it considered the consent of a selection of the freighters to be binding for all. However, the circumstances vary slightly, as in the Aberdeen case the merchants opposing the cutting had been aboard ship, whereas in the lawsuit from Lübeck they had been absent. This variation may explain the different judgements, but it is difficult to determine for certain. That the Lübeck merchants had to contribute to the mast if it had been cut to save the ship is in accordance with the written Lübeck laws (Article 153 of the Lübeck Town Law (K); Article 24 of the Sea Law). The Sea Law also stipulated that the merchants aboard the ship had to agree to the cut. This condition was clearly satisfied in the case from 1497: ‘mit der coplude willen de im schepe gewesen syn’ (‘with consent of the merchants who were in the ship’). The possibility that the merchants might not accompany their goods was, however, not yet taken into consideration in this thirteenthcentury law, as it was a practice that only developed at a later time.65 The Ordinancie was the first law to allow for such circumstances in its article on jettison (Article 4).66 Article 31 of the Hamburg Ship Law of 1497 also provided for it. These laws stipulated that a majority of the crew had to agree to a jettison if no merchants were aboard the ship. The merchants were thus bound by the decision of a legally acknowledged group of people. In the case before the Lübeck court, it was established that the merchants present on the ship formed such a group. Whether they would have decided differently in the case considered in Aberdeen is a question that will, however, have to remain unanswered. Two more records of court proceedings from Lübeck indicate that the town court handled the principles of general average loosely. In both cases damages were divided between shipmaster and merchants as in jettison. The first matter concerned the plaintiff, Hinrick van der Heyde, and the defendant, skipper Thomas Mossingh. In March 1461 the plaintiff 64 65 66

AHL, ASA Kanzlei, NStB (Reinschrift) 1496–1500, f. 139v (LRU I, no. 786), 20 Jul 1497. See Chapters 1 and 2. Also in Gotland SL, art. 41; Wisby SL, art. 38.

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requested that Lübeck law be applied after some of the cargo carried on Mossingh’s vessel, which had been loaded onto a boat to be discharged in Lübeck’s harbour, had been lost when the boat sank in bad weather. The plaintiff argued that the goods had been offloaded ‘to des ghemenen besten willen to lossende der gudere de dar inne bleven’ (‘for the sake of the common good in order to save the goods that remained aboard ship’). Taking that into consideration, the council decided that the damages were to be divided ‘over ship and goods’.67 This situation was not regulated in the Lübeck laws. The only law that did provide for such circumstances was the Roman Lex Rhodia de Iactu: If a heavy-loaded ship, that could not make a river or a port, was lightened by transferring part of the goods onto a boat to prevent the ship getting into danger in front of the river or at its mouth or in the harbour, and the boat sinks, compensation will have to take place between those whose goods were saved on the ship, and those whose goods were lost in the boat, as if they had been cast.68 This law in its turn influenced a regulation in the 1497 Hamburg Ship Law, although the section on the prevention of danger is lacking there. The principle of the rule is, however, the same as that applied by the Lübeck council in 1461. If this verdict was based on any written law, it could only have been the Digest, but the motivation used in court (‘umme de to des ghemenen besten willen to lossende . . .’) is different from that provided in the Lex Rhodia. Lübeck’s decision therefore established this rule in writing for the first time. It may have existed in custom before, or it may alternatively have been a new rule. Before this time, such situations may have been considered shipwreck or, in present-day terminology, particular average. The other case in which the costs of a measure were divided ‘over ship and goods’ involved a skipper from Stralsund and merchants from Stockholm. In this case, considered by the Lübeck court in 1493, the governor of Gotland had saved a ship and its cargo and was rewarded with some of the goods. Because these goods had been given away ‘for the rescue of both the master’s ship and the merchants’ goods’ (‘umme reddinge des erbenomeden schiphernn schepes unde de coepmans gudere’), their costs had to be divided between all parties involved. A condition of this verdict was that the skipper had not been negligent; if it was established that ship and cargo had had to be saved because he had been careless, then the 67

68

AHL, ASA Kanzlei, NStB (Urschrift) 1451–1465 Palmarum, f. 468r (LRU IV, no. 52), 8 Mar 1461. ‘Navis onustae levandae causa, quia intrare flumen vel portum non potuerat cum onere, si quaedam merces in scapham traiectae sunt, ne aut extra flumen periclitetur aut in ipso ostio vel portu, eaque scapha summersa est, ratio haberi debet inter eos, qui in nave merces salvas habent, cum his qui in scapha perdiderunt, proinde tamquam si iactura facta esset.’ Dig. 14.2.4. pr.

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skipper would become liable for all the damages.69 The council considered this situation to be related to jettison and other forms of average. Without the governor’s help the ship and the goods would probably have been lost and the costs of the rescue were therefore divided between the owners of the ship and the goods. As no legal definition of average as yet existed, the notion of dividing the contribution towards the costs or damages between these two parties when the common good had been served by a specific measure could be applied whenever the council saw fit. In Aberdeen a variety of cases, including the cases of shipwreck already discussed, also dealt with circumstances in which the contribution towards damages was an issue. Two lawsuits concerned the loss of anchor and cables but in both this gear was probably lost through accident. According to most laws, the damage would have had to be borne by the skipper himself.70 However, in both cases lottyng was laid down. In 1464 it was decided that the merchants should contribute their share of the costs of the salvage of anchor and cables if these could be located. If they were not regained, the merchants should lot ‘punde punde like’. The value of the gear would have to be established by the skipper under oath.71 Similarly, in 1499 some merchants testified that they had contributed goods to the value of their lot for the compensation of a lost anchor and cable.72 Accidental damage to the ship was thus treated in the same way as goods lost through shipwreck, apart from the fact that, for an unknown reason, the skipper was exempted from contributing in the latter matter. A special case of average, finally, was handled in 1485. It concerned the jettison of a barrel of salmon after it had been put on the lower deck (‘owyrlop’) for ‘saufty of the merchandis gudis’.73 According to the 1467 Act of Parliament it was forbidden to carry goods on any of the decks, unless they were exempted from freightage. If such goods were cast, they were not compensated.74 In this case, however, the merchant had paid freight, and the skipper and one or two of his sailors were therefore ordered to swear an oath that the barrel had originally been placed under the orlop and had been moved at a later stage.75 If they would swear to this, the barrel would be compensated by the other merchants and the skipper, but if they would not and the salmon had been put on the orlop from the start of the voyage, the skipper would be held liable to pay the damages. This confirms that it was, in principle, prohibited to carry cargo on the decks and that the 1467 69

70 71 72 73 74 75

AHL, ASA Kanzlei, NStB (Reinschrift) 1489–1495, f. 349r (LRU I, no. 577), 31 Aug 1493. It is unclear why this case was taken before the Lübeck court. This was particular average. See Chapter 2. ACA, ACR V.i., p. 503, Curia ballivorum, 11 Apr 1464. ACA, ACR VII, p. 927, Curia ballivorum, 18 Jan 1498/9. ACA, ACR VI, p. 932, [Bailie court], between 13 and 20 Sep 1485. See Chapter 4. It is strange that a piece of cargo was put on the orlop for safety, as this would not improve the ship’s stability. Perhaps it was put there in order to be able to jettison it more swiftly.

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act of parliament was thus adhered to in that respect. The idea that the damages after a jettison should be divided ‘over ship and goods’ was common throughout northern Europe. This definition is found in the records of court proceedings from Lübeck, Reval and Kampen, although it was not used in any written laws until the publication of the 1497 Hamburg Ship Law. The wording cannot be found in the extant sources from Danzig and Aberdeen, but a contribution towards the damages of both the skipper and the merchants was the norm all the same. In Aberdeen either the ship or the freight could be used by the skipper for this. In Kampen the freight was, at least initially, included in the calculations also, in accordance with the Kampen Town Law, but this may have changed later. Both the Reval and Danzig courts specified that the contribution should be calculated in proportion to the value of the goods. Other situations of general average in which the damages were divided ‘over ship and goods’ were considered by the Lübeck court. These concerned the payment of salvage money to the rescuer of a ship and its cargo, and the sinking of the boat that had functioned as a lighter. In Danzig this situation was handled differently. According to its council only the merchants had to contribute towards the lost goods. Both the Kampen and Aberdeen courts decided that permission was needed from the skipper to carry out a jettison. The consent of the merchants, on the other hand, was not necessary according to an Aberdeen judgement. However, in contrast to Lübeck practice, an oath establishing that the jettison had been carried out in an emergency situation was not required. Aberdeen and Lübeck practice possibly also differed in circumstances when merchants’ consent was needed for cutting the mast. The Lübeck court decided that it was legally binding for all merchants when those aboard ship had agreed to the cutting. The Aberdeen assize stipulated that only those who had consented needed to contribute. The towns thus agreed that both merchants and skippers needed to contribute towards the losses caused by a jettison. However, in Aberdeen the skipper had to compensate using either his ship or his freight and in Kampen initially both. Other differences existed as regards the oath to establish the need to jettison and the consent of merchants to cut the mast. Although it is noteworthy that a common definition was used as regards the division of the damages (‘over ship and goods’), the content of the verdicts again differed. It is clear that no uniform practice existed, even though the differences between the towns were not as significant as those concerning the payment of freightage after shipwreck. Ship collision Only one case of ship collision was dealt with by the Aberdeen court. In 1490 John Fichet was judged ‘in amerciament of the court for the wranguyse bringing of the wrak of the hulk to the key in skacht [damage] of the

