Download PDF | Hassan Salih Khalilieh - Admiralty and Maritime Laws in the Mediterranean Sea (ca. 800-1050)_ The Kitaab Akriyat al-Sufun vis-a-vis the Nomos Rhodion Nautikos-Brill 2006.
400 Pages
PREFACE
It is a truism that the formulation of international law arises from the confrontation of alien cultures and their struggle to forge common principles with which to govern interactions between their peoples. In cases where one culture subjugates another and institutes its legal system in place of its predecessor’s, some degree of assimilation of the legal practices and customs of the subjugated culture inevitably occurs and establishes its contribution to the ongoing development of the jurisprudence of the region over which it ruled. Nowhere is this process more apparent than in the Mediterranean world, which has seen, throughout its history, domination by one civilization after another. Certain eras of that history have received little or no attention by legal historians, however, due to the paucity of documentation recording their legal practices.
The purpose of this study is to begin to fill in such a gap, specifically, the evolution of admiralty and maritime law in the Mediterranean region from the seventh through the first half of the eleventh century. Its scope, therefore, is more concentrated, both in the time and geographical region covered, than its companion volume, Islamic Marntime Law: An Introduction (Leiden: EJ. Brill, 1998), though there is unavoidably some overlap in their subject matters. This study introduces readers to the manner in which Muslim jurists viewed and resolved maritime disputes, in comparison to their Roman and Byzantine predecessors. Consequently, it addresses primarily commercial dealings.
On the eve of the Islamic military expansions of the seventh and eighth centuries, it was in the main the church, the state, wealthy merchants and private entrepreneurs who controlled shipping in the Mediterranean. Rules governing shipping were thus laid down by experienced local mariners, ecclesiastical institutions, and/or imperial lawyