(Article published in the Mar 14, 2007
issue of Manila Standard Today)
There could not have been a better place and a better time to write a review of “Philippine Admiralty and Maritime Law” by Attys. Eduardo F. Hernandez, Antonio R. Velicaria, and Adriano Montinola Hernandez, published by Central Print on Demand, 2006.
From the vantage of a window of Fred Elizalde’s resthouse, I see sails of blue and sails of white crisscrossing the waters a safe distance from where early-rising kids are wading in ankle-deep white and powdery sand. Yesterday morning, at the bow of the Heather Louise, on the hospitality of Tony Bradley and his wife Ari, I watched a leg of the 15th President’s Cup Regatta organized by Jud Echaus’ e-Standard Insurance and the Manila Yacht Club. Today, the majestic Heather Louise, named by its former owner Tony Bradley after his granddaughter, sits majestically farther out into the China Sea as if catching her breath from the excitement of the four days before.
The law of nature explains why a grandfather would name his lovely yacht after his granddaughter but opinions vary on why a vessel is considered female. An anonymous poet writes: “We always call a ship a ‘she’ and not without a reason. For she displays a well-shaped knee regardless of the season. She scorns the man whose heart is faint and doesn't show him pity. And like a girl she needs the paint to keep her looking pretty.” Less politically correct is retired Rear Admiral Francis D. Foley of the U.S. Navy who says that it’s “because men love them,” but hastens to add , “but this encompasses far more than just that… It is not so much her initial cost as it is her upkeep that makes you wonder where you founder…” and recommends “Just remember that ‘to furnish a ship requireth much trouble, but to furnish a woman the cost is double!’"
Regardless, what remains uncontested is that, as Eddie Hernandez recounts, sea-faring is, both in law and literature, referred to as an “adventure” because of the uncertainties of sea and weather. According to the English Marine Insurance Act of 1906, one has insurable interest if he is “interested in a marine adventure where he stands in any legal or equitable relation to the adventure…” More emphatically, Shakespeare’s Merchant of Venice, with its plot that turned on the uncertainty of the sea, has Shylock saying, “…ships are but boards, sailors but men: there be land-rats and water-rats, water-thieves and land-thieves, I mean pirates, and then there is the peril of waters, winds, and rocks…”
A lawyer’s adventure into maritime law, however, is made less perilous by Philippine Admiralty and Maritime Law. Following the schema of the Code of Commerce, the presentation of the legal material starts with the time a vessel is “born” into legal commerce, i.e. rules on registration, and ends with the time it “dies”, i.e. salvage, towage and wreck. In many chapters, one is certain to come across interesting, and sometimes, amusing resonance of ancient mind-sets and even sexist terminology.
For instance, Article 594 of the Code of Commerce calls the representative of the owners of a vessel as a “ship agent”. But a ship agent’s authorities and responsibilities are not identical to those of an agent under the Civil Code. In most instances, the ship agent, unlike a civil law agent, is jointly and severally liable with the shipowner. In admiralty, therefore, he is often referred to as the “husbanding agent” obviously in keeping with the thinking that a “she” needs a husband to take care of her. I am not sure whether by the same token, under land-bound language, a bride’s spouse is called a “groom” which is the same name given to one who takes care of a horse.
English in the 18th and 19th centuries use “bottom” interchangeably with “ship”. Thomas Jefferson’s 09 September 1801 letter to the U.S. Minister to France, Robert R. Livingston, initially spoke of the principle of “free ships, free goods,” but later on referred to it as “free bottoms, free goods.” This usage gives Foley the opportunity to push his argument likening ships to women, saying that “some have a cute fantail, others are heavy in the stern, but all have double-bottoms which demand attention.”
More serious, however, is the law’s use of “bottom.” In Article 719 of the Code of Commerce, it speaks of a “loan in bottomry” which is simply a mortgage on a ship conditioned upon its safe arrival in port.
“Lay days” as used in the law, in contrast to “husbanding agent” and “bottom,” did not have its current meaning in the colloquial language of the uncouth. In Article 656 of the Code of Commerce, the phrase simply means the period of time which a shipper, under a charter party, has at his disposal for loading or unloading the cargo on the vessel.
Beyond the foregoing trivia, however, is solid presentation of the intricacies of maritime law, interesting even to the layman.
Members of my generation still recall the mournful verses of “O Captain! My Captain” by Walt Whitman. For an understanding of why, on the ship reaching port, his daughter tells him, “Rise up—for you the flag is flung—for you the bugle trills; For you bouquets and ribbon’d wreaths—for you the shores a-crowding, For you they call, the swaying mass, their eager faces turning”, one needs only to read the commentary on Article 609 of the Code of Commerce and following concerning the authorities and duties of the master of the vessel. When the law was drafted, the ship was for long periods incommunicado with its owners; thus extraordinary powers were given to the captain (Article 610) to meet every conceivable eventuality, including the unusual authority to solemnize marriage in articulo mortis. These powers were thought necessary to enable him to discharge his duties, most of which are in the list of responsibilities in Art. 612 and observe the many disabilities in the following articles.
For those wanting to understand the maneuvers that preceded the more recent instances of sea collision in the country, the book’s discussion of Articles 826 to 839 of the Code of Commerce will prove very informative. Wide open as the seas would appear to be, collisions do happen. The authors’ analyses of why collisions occur, the interplay of each of the parties’ responsibilities, and the law’s allocation of liability based on the specific categories of (a) sole-to blame, (b) both-to-blame, (c) third party vessel-to-blame, and (d) none-to-blame, and limitation of liability, are authoritative and replete with illustrations from collisions in recent memory. The authors to put flesh and blood in their legal dessertation discussed, for instance, the regulatory actions on two collisions, one in 1980 and another in 1987, that both occurred in the Tablas Strait off Romblon where the 78,000 ton Japanese battle ship named Musasahi, with 984 sailors, was sank by U.S. aircrafts in the battle of Sibuya Sea in 1944.
My personal favorite is the section on Steering and Sailing Rules. There the authors discuss why a power driven vessel underway shall keep out of way of a sailing ship, a vessel engaged in fishing, or a vessel restricted in her ability to maneuver or not under command; why men two power driven vessels are meeting on reciprocal courses head on or nearly head on must alter course to starboard; why alteration of courses must be large enough to be readily apparent to the other ship; why vessels even with radar must have a look-out; why an overtaking vessel must keep out of the vessel being overtaken; and why a vessel maneuvering downstream has a right of way against a vessel going upstream.
These rules are really based on the science of the waves, swells, wind, current and all the forces of nature as they affect one’s life on board a ship.
and enforcers are surplussage. Nature
takes care of her own violators. And
those who dare ignore them better read the last chapter on Salvage,
Towage, and Wreck. Verbum sapienti satis.