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toune’. At the same time, it was decided by the bailie court that both Fichet and another skipper (or shipowner) of a ‘keile’ should, with two witnesses, establish the damage done to each of their ships by the other, indicating that a collision had taken place.76 After this had been taken care of, ‘ilkane tile upricht tile uther’: each would have to compensate the other.77 This must be understood to mean that the losses of each were halved and divided between the two skippers or shipowners.78 Contrary to the written laws, according to which only the hit skipper would be compensated, the damages to both ships were thus shared amongst the shipmasters. This may be because neither was considered to have collided with the other, but it may also be ascribed to a different practice; all damages resulting from an unintentional collision may have been divided equally. Another ship collision may have taken place near Aberdeen harbour in 1441.79 Before the guild court, Henric Raife, ‘maister of the barge that brak noght lang syne beside this havin’, and Clais Mollenare ‘maister of the brokin hulk’, both with their merchants, declared before the court that they had not been obstructed in any way by the burgesses or neighbours of the town whilst salvaging their ship and goods and ‘wyst [knew] of na cause of playnt, bot the gude men of the toun had don right weile to thaim of the quhilk thai thankit hartli the gude men of the toun’.80 There are no other entries relating to these two ships, so it is impossible to establish with certainty that the damage to them was caused by a collision rather than by a double shipwreck. If it was a collision, any compensation procedures must have taken place outside the court, or have remained unrecorded. The oldest relevant case from Kampen was recorded in the urban register Digestum Vetus and is relatively well documented. In 1460 Johan Witte’s ship collided with that of Johan Sellen when both were anchored near the island of Texel. Sellen’s ship sank, taking fourteen men with it. He and his companions brought the case before the court in Kampen, demanding a large sum of money from Witte in compensation. Witte rejected this sum as he insisted the collision had occurred through accident and bad weather. He was prepared to recompense Sellen for some of his damages and had brought a handkerchief full of money to the court as evidence of his good will. He vouched that the sum he was offering was larger than any 76 77 78

79

80

There is mention of a ‘keilschip’ elsewhere: ACA, ACR V.i., p. 399, 19 Jun 1460. ACA, ACR VII, p. 176, Curia ballivorum, 22 Mar 1489/90. Both men were members of one of the eleven elite Aberdeen families and it is therefore likely that they owned at least part of the ships. It is not specifically stated that a ship collision took place. Two ships wrecked near the harbour at the same time. It is interesting to see that the sources in general refer to ‘the barge’, ‘the bus’ and so on, signifying first of all that the men in court were informed about the comings and goings in the harbour because they were involved in it themselves, but also that the traffic in the harbour was not very busy and that there were generally only a few ships there each year. ACA, ACR V.ii., p. 684, Curia gilde, 9 Oct 1444. Cf. Ditchburn and Harper, ‘Aberdeen and the outside world’, 378–9.

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amount he would have demanded himself, had he been in Sellen’s position. The aldermen and council decided that Witte should declare the amount that he was willing to pay under oath, after he had given his handkerchief of money in custody to the court. Eventually, they decided that Witte had to pay damages to the amount of 500 pounds. Sellen had to state under oath how many goods had been on board the ship.81 Every barrel of merchandise would be reckoned as a barrel of herring and Sellen would receive half the value for each. For loose goods, such as cheese and wooden shoes, he would be compensated for up to half their value too. Presumably the remainder of the money would be used to recompense the shipowners for the damages to the ship. Whether this would have amounted to half these damages is doubtful, but on the whole the council appears to have stuck to a rule that the colliding skipper had to contribute towards half the losses. As discussed in Chapter 2, the Boeck van Rechte and the Gulden Boeck did not regulate the accidental collision of ships. This was, however, clearly a case of an unintentional clash. The method by which Sellen was reimbursed for his damages was in accordance with the rules laid down in other sea laws, such as, for example, the Lübeck Sea Law, but not with the regulations in the Vonnesse van Damme (Article 15) and the Ordinancie (Article 2), both of which were available to the council as part of the Schiprecht. According to those two laws, the merchants on Witte’s ship ought to have contributed to the damages with a proportion of their goods. The copy of the Schiprecht therefore either was not yet available in 1460, or had not (yet) been applied. Kampen custom instead corresponded to the Lübeck and Hamburg laws. The arrangement that all barrels would be reckoned as barrels of herring appears to be have been the norm in Kampen, perhaps to avoid difficult calculations; in Article 5 of the Gulden Boeck, which concerned jettison, it was laid down that all chests aboard the ship would be reckoned as barrels of herring. A similar case of ship collision was recorded in the Liber Causarum. On 16 February 1493 the council passed judgement in the matter between the plaintiff, Douwe Jacobssoen, and the defendant, Kerstken Wolterssoen, both skippers. Wolterssoen’s ship had collided with that of Jacobssoen and the latter had sunk. The council decided that the value of both ships and their cargoes, in their state before the collision, should be determined, and that the sum of these should ‘pay’ (‘betalen’) for the damages ‘pound equals pound, mark equals mark of both ship and goods’ (‘pont ponts gelyke marck marcks gelyke van schepe ende gude’).82 About a month later, on 14 March, both men appeared in court again with their companions to consider the valuation of the goods. The court decided that the goods should be valued by adding up half the cost price

81 82

GAK, OA, no. 8, ff. 35v–36r, [1460]. GAK, RA, no. 2, f. 36v, 16 Feb 1493.

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and half the market price.83 A third court date was arranged for 26 June 1493. This time a judgement was passed concerning the freightage due for the goods. It was decided that the merchants were due to pay full freight for one half of the goods and half freight for the other.84 The judgement did not specify whether this applied to both ships and whether freight was due for the lost and the saved goods, although both appear to have to been the case. The first verdict corresponded to Article 2 of the Ordinancie (Article 29 in the Schiprecht): The council judges that both ships as they were before the collision should be valued and estimated and the goods aboard both ships at the time of the collision, and from that entire sum the damage of ship and goods shall be paid pound by pound and mark by mark.85 (judgement) And the goods in both ships shall be valued before any of the ships were lost. And the sum of the value of both cargoes together shall then pay for the lost goods pound by pound and mark by mark. Furthermore the value of both ships shall be estimated likewise.86 (Schiprecht) The judgement is presented in a slightly edited form, but the similarities between the two texts are clear.87 The likelihood that Article 29 of the Schiprecht was applied in this case is supported by the fact that this regulation from the Ordinancie, in which the contribution to the damages was calculated in proportion to the value of the ship and goods, as in jettison, is unique in medieval maritime law.88 There is, of course, a possibility that the judgement was not directly based on the Schiprecht and that the usage was 83

84

85

86

87

88

‘Die helffte als sie yn gecofft syn ende dander helffte als sie ther marckt gegulden hebben tot coipmans pryse.’ GAK, RA, no. 2, f. 37r, 14 Mar 1493. ‘Dat men van de ene helffte die vulle vracht van betalen sall ende van dander helffte die halue vracht.’ GAK, RA, no. 2, f. 38r, 26 Jun 1493. ‘Wyset de rait dat men beyde schepen als sie weren voir dat ynzeilen, ende dat guet dat yn beiden schepen yn der tijt des ynzeilens was sal sommeren ende weerdienen, ende van die alynge somme sal men den schaden betalen pont ponts gelyke, marck marcks gelyke van schepe ende gude.’ GAK, RA, no. 2, f. 36v. ‘Soe salmen werderen die goeden in beyden scepen te gelden eer enich scipp verloren was. Dan soe sal die prijs van beyden guede te samen ghesommet betalen dat verloren guet pond ponde ghelijck, marck marcke ghelike. Voert gelikerwys soe selmen prisen die warde van beyden scepen.’ GAK, OA, no. 17, f. 13v. The calculations would in fact have changed slightly as a result of the variation between the judgement and the article from the Ordinancie. In the former the damages to the ship and cargo were divided in proportion to the value of both the ships and all the goods added up. If the goods were worth less than the ship, the merchants would have to contribute more than if the calculations were made separately for the ship and the goods. It is questionable, however, whether we should interpret medieval judgements this precisely. The judges most likely considered the regulations to be the same. Landwehr, ‘Haverei’, 94. See also Chapter 2.

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an adopted custom from one of the neighbouring Zuiderzee towns, but, comparing the wording of both texts, it seems likely that the manuscript of the Schiprecht was available and was applied in Kampen by 1493. This is in accordance with earlier conclusions that the manuscript was received in Kampen in the third quarter of the fifteenth century.89 The second verdict from 1493, which laid down the valuation of the goods, corresponded to a general custom applied in Kampen. The regulations drawn up in 1407 stipulated that, after a jettison, goods should be valued by the ‘least’ and the ‘most’, which must be taken to indicate the cost and market prices.90 The third decision in this case demanded that half freight be paid for one half of the goods and full freight for the other half, meaning that three-quarters of the freight was due for the whole cargo. The payment of freight after ship collision is not regulated in any of the written laws. In this case the collision had, however, been dealt with as general average, concerning which the Kampen laws laid down full freight for all goods, but also that the freightage be reckoned in the contribution towards the damages. This had not occurred here, which may be the reason why only three-quarters of the freight was due to be paid. Only two cases of ship collision appear in the Lübeck sources, neither of which includes a verdict. None is included in Ebel’s collection of Ratsurteile. It is unlikely that only two collisions took place in or near Lübeck harbour in the second half of the fifteenth century and presumably other incidents were mostly dealt with outside the town court. The Lübeck Town and Sea Laws were concise as regards ship collision: if a skipper sailed into another intentionally, he was liable to pay all the damages; if it was an accident, he was bound to reimburse only half the costs. The skipper’s innocence in such matters was to be established by oath. The first entry is dated 1458 and documents the amicable agreement between the representatives of two skippers. Hinrick Vinger had sailed into Hans Bernd’s ship when both were returning from Reval. The collision had happened at night and does not appear to have caused any damage, but for reason of the ‘discord that had arisen between them because of this’ (‘unwillen alse van der wegen under en irresen is’), Vinger was to pay five Lübeck marks to Bernd. All would be forgiven thereafter.91 The other entry consists of two parts. The first is a decision from February 1482, which is followed by the second, a copy of a document drawn up in June 1481. Both record the same collision which had resulted in the sinking of one ship. The document from 1481 laid down that court proceedings about the collision would have to be delayed until Christmas, as the skipper of the surviving ship had to go away on business with his

89 90 91

See Chapter 4. See Chapter 2. AHL, ASA Kanzlei, NStB (Urschrift) 1451–1465 Palmarum, f. 325r, 5 Mar 1458.

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vessel.92 The lawsuit was postponed again in February 1482, for a similar reason, this time until Saint Michael’s day (29 September), as was decided by the town council according to the first entry.93 The outcome of the matter remains unknown, and both Lübeck cases are thus unhelpful in establishing which laws were applied in cases of ship collision. The Reval sources also document a settlement. In 1486 Aleff Neselunck, a merchant from Königsberg, and Herman Wessel, a skipper from Hamburg, appeared before the sitting council to report on a settlement between them. A collision had taken place between Wessel’s ship and another sailed by Cleys Piper. Piper’s vessel had drifted before the stern of Wessel’s ship during a storm. The latter had rammed into the former and Piper’s vessel had sunk. Wessel agreed to a settlement with Neselunck, who represented the parties involved in Piper’s ship, and paid 370 Riga marks. He also promised to organise a wake and a requiem mass at Saint Olav’s Church in Reval for the late Thewes Luttiken who had drowned with the ship. In exchange Neselunck released Wessel from further demands for damages. The entry does not specify whether the sum of 370 Riga marks was a specific portion of the total of the losses caused by the collision.94 The accident had been unintentional and, according to Lübeck law, half the damage would have had to have been reimbursed by Wessel.95 Although the source does not mention the size of the ship, a sum without prejudice of 370 Riga marks seems a small amount for half a ship and half its cargo.96 The sum laid down was perhaps a pay-off to settle the case amicably. After all, neither skipper was responsible for the accident and taking the matter to court would have been expensive. Both the parties did, however, wish to formalise their agreement by confirming it before the council and requesting it to be recorded in the register. In 1495 another case of a (supposed) ship collision was considered by the town court. The plaintiff, Bernt Papke, claimed that the ropes of skipper Gert Avendorp’s ship had broken and that the latter’s vessel had crashed into his ship in Reval harbour. Papke’s vessel subsequently sank. Avendorp replied, however, that Papke’s ship had sunk before his own ship had broken adrift. He had brought along two boatswains to testify to this in court, both his own and Papke’s. The case was decided in favour of the defendant, Avendorp, and the matter was thus considered not to have been a collision at all.97 92 93 94 95 96

97

AHL, ASA Kanzlei, NStB (Reinschrift) 1481–1488, ff. 32r–32v, 9 Feb 1482. AHL, ASA Kanzlei, NStB (Reinschrift) 1481–1488, ff. 32v–33r, 16 Jun 1481. TLA, TM, no. Aa 7, f. 32r, 5 Aug 1486. Lübeck TL, art. 132. In comparison, a hulk that was captured by the Dutch in 1439 had cost 1,025 Riga marks to be built and 400 to be equipped. This was not an enormously large ship and vessels became bigger towards the end of the fifteenth century. Hirte and Wolf, ‘Kogge, Holk, Kraweel’, 766. TLA, TM, no. Aa 7, f. 64v, 24 Nov 1495.

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A third case concerning a ship collision near Reval was recorded in the Danzig registers. In 1488 Tideke Blanke, head boatswain on Thomas Gammeratten’s ship, reported on a collision near Reval harbour on Saint Michael’s Eve, 28 September 1484. Thomas Stangen’s ship had broken adrift (‘driftich geworden’) and collided with Gammeratten’s vessel. The latter had sunk.98 Two years later Gammeratten’s wife appeared before the Danzig court, filing a complaint against Stangen, who was a burgher of Reval, in relation to the collision. Stangen replied to the charges, reporting that the case had been settled by the Reval council. The Danzig court thereupon decided that Stangen would need to produce evidence of the judgement passed by the Reval court.99 A similar complaint filed by the freighters on Gammeratten’s ship received the same response.100 A year later Stangen returned to Danzig with a letter from Reval which stated that the case had been decided there.101 Unfortunately, the entry in the Danzig register does not document the content of this judgement. It only reports that the skipper and the merchants applied separately for compensation of their damages from Stangen. This indicates that only the shipmaster was held liable to reimburse these damages and that the merchants on his ship were probably exempted from contribution. The involvement of the merchants on both vessels involved in a ship collision was not considered in the Lübeck Town and Sea Laws. Both only regulated the liability of the colliding skipper to reimburse half the damages to the other ship. Whether Stangen was indeed judged to be liable to pay half these damages cannot be determined, nor how much he had to contribute towards the lost cargo. As was the case in Lübeck, none of the matters recorded in Reval can assist in establishing which laws were applied concerning ship collision. The Danzig sources do not offer much information either. Although there are two cases of ship collision for which testimonies were recorded, only one lawsuit (from 1445) includes a judgement. In this case, a vessel from Königsberg had collided with a ship from Danzig. As a result, the latter had run aground. The Danzig council decided that the skipper from Königsberg was liable to pay half the damages after he had sworn the crash had been unintentional. The amount of damages had to be established under oath. The Königsberg skipper also had to organise and pay for a pilgrimage, a burial and a requiem mass for all the seamen who had died in the collision.102 Some of the aspects of this verdict are in accordance with Judgement 12, which was drawn up in 1433. These include the oath 98 99 100 101 102

APG, 300, 59/8, f. 46r, 1488. APG, 300, 59/8, f. 52v, 17 Sep 1490. APG, 300, 59/8, f. 52v, 4 Oct 1490. APG, 300, 59/8, f. 52v, 16 Sep 1491. APG, 300, 27/4, f. 172, Danzig to Kneiphof-Königsberg, 9 Nov 1446, as cited by Hirsch, Danzigs Handels- und Gewerbegeschichte, 77. Penintential pilgrimages were quite common in continental Europe for unintentional death or smaller misdemeanours, like insult. See, for example, Van Herwaarden, Opgelegde bedevaarten.

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of the skipper that the collision had been unintentional, the halving of the damages and the fixing of these under oath. Judgement 12 insisted, however, upon an oath by the skipper and two of his crew, and it also regulated the contribution of the merchants towards the damages. In this court case, the verdict only considered both the skippers; a settlement between the merchants may have taken place separately. The testimonies in the first of the two abovementioned cases were given to clarify that the sinking of a Danzig ship had been the result not of a collision, but of an accident. The testimonies were included in two letters to the Common Merchant at Bruges in 1439.103 The other witness statements, from 1458, appear to have been recorded for use in court proceedings. They include two contradictory testimonies concerning which of two ships had collided into the other, and a third statement by five men who had been appointed by the council to inspect the ropes and the anchor of one of the two vessels.104 Unfortunately, an account of the actual court proceedings does not survive. As regards ship collision, there is only evidence of verdicts from three of the five towns. No judgements survive from either Lübeck or Reval. The analysis and comparison of the other judgements is complicated by the fact that the merchants and their goods were considered in the verdicts in some of the studied cases, but not in others. In Danzig the colliding skipper was made to reimburse half the damage to the ship and half the value of the lost goods in the 1430s. The same happened in the second judgement from Danzig from the 1440s and the first verdict from Kampen, which occurred in the 1460s. In the first Danzig case the merchants on the damaged ship were made to contribute towards the lost goods, as in jettison. In the second case the skipper was forced to organise a pilgrimage, burials and a requiem mass in addition to reimbursing the damages, because people had died in the collision. The merchants were, however, left out of considerations, as were their colleagues in the case from Kampen. In a second lawsuit from Kampen from the 1490s the damages to the hit ship and its cargo were divided between both skippers and all the involved merchants. Finally, in Aberdeen in the 1490s the damages to both ships were divided between both skippers. The verdicts were thus different every single time, which can partly be ascribed to the fact that when two vessels collided, there were several possible outcomes: either one or both ships could have been damaged, either could have sunk, the goods might have been lost or damaged and people might have drowned. The judgements did agree that the damages had to be shared between the parties involved in one way or another. The decision from Aberdeen differed from the others in that it laid down the reimburse103

104

APG, 300, 27/3, f. 102v, Danzig to the German Merchant at Bruges, 9 Jan 1439 (both letters). APG, 300, 59/7, ff. 13r–13r, Oct 1458.

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ment of the damages to both ships, whereas in the other two towns, as in the written laws, only the damage to the hit ship (and its cargo) was considered. Nor was there any real uniformity between the Kampen and Danzig verdicts, especially after the former introduced the more complicated calculation included in the Ordinancie in the fifteenth century. A comparison of written law and practice A comparison between written law and practice in Aberdeen demonstrates that some of the judgements passed at its courts corresponded to the original Rôles d’Oléron; the corrupt Scottish translations did not find their way into its practice. The customs recorded in the Rôles were at the time of their ‘codification’ used for the wine trade from the French Atlantic coast to England, Flanders and Scotland and these customs still seem to have been used, at least in Scotland, in the second half of the fifteenth century. In the remarkable instance in which Aberdeen practice appeared to deviate from the Rôles, a similar verdict is known from the Dutch coast. A common practice still possibly existed in this area. Some of the verdicts in Aberdeen differed from those in the rest of northern Europe; contributions towards goods lost in shipwreck were not granted in any of the other towns, nor was the rule that only those who gave their consent to cutting the mast would have to bear the costs applied there. In Kampen it would appear that written laws were used in those cases in which they could be applied. The copy of Dat Schiprecht, which probably arrived in Kampen some time between 1460 and 1475, appears to have been utilised in the last quarter of the fifteenth century. Often, however, judgements were passed according to custom, or new regulations were created for matters which had not previously been considered, as they were in the other towns. Comparing written law and practice in Lübeck confirms that the written laws of the thirteenth century were no longer utilised in court by the second half of the fifteenth century, although similar rules may still have been applied. In many cases regulations had changed or were made more comprehensive, without the town council seeing a need to adapt or supplement its written laws. The existing laws had mostly been drawn up through the initiative of individual men such as Albrecht von Bardewik in 1294 and 1299 and Tidemann Güstrow in 1348, or because regulations needed to be communicated to other towns, like the Hanseatic statutes. The town council and court in Lübeck itself could apparently do without these written laws, because the Lübeck Town Law was not revised or supplemented between 1348 and 1586. The only texts that were applied, although not consistently, were the Hanseatic statutes from the fifteenth century, which were incorporated into Lübeck law. In addition, the court’s verdicts either established rules that originated in custom or laid down new regulations for cases not previously heard. These verdicts thus reflect the law as it existed at a certain

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time and are often the only evidence of the validity of a particular rule.105 The judgements could also be used for future reference, as precedents so to speak, but they were not always adhered to; at times Lübeck’s legal practice was far from uniform.106 A final point of note concerns the similarities that have appeared between the Lübeck judgements and the laws laid down in the Hamburg Shipping Law of 1497. This resemblance reflects the conformity in legal practice between the two towns that apparently continued in the fifteenth century. Concerning Reval, it is possible to conclude that the town council was inconsistent in its use of the Hanseatic statutes; it applied Article 93, but not Article 94. The Lübeck Town Law was more consistently used, although mostly not in the form available in writing in Reval itself. Lübeck law was continuously developing through new court judgements and some of these Lübeck verdicts were formally or officially collected in Reval. Knowledge of regulations might also have reached Reval through visitors to and from Lübeck. Despite this, legal practice in the two towns was not entirely identical. Indeed, as has become evident, court proceedings in Lübeck itself were not always consistent, especially as regards the payment of freight after shipwreck. It is exactly on this issue that Reval’s practice deviates from that of Lübeck. In principle, and according to medieval views, the law used in Reval was Lübeck law and identical to that applied in Lübeck. Legal practice in the two towns was therefore in theory the same. In practice, occasional differences were unavoidable because of the dynamic character of ‘Lübeck law’. In Danzig’s case the border between written law and practice is also rather fluid. This is because the judgements in Waterrecht manuscript 1 were drawn up to be used as written laws but had, at least partly, come forth from actual court proceedings. It is possible to conclude that Danzig’s verdicts were only in some instances based on written laws. From the 1420s to 1440s the council used its written laws in as far as they were applicable. When the judgements in Waterrecht manuscript 1 had been drawn up, the Vonnesse had occasionally been utilised, and in some of the verdicts these judgements were, in their turn, applied. In the 1480s none of the written laws appears to have still been in use, apart from perhaps the Hanseatic statutes. Compared to Lübeck and Reval, Danzig showed an early tendency to record its decisions, which can probably be ascribed to its role as a centre of maritime justice in Prussia. It was assigned this function by the Grand Master and the other Prussian towns, and was confirmed in it by the Polish king after 1454. Danzig’s large collection of sea law texts and its desire to receive Wisby’s law, which was considered to be more comprehensive than 105

106

Ebel, Lübisches Recht, 211, called the judgements the only indisputable and pure source of Lübeck law in the fourteenth and fifteenth centuries. The already mentioned collection of judgements made by Johann Rode von Stadthagen in the Codex ordaliorum Lubecensium of 1515 is an example of this.

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its own, are related to this role. But in practice the Danzig court made little use of these texts apart from the time when it was drawing up some of its judgements which, in their turn, were applied in later cases. In that respect Lübeck and Danzig were similar: both maintained a very dynamic maritime law whose contents were dependent on the whims of the council. This is in accordance with the autonomous and powerful role played by both towns in the fifteenth century. Reval, on the other hand, was dependent on Lübeck and therefore more stable in its jurisdiction. Unless a judgement was overruled by the Lübeck Oberhof, Reval in general stuck to its laws. Although the five towns were similar in that none made exhaustive use of its written laws, their reliance on the books of law was slightly different. Danzig utilised its judgements the most, which is due to the fact that they derived from its own practice. Kampen also made use of its own laws where possible and applied the Ordinancie in at least one matter in which the Kampen laws were incomprehensive. Lübeck, as the third town that had drawn up its own laws, only possessed older written laws which had become outdated. These laws were therefore no longer used and Lübeck practice is mainly reflected in its judgements. These judgements were, in principle, valid in all towns using Lübeck law, including Reval. Legal practice in the two towns did not, however, always correspond and Reval was more consistent in its judgements than Lübeck. This was because Reval was dependent on Lübeck and could not change the latter’s law at will. Aberdeen, finally, appears not to have owned any copies of written sea laws, but largely conformed to the customs laid down in the Rôles d’Oléron, customs which were in theory valid throughout north-western Europe. Conclusions In conclusion, it is possible to state that no common legal practice existed as regards the use of the written sea laws and the judgements passed in cases of shipwreck, jettison and ship collision. The five towns made use of their written laws to differing degrees in the fifteenth century: Danzig and Kampen applied the written laws most regularly, probably because they were the most up to date, whereas Aberdeen and Reval were loyal to existing customs and Lübeck formulated its own decisions and changed them at will. None of the five towns made exhaustive use of its written laws, but applied them when considered appropriate. In other cases the courts used their common sense when passing judgement. As the courts consisted of men with experience in trade and shipping, verdicts would be based on their practical knowledge of these subjects. A comparison of the court proceedings in cases of shipwreck, jettison and ship collision has established that there was no uniform practice in urban northern Europe in the fifteenth century. The decisions concerning all three subjects regularly differed, even within the towns themselves. Occasional similarities did exist (the use of the wording ‘over ship and

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goods’ is a good example) but the overall picture is characterised by an individual legal practice in each of the towns. The most striking differences existed between Aberdeen and the other towns, but this is perhaps partly because a relatively large number of judgements from the Scottish town have survived; in a number of cases differences could be indicated between Aberdeen and one other town because no decisions from the others survive.

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Final Conclusions This study has aimed to determine whether it is appropriate to speak of a common northern European law of the sea in the period before 1500. A detailed analysis of the spread of the written laws, of their content and of various aspects of legal practice has proven that a common maritime law never came into being in medieval northern Europe. Instead, local variations continued to exist throughout the period, revealing themselves in varying collections of manuscripts, diverging regulations in the law books, a different use of the written laws and dissimilar judgements in the town courts. Two forms of written sea laws came into existence in the Middle Ages: the customary sea laws and maritime regulations as part of urban laws. Although the customary sea laws were spread over a large area, the local maritime laws continued to play an important role in their towns of origin. When such towns possessed copies of any of the customary sea laws, these were used as auxiliary laws and did not replace the regulations in the town law. There is no evidence that the Rôles d’Oléron were used throughout northern Europe and that the town laws only include additions to them, as was recently suggested.1 A comparison of the manuscript collections of Aberdeen, Kampen, Lübeck, Reval and Danzig has, moreover, shown that the customary sea laws were not available to all of the towns and that the five town courts had differing book collections at their disposal. The contents of the various maritime laws also show some important differences when comparing the regulations on shipwreck, jettison and ship collision. Although some variations were due to developments in sea shipping, and although similarities did also exist between some of the laws, it is certainly inappropriate to speak of common contents. This conclusion is further supported by a more detailed comparison of the specific laws of three of the towns (Kampen, Lübeck and Danzig) with the compilations considered closest to them. Although, again, similarities existed (Lübeck even copied about half of the Hamburg Ship Law), the regulations varied to a large extent and each of the three laws must therefore be considered specific to each of the towns. The administration of maritime justice was generally undertaken by the town councils in medieval northern Europe. Only in Scotland did the bailie court, and in some Prussian towns the Schöffengericht, deal with maritime 1

See Chapter 5.

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cases. The town courts could, however, have very different roles. Whereas the role of the courts of Kampen, Reval and Aberdeen was quite restricted, only functioning as local courts, the Lübeck council also functioned as Oberhof for all the other towns that were granted Lübeck law and the Danzig council was appointed as central maritime court for the whole of Prussia, and later Poland. None of the five towns made exhaustive use of its collection of written laws, but the reliance of each on their books of law was different, dependent on the existence of any recent written compilations (for example the Hanseatic statutes and the Danzig judgements). The verdicts passed by the town courts in matters of shipwreck, jettison and ship collision were therefore only sometimes based on any of the written laws. They do, however, also show variations and again, it would not be appropriate to speak of a common legal practice. Many of the differences that existed between the five towns under scrutiny in this study can be explained by considering the varying roles that each of them played on the European stage. Lübeck was the head of the Hanseatic League, it was politically autonomous and it had its own town law, which was granted to many other towns on the Baltic coast. For these towns, the town council functioned as an Oberhof. Reval was legally dependent on Lübeck and relied politically on the Teutonic Order. It had no laws of its own and the town council therefore applied the Lübeck customs consistently in court. The Teutonic Order was also in charge in Danzig in the fourteenth century and granted it Kulm law, like most of its Prussian towns. In the fifteenth century, Danzig became largely autonomous and was instituted as a centre of maritime justice in the area, for which it produced its own laws. Like Danzig, Lübeck and Reval, Kampen was a member of the Hanse, but only when it suited the town commercially. Politically and legally, Kampen was also practically autonomous. The town had its own town law, which did not spread elsewhere, and had an independent court. Finally, Aberdeen formed an integral part of the Kingdom of Scotland, where burghal laws were largely uniform. The town council relied on the same maritime customs that were used throughout Scotland and its burghers could make use of several national courts of appeal. Based on the whole study, Aberdeen shows the most deviations from the other four towns: in the administration of justice, in the availability of written laws and in its judgements. Two explanations can be provided for this. First, Aberdeen was the only one of the five towns that was not a ‘German’ town. Though Kampen, Lübeck, Reval and Danzig experienced very different developments in their histories, they can be considered to have been part of the German urban legal tradition. This meant that, as centres of commerce, they were able to obtain a large measure of autonomy and were administered in accordance with a town law that was either unique to a town, as was the case in Kampen, or disseminated among various towns, like the Lübeck, Magdeburg and Kulm laws. The towns

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were generally not subject to any other laws and the town councils formed the highest legal authority, though relations of dependence could exist between mother and daughter towns, as was the case between Lübeck and Reval. Like most towns in Europe, Aberdeen had a legal status separate from that of its surrounding countryside. But in contrast to the development in German towns, where the town councils strove to gain independence from (local) lords, in Scotland the burghs were created and developed under royal patronage. This patronage also ensured that a common body of law came into existence which was applicable in all Scottish burghs. In addition, the burgh courts were part of a structure of courts which also included the Chamberlain’s Eyre and the Court of the Four Burghs (and, as we have seen, some cases were referred to King and Council). Moreover, the officers of the court were considered to be dispensing the king’s justice and, in general, burgesses were not treated very differently from other subjects of the realm. Aberdeen was thus subject to a legal structure that varied significantly from that in the other four towns and to a central body of law, which reduced the possibilities of developing locally differing laws or of being affected by legal influences from outside Scotland. Second, as with other Scottish laws, both burghal and general, maritime law appears to have been influenced by England, rather than by any of its continental trading partners. As a result, the Rôles d’Oléron were incorporated into the central body of Scottish laws in the fourteenth century, though they were most likely already used in their customary form before then. Interestingly, though, none of the English additions to the Rôles appears to have reached Scotland before the sixteenth century. But, like in England, none of the other maritime laws circulating in Europe made an impact on its legal traditions in the Middle Ages. As regards maritime law, Aberdeen should therefore be considered part of north-western Europe (France, England, Flanders and perhaps Holland-Zeeland), rather than of northern Europe. In contrast to northern Europe, north-western Europe does seem to have had a common tradition based on the Rôles d’Oléron. However, whether such a separate tradition truly existed has not been the subject of this study. In medieval northern Europe, whether including or excluding Scotland, a common tradition most definitely did not exist, as this study has made abundantly clear.

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Köln – Nürnberg – Lübeck. Beitrag zur vergleichenden Städteforschung und zur spätmittelalterlichen Aktenkunde (Cologne 1959). Bürgereinung und Städteeinung. Studien zur Verfassungsgeschichte der Hansestädte und der deutschen Hanse (Cologne etc. 2001). Pohlmann, Hans-Jörg, ‘Die Quellen des Handelsrechts’, in H. Coing, ed., Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, vol. I, Mittelalter (1100–1500). Die gelehrten Rechte und die Gesetzgebung (Munich 1973), 801–34. The Practicks of Sir James Balfour of Pittendreich, vol. II, ed. Peter G. B. McNeill (Edinburgh 1963). Reincke, Heinrich, ‘Die ältesten hamburgischen Stadtrechte und ihre Quellen’, Zeitschrift des Vereins für hamburgische Geschichte 25 (1925), 1–4. ‘Das hamburgische Ordeelbook von 1270 und sein Verfasser’, ZRG GA 72 (1955), 83–110. Robinson, O. F., T. D. Fergus, and W. M. Gordon, An Introduction to European Legal History (Abingdon 1985). Runyan, Timothy, ‘The Rolls of Oleron and the Admiralty Court in fourteenth-century England’, American Journal of Legal History 19 (1975), 95–117. Schweitzer, Julia, Schiffer und Schiffsmann in den Rôles d’Oléron und im Llibre del Consolat de Mar. Ein Vergleich zweier mittelalterlicher Seerechtsquellen (Frankfurt am Main etc. 2007). Schweitzer, Robert and Waltraud Bastman-Bühner, eds, Die Stadt im europäischen Nordosten. Kulturbeziehungen von der Ausbreitung des Lübischen Rechts bis zur Aufklärung (Helsinki and Lübeck 2001). Sellar, W. David H., ‘A historical perspective’, in Michael C. Meston, W. David H. Sellar and Lord Cooper, The Scottish Legal Tradition. New enlarged edition (Edinburgh 1991), 29–64. Simon, Ulrich, ‘Appellationen von Reval nach Lübeck. Aus zurückgekehrten Akten des Archivs der Hansestadt Lübeck’, in Schweitzer and Bastman-Bühner, eds, Die Stadt im europäischen Nordosten, 47–63. Simson, Paul, Geschichte der Danziger Willkür (Danzig 1904). Geschichte der Stadt Danzig, 4 volumes (Aalen 1967 (in 3 volumes), reprint of Gdansk 1913–18). Smith, J. S., ed., New Light on Medieval Aberdeen (Aberdeen 1985). Stark, Walter, Lübeck und Danzig in der zweiten Hälfte des 15. Jahrhunderts. Untersuchungen zum Verhältnis der wendischen und preußischen Hansestädte in der Zeit des Niedergangs der Hanse (Weimar 1973). Stevenson, Alexander, ‘Trade with the South, 1070–1513’, in Lynch, Spearman and Stell, Scottish Medieval Town, 180–207. ‘Medieval Scottish associations with Bruges’, in Terry Brotherstone and David Ditchburn, eds, Freedom and Authority. Scotland, c.1150–c.1650: Historical and Historiographical Essays Presented to Grant G. Simpson (East Linton 2000), 93–107.

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UNPUBLISHED THESES Ditchburn, David, ‘Merchants, Pedlars and Pirates. A History of Scotland’s Relations with Northern Germany and the Baltic in the Later Middle Ages’ (Unpublished PhD thesis, University of Edinburgh 1988). Stevenson, Alexander William Kerr, ‘Trade between Scotland and the Low Countries in the Later Middle Ages’ (Unpublished PhD thesis, University of Aberdeen 1982).

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Index Aachen, 121 abandon, 29–30, 31, 52, 122, 159–60, 169, 171–3, 177 Abel of Denmark, 58 Åbenra, 11 Aberdeen, xiii, 3, 5, 53–8, 75–80, 81–8, 108–9, 145–6, 154–7, 164, 166, 167–8, 175–6, 177–8, 182–4, 186–8, 194–8, 199–201 alderman, 56 arbitration, 155 assize, 145, 154–7, 167–8, 175, 182, 183, 187 bailie court, 56, 145, 155, 157, 164, 175, 182, 183, 188, 199 bailies, 56, 80, 85 burgh court, 56, 64, 156 council, 56, 80, 119, 145 dean of guild, 56, 57 guild, 56, 175–6 guild court, 56, 145 head court, 56 provost see alderman sheriff, 80 statutory rights, 80 town community, 56 see also Old Aberdeen Adolf II of Schauenburg, count of Holstein, 61 Adolf III, count of Holstein, 62n Albert I, bishop of Riga, 66 Alt-Lübeck, 61; see also Lübeck Alt-Stettin, 147, 149, 153–4; see also Stettin Amsterdam, 4, 61n, 144n, 146–7, 173 anchor, 10, 31, 35, 45, 48, 121–2, 123, 186, 194 Anklam, 64 Antwerp, 58 Aquitaine, 11–12 Arnemuiden, 156, 175 average general, 3, 13, 15, 18, 20, 25, 31–46,

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51, 178–87; see also cutting of mast, jettison particular, 31, 32 petty, 31, 32 Balfour, James, 82n, 87 Bannatyne, John, 84 Bardewik, Albrecht von, 18, 45, 93, 95, 129–32, 136, 142, 195 beach robbery, 145n Belt, Little or Great, 178 Bergen, 9, 146, 168 Bergen op Zoom, 58 Bergen Town Law, 9–10, 30, 36, 38, 44, 47 Berwick, 54 bills of exchange, 8 Bjarkeyjar réttr, 9 Bjärköarätten, 10, 40, 44 Bohemia, 70, 100 Boizenburg, Jordan von, 18 Bolsward, 179 Bordeaux, xiii, 112 Borgarthing, 9 Bornholm, 173 bottomry, 15 Bourgneuf, Bay of, 7 Braunsberg, 74 Braunschweig, 170 Bremen, 19, 95n, 144n Brielle, 61n Brittany, 11 Bruges, 12, 17, 57, 58, 65, 74, 76, 77, 80 Burgundy, duke of, 61 Byczyna, Konrad of, 104 carelessness, 33, 47n, 48, 185–6 Charles V, emperor, 61 ordinance of (1551), 31n Charles V of France, 12n charter party, 8, 9, 10, 86, 156, 168, 174 Christopher I of Denmark, 68, 97 Codex Hammurabi, 46n collision see ship collision

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Index Cologne, 59, 77 contract breach of, 11, 13 carriage see charter party freight see charter party convoy, 10 Copenhagen, 93 custom, 1n, 2, 14, 15, 17n, 55, 56, 110, 111, 118, 120, 121, 122, 123, 124, 131, 134, 149, 156, 157, 176, 178, 182, 183, 185, 189, 191, 195, 197, 200 customary sea laws, 13, 17, 25, 157, 199 Custuma Portuum, 82, 83, 85 Damme, 12, 161 Danzig, 3, 4, 5, 17, 23, 25, 38n, 42n, 44n, 53, 57n, 58, 61, 69–80, 91, 100–7, 108–9, 110, 137–42, 143, 146, 147, 148, 152–4, 161–3, 164–5, 166–7, 173–4, 177, 179–82, 187, 193–8, 199–201 alderman, 154 Altstadt, 70, 72, 73 Artushof, 104 bailiff see Schultheißen by-laws, 101–2, 108, 138–9 council, 73, 101, 103, 106, 109, 137–41, 142, 143, 146, 147, 152–4, 161, 163, 164, 180–1, 187, 193, 194, 197 court see council Hakelwerk, 73 Hauskomtur, 72 judgements, 29, 52, 102–3, 108, 109, 110, 137–8, 139–42, 143, 161, 163, 173, 174, 179–82, 193–4, 196–7, 200 Jungstadt, 73, 101 Komtur, 72, 73, 147 maritime court, 73, 79, 103, 109, 143, 146, 152–4, 163, 164, 196, 200 Neustadt, 73 Rechtsstadt, 71, 72, 73, 138 Schöffengericht, 72, 146, 153, 162, 164, 199 Schultheißen, 71, 72, 100, 154 statutory rights, 73, 79, 138 David I of Scotland, 54 Dee, river, 53, 54 Denmark, 11, 16, 21, 60, 66, 93, 148, 167 Deventer, 61n, 92

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Dieppe, 157 Dirschau, 149 discipline, 8, 24, 137, 144 disputes, settling of, 10 Don, river, 53 Dordrecht, 4, 61n Dorpat, 69, 179 Drenthe, 58, 61 Dreyer, J. C. H., 96 drunkenness, 11 Dundee, 54, 156 duties of crew, 9, 14, 15, 18, 30, 136, 137, 139 of freighters/merchants, 9, 124 of pilots, 13, 15 of shipowners, 24, 137 of skippers, 8, 15, 24, 124, 137 Edinburgh, 3, 54, 57, 155, 156, 157, 168, 177 Edward III of England, 12 Eidsivathing, 9 Elbing, 64, 72, 74, 95, 146, 149, 151 Elburg, 61n Eleanor of Aquitaine, 12 England, xiii, xiv, 3n, 7n, 11, 12, 13, 17, 25, 28n, 34, 53, 54, 74, 76, 86, 87, 88, 95n, 110, 111, 114, 119, 122, 134, 148, 195, 201 admiral, 12 Eric Glipping of Denmark, 98 Eric Plogpenning of Denmark, 68, 97 Estonia, xiii, 62, 66–8 Falsterbo, 77 félagh, 9n felony, 12 Finland, 174 Finnish Gulf, 67 Flanders, xiii, xiv, 11, 12n, 16, 23, 34, 54, 57, 60, 69, 74, 77, 95n, 103, 110, 111, 132, 133, 134, 135–6, 141, 147, 161, 173, 176, 195, 201; see also Low Countries Flandrischer Copiar Nr. 9, 24 Flensburg, 11 Forth, Firth of, 54 France, xiii, xiv, 9, 12, 13, 17, 25, 34, 76n, 86, 110, 111, 114, 119, 121, 134, 201 Frederik I, emperor, 62, 78 Frederik II, emperor, 62, 78

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freight see freightage freightage, 10, 20, 28n, 39–42, 52, 122, 139, 154, 155, 160, 163, 168, 169, 170, 180, 186 payment of, 13, 15, 18, 20, 28–9, 30, 31, 52, 108, 109, 122, 140, 143, 147, 155, 159, 160, 162, 167, 168–74, 177, 181, 190–1, 196 pro rata itineris, 29, 31, 140, 160, 168, 170, 172, 173, 177 Frostothing, 9 Gdan´sk see Danzig Gemen, Godfried von, 21 General Swedish Town Law, 10 German Empire, 58, 62 German law, 100, 150 Germany, northern, xiii, xiv, 10, 16, 70–2, 134 Gotland, 10, 19, 22, 67, 77, 147, 149, 185 Gotland Sea Law, 1, 21–3, 27, 29, 38, 42, 48n, 86, 95n, 97, 105–7, 108, 124n, 173, 178 Amsterdam edition (1532), 22–3, 38, 97, 107 Copenhagen edition (1505), 21–2, 23n, 37n, 38, 42, 105–6, 107, 124n Copenhagen manuscript, 21n, 38n, 105, 107 Danzig manuscript, 105–6 Lübeck manuscripts, 23, 95n, 97 Gràgàs, 10, 44 Greifswald, 64, 163 Groningen, 58 Guelders, duke of, 61 Gulathing, 9 Güstrow, Tideman, 94, 195 Haderslev, 11 Haithabu, 11 Hamburg, 2, 4, 16–20, 23, 25, 27, 35, 40, 43, 46, 58, 80, 126–34, 135, 142–3, 148, 170, 174, 178, 192 council, 126, 128, 129, 136 law, 94, 95n, 96, 97, 127, 134, 136 Hamburg Ship Law, 3, 10, 15, 18–20, 41, 44, 45, 46, 47, 49, 50, 51, 52, 110, 126–34, 142, 199 1259 letter from Hamburg to Lübeck, 32, 40, 47, 126–8, 142–3 of 1301/6, 29, 30, 36, 40, 128–34 of 1497, 28, 30, 32, 34, 35, 43, 45,

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46, 47, 51, 121, 174, 178, 180, 184, 185, 187, 196 Hamburg Town Law 18–20, 95, 128, 129 revised, 23, 25 Stade manuscript, 18 hanse, 65, 74, 128, 132–3, 136 Hanse (Hanseatic League), 4, 23–4, 25, 57–8, 60–1, 64–6, 69, 74–5, 80, 86n, 91, 96, 107, 148, 200 Bergen kontor, 57n Bruges kontor, 14n, 15, 24, 57n, 95 Common Merchant (Bruges), 161, 194 Common Merchant (London), 24 Livonian Third, 69 Livonian towns, 66, 69, 99 London kontor, 57n meetings (Hansetag), 23, 65, 66, 69, 74, 80, 91, 106, 137, 177 Netherlandish towns, 66 Novgorod kontor, 19, 20, 57n oosterlinges, 24, 95, 96n Prussian towns, 66, 74–5 recesse, 23–4, 66, 92, 95, 96, 100, 107, 137, 159, 160, 162, 169, 170, 171, 172, 173, 177 Wendish towns, 66, 74, 75, 137 Westfalian-Prussian Third, 74 Hanseatic Sea Law (1614), 31n, 52, 170 Hanseatic statutes, 3, 21, 23–4, 25, 29, 30, 31, 96, 99–100, 108, 109, 122, 126, 137, 159–60, 162–3, 165, 168, 169–71, 173–4, 177, 195, 196, 200 Harderwijk, 61n Harfleur, 12n Harlingen, 22n hásetar, 9, 39 Henry I of England, 28n Henry II of England, 12, 28n Henry III of England, 28n Henry VI, emperor, 12n Henry the Lion, duke of Saxony and Bavaria, 62n, 78 hire, ship’s, 10, 18, 136, 154 hiring (crew), 14, 15 Holland, 23, 60, 61, 76, 77, 201 Holstein, 61 count of, 19n, 61 Huisduinen, 59 Iberian peninsula, 76 ice, 20, 180

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Index Iceland, 10, 170 IJssel, river, 58, 59, 61, 167 insurance, 30–1 Inverkeithing, 54 James I of Scotland, 86 James III of Scotland, 86 jettison, 3, 5, 10, 13, 15, 18, 20, 27, 31–46, 51–2, 86, 100, 113, 120–1, 123–4, 125–6, 127, 128, 136, 139, 140–1, 142, 144, 163, 165, 166, 170n, 175, 178–87, 190, 194, 197, 199, 200 of humans, 11 see also average, general Jónsbók, 10, 36, 38, 44, 47 Kalmar, 163 Kampen, 2, 3, 4, 5, 17, 20–1, 25, 46, 53, 58–61, 75–80, 88–92, 108–9, 110, 120–6, 142, 143, 146, 147, 149, 158, 163, 164, 166–7, 168, 173, 177, 179, 183, 187, 188–91, 194–8, 199–201 aldermen see schepenen bailiff see schout burgomasters, 60 council, 90, 120, 124, 146, 149, 158, 164, 188–9 councillors see raden gemeente, 60 higher court, 60, 146 raden, 60 schepenen, 60, 146, 164, 188–9 schout, 60 statutory rights, 80 town community see gemeente Kampen Town Law, 20–1, 29–30, 31, 40, 42, 43, 45, 46, 47, 50, 51, 52, 108, 110, 120–6, 142, 149, 187 Boeck van Rechte, 21, 35, 36, 42, 43, 45, 60, 88–90, 108, 120–4, 142, 158, 189 Gulden Boeck, 21, 35, 36, 45, 60, 88–90, 91, 108, 120, 122, 124–6, 142, 158, 189 Kasimir of Poland, 70, 73, 153 Kiel, 95, 149 Knut IV of Denmark, 62 Kolberg, 163 Königsberg, 61, 72n, 74, 192, 193 Kulm, 72n, 74, 100, 138n

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law, 79, 107, 108, 146, 147, 162, 164, 200 Kulm Town Law, 72, 100 Lanark, 54n Landrecht (land law), 3, 28 Langenbeke, Hermann, 19, 23 La Rochelle, xiii, 112 Latvia, 66 Laws of the Four Burghs, 54, 56, 80, 82, 84, 85, 109, 156, 157 Leges Quatuor Burgorum see Laws of the Four Burghs Leis Willelme, 11, 39 Leith see Edinburgh lex mercatoria, 1 Lex Rhodia de Iactu, 23, 185 Liber Horn, 12n, 111, 114 Liber Memorandum, 12n lighter, 15, 123, 185, 187 Lindanyse, 67; see also Reval Linlithgow, 54n Livonia, 62, 66, 67, 68, 69, 79, 180 bishop of, 19 loading, 13, 15, 20, 129, 136, 139, 154, 162, 180–1 windegelt, 129 London, xiii, 76, 77, 175 Low Countries, 13, 86; see also Flanders, Netherlands Lübeck, 2, 3, 4, 5, 11, 16–19, 20, 21, 22, 23, 24, 25, 34, 35, 40, 43, 46, 53, 58, 61–6, 74, 75–80, 92–7, 100, 108–9, 110, 126–37, 142–3, 146, 148, 149–52, 158–60, 162, 164–5, 166–7, 168–73, 174, 177, 178–9, 180, 181, 184–6, 187, 191–2, 194, 195–8, 199–201 burgomasters, 62–3 bursprake, 64 communitas, 63–4, 79 council, 62–3, 79, 95, 97, 108, 126, 127, 128, 136, 146–52, 158, 159, 160, 164, 168, 169, 170, 171, 172, 176, 177, 178, 184, 185, 187, 193, 195 court see council Echteding, 62 governor see Vogt law, 16, 17, 20, 64, 68, 71, 72, 79, 94, 95, 96, 99, 100, 105, 106, 109, 126, 133, 148, 149, 150n, 158, 159–61,

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Lübeck (cont.) 164, 165, 171, 172, 177, 178, 179, 184, 185, 192, 195, 196, 200 Niedergericht, 64, 146; see also Vogtding Oberhof, 5, 64, 68, 79, 146, 149–52, 159, 160, 161, 164, 167, 172, 197, 200 statutory rights, 62, 79 town community see communitas Vogt, 62, 64 Vogtding, 62, 64; see also Niedergericht see also Alt-Lübeck Lübeck Sea Law, 3, 18, 29, 30, 36, 40, 41, 44, 45, 46, 47, 95–6, 99, 108, 109, 110, 126–34, 135–7, 142–3, 160, 168, 174, 176, 189, 191, 193 Lübeck Town Law, 10, 17–18, 21, 23, 28, 29, 35, 36, 38, 44, 45, 46, 47, 68, 79, 92–5, 96, 97–9, 100, 102, 108, 109, 126, 128, 129, 135–7, 144, 149, 160, 168, 170, 171, 172, 173, 174, 178, 184, 191, 193, 195, 196 Danzig manuscript, 17, 93, 100, 108 Elbing manuscripts, 18, 93, 94n Kiel manuscript, 94n Kolberg manuscript, 94n Reval manuscripts, 17, 18, 93, 97–9, 108, 127, 149–50 revised (1586), 95, 136, 170 Tønder manuscript, 93 Magdeburg, 100 law, 71, 79, 100, 108, 146, 164, 200 Magdeburg Town Law, 71, 72, 100 Magnus Eriksson of Sweden, 10 Magnus Hakonson of Norway, 9, 10 Malcolm III of Scotland, xiii, 54 Margaret of Scotland, xiii, 54 Margaret, Queen Dowager of Denmark, 68, 97 Marsdiep, 15, 59, 120, 123, 125n, 167n mast, 20 cutting of, 31, 32, 34–5, 43–5, 46, 52, 121–2, 136, 183–4, 187, 195; see also average, general Mediterranean, 7, 31 Middelburg, 22n, 58 Monynet, James, 83 Mottlau, river, 70

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Narva, 69, 152 Netherlands, xiii, 14, 16, 17, 31n, 61n, 78, 95n; see also Low Countries Normandy, 11 North Berwick, 183 Norway, xiii, 9, 60, 65, 74, 149, 168, 169n, 170 Notow, 169 Novgorod, 19, 46, 65 Novgorod Skra, 10n, 20, 34, 35, 36, 40, 45, 46, 121 Old Aberdeen, 53; see also Aberdeen Oldenburg, 19, 95n, 149 Oléron, 11, 12n, 13, 22, 111 ommelandvaart, 58, 74, 77, 78, 135 orality, 150, 167 Ordinancie, 3, 14–16, 21, 23, 24, 27, 28, 29, 32, 34, 35, 37–8, 40, 41, 42, 43, 45, 46, 47, 49, 50, 51, 52, 86, 90, 91, 103–5, 110, 120–6, 134, 139–42, 174, 178, 179, 180, 184, 189, 190, 195 Amsterdam manuscript, 14, 15, 16, 91 Groningen manuscript, 14n, 15, 16 Ordnung für Schiffer und Schiffsleute, 18, 21, 23, 96, 108, 109, 126, 136–7, 144 Orkney, earl of, 167, 168n, 175 orlop, 86, 186–7 Ösel, 176 Oslo, 9 Ostfriesland, 95n Overijssel, 58, 61 overloading, 10, 15, 20, 123, 136 Oversticht, 58 peacekeeping, 14 Perth, 54, 156 pilgrimage, 20, 32, 120, 121, 125, 158, 193, 194 lotelghelt, 32, 120–1 pilot, 13, 15, 125; see also duties piracy, 12, 31, 57, 58n, 123, 124, 145n, 153 Pittendreich, 156n Poland, xiii, 5, 70, 72, 75, 76, 78, 143, 163, 164, 200 Pomerania, 70, 72, 100 Pomerania, Eastern, 69, 70, 72, 74, 78, 100

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Index Portugal, 7 prize, 12 Prussia, 5, 16, 69n, 70, 74, 76, 79, 103, 109, 138, 143, 146, 152, 161, 164, 196, 200 Przemysław II, duke of Eastern Pomerania, king of Poland, 70, 72, 79, 100 punctuality, 10 Queensborough, Inquisition of, 12 Quoniam Attachiamenta, 82, 85 Rasaborg, 174 Regiam Majestatem, 82, 83, 84, 85, 87 Reid, Robert, bishop of Orkney, 85 Reval, 3, 4, 5, 17, 53, 57n, 64, 66–9, 75–80, 97–100, 108–9, 146, 149–52, 159, 160–1, 162, 164–5, 166–7, 169–73, 174–5, 176–7, 179, 187, 192–3, 194, 195–8, 199–201 bishop, 68 burgomasters, 68 captain see Vogt council, 68, 99, 146, 152, 159, 160, 169, 170, 171–2, 173, 176–7, 179, 187, 193 court see council Domberg, 68 Echteding, 68 Eddach see Echteding Hauskomtur, 68 Komtur, 68 Oberstadt, 68 town community, 68 Unterstadt, 68 Vogt, 67 see also Lindanyse, Tallinn Revele, 67 Rhineland, 59, 77, 78 Richard I of England, 12, 28n Riga, 2, 4, 17, 18–20, 25, 35, 40, 43, 46, 66, 68, 69n, 95n, 99, 129, 147, 148, 149, 173 flag, 20 Riga Town Law, 10n, 18–20, 30, 32n, 39, 43, 44, 46, 129–34, 147 revised, 20, 36, 40, 44, 47, 121, 133 rights of the crew, 15, 18, 20, 136, 139 Robert the Bruce, 78 Rocamadour, 121

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Rôles d’Oléron, xiii, xiv, 1, 2, 5, 11–14, 15, 16, 22, 27, 29, 30, 32, 33, 34, 36–7, 38, 39, 40, 41, 45, 46, 47, 48, 49, 51, 52, 81–5, 86, 87, 88, 108, 109, 110–20, 134, 140, 143, 144n, 157, 161, 170, 175, 176, 182, 195, 197, 199, 201; see also Vonnesse van Damme, Scottish ship laws Roman Law, 28, 94, 181n Rostock, 64, 95, 146 Rotterdam Insurance and Average Decree (1721), 42 Roxburgh, 54 Russia, 20n, 69, 74, 76 Saint Adalbert of Canaperius, 70 sale of cargo, 13, 15 of gear, 13, 20 of ship, 13, 20 salvage, 10, 20, 24, 28, 29, 30, 126, 128, 136, 159, 174, 177 money, 126–7, 128, 132, 160, 173, 176–7, 187 of gold and silver, 126–7 Santiago de Compostela, 121, 158 Saxon Law, 94 Scandinavia, 5, 6, 9–11, 25, 33, 34, 39, 43 laws, 10, 25, 33, 34, 35n, 36, 39, 43, 45, 47, 134 Scania, 61, 77, 90 Schifferordnung, 24, 100, 104, 107, 137, 144 Schleswig, 11, 135 Schleswig Town Law, 11 Schütz, Kaspar, 104 Scotland, xiii, xiv, 5, 11, 13, 25, 34, 53, 77, 80, 81–8, 109, 110–20, 134, 145, 148, 164, 168, 195, 200–1 acts of parliament, 56, 84, 85, 86, 87, 109, 149, 186 admiral, 56n, 57 admiralty court, 56, 145, 157 baron court laws, 82 burgh court, xiv, 201 burgh laws, 5, 54, 55, 80, 81, 82, 83, 85, 114, 145, 149, 154 Chamberlaine’s Eyre, 55, 57, 80, 201 College of Justice, 57 Conservator of the Scottish Privileges, 57

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Scotland (cont.) Court of the Four Burghs, 54–5, 57, 80, 146, 155n, 157, 164, 201 depute admirals, 56–7, 145 forest laws, 83, 84, 85 general council, 168 guild laws, 82, 83 King’s Council, 57, 80, 157, 201 Leges Forestarum see forest laws Lords of Council, 146, 155n, 157, 164 parliament, 56, 57, 80, 86, 146, 156, 164 Practicks, 82n, 86 statutes, 82, 83, 85 Scottish ship laws, 13, 29, 37, 39–40, 81–5, 108, 110–20, 155, 175, 182, 195, 201 seaworthiness, 9, 10, 15 securing cargo 13, 15 ship, 13 Shetland, 170, 172 shipbuilding, 6, 7, 66n, 75, 139 ship collision, 3, 5, 6, 10, 13, 15, 18, 20, 25, 27, 46–52, 120, 122, 125, 127, 128, 136, 139, 141, 144, 165, 166, 187–95, 197, 199, 200 ship council, 8, 10, 33–4, 35 ship’s court, 136, 144 shipwreck, 3, 5, 11, 13, 15, 18, 20, 25, 27–31, 41, 51–2, 108, 109, 120–2, 125, 126, 127, 136, 139, 140, 143, 144, 147, 159, 160, 165, 166, 167–78, 181n, 185, 186, 195, 196, 197, 199, 200 sickness (crew), 14, 15 Silesia, 100 Skagen, 58, 167 Skanör, 77 Sluys, 12, 112, 176 Sound (Øresund), 74, 135 statutory rights, 79; see also Aberdeen, Danzig, Kampen, Lübeck Staveren, 14n, 15, 16, 61n, 146, 149 Stettin, 163; see also Alt-Stettin Sticht, 58 Stirling, 54 Stockholm, 179, 185 Stralsund, 58, 80, 95, 147–8, 156, 157, 159, 163, 185 stýrimaðr, 9, 39 Swantopolk, duke of Pomerania, 70, 71, 72, 76, 100

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Sweden, 10 Swedish Sea Law (1667), 42 Sword Brothers, Order of the, 66–7 Tallinn, 67; see also Reval Tannenberg, 73, 74 Terschelling, 59 Teutonic Order, 67, 68, 69, 70, 72, 73, 74, 76, 78–9, 100, 101, 109, 138, 146, 151n, 200 Grand Master, 68, 73, 74, 138, 147, 151, 152, 153, 162, 164, 196 Livonian Master, 68 Texel, 59, 188 Thorn, 61, 74, 138n Thymmo, Helmich, 94 Tonsberg, 9 town community, 79; see also Aberdeen, Kampen, Lübeck, Reval town council, 79, 145, 148, 150, 199, 200; see also Aberdeen, Danzig, Kampen, Lübeck, Reval town court, 144, 145, 165, 167, 197; see also Danzig, Lübeck, Reval town law, 17n Trave, river, 61 Trondheim, 9 unloading see loading Utrecht, 132 bishop of, 58 diocese, 79 province, 58, 61 Veere, 58, 156 venture, joint or shipping, 8, 9, 10, 11, 30, 33, 34, 35n, 39, 43, 51, 134–5, 146 Vistula, river, 70, 180 Vlie, 15, 59, 120, 123, 125, 167n Vlieland, 59 voering, 8, 122, 154, 175 Vonnesse Van Damme, 12, 13, 14, 15, 16, 21, 23, 24, 29, 37, 39, 41, 90, 102, 103, 104, 105, 139–42, 156, 161, 163, 165, 174, 189, 196 wages, 8, 24, 85, 122, 139, 176 Wakenitz, river, 61 Waldemar II of Denmark, 62, 66, 97 Waterrecht, 16, 21, 23, 25, 37n, 41, 48n, 86, 94, 97, 102–7, 108, 109, 110, 134, 137–8, 139–42, 143, 162

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Index Bruges manuscript, 14n, 15 Copenhagen manuscript, 21n Danzig manuscript, 16, 91, 102, 103–5, 137–8 Dordrecht manuscript, 15n, 105 Enkhuizen manuscript, 14n, 42n Kampen manuscript, 16, 90–1, 105, 158, 189–91, 195 Staveren manuscript, 14n, 15, 16, 104, 105 Stockholm manuscript, 21n Welwod, William, 87 Wenzel II of Bohemia, 70 Wenzel III of Bohemia, 70 Wesenberg, 152 Westfalia, 135 Wisby, 2, 10, 19, 20, 22, 23, 25, 106, 147, 149, 196 Wisby Sea Law, 1, 21–3, 27, 29, 37n, 40, 46, 47, 86, 87, 88, 91, 97, 105–7

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223

Amsterdam edition (1551), 23n Copenhagen edition (1545), 23n Danzig edition (1538), 23n, 107 London edition (1536), 23n Lübeck edition (1537), 22, 23, 97, 107 Stockholm edition (1549), 23n Wisby Town Law, 10, 19, 20, 28, 30, 34, 35, 36, 40, 44, 121, 147, 176 Wismar, 95 Wollin, 162 wreck, law of, 3, 17, 28, 30, 86, 149, 153, 177 Zeeland, 23, 58, 61, 177, 201 Zierikzee, 61n Zuiderzee, 14, 15, 21, 59, 90, 120–6, 142, 143, 167, 191 Zutphen, 61 Zwolle, 92

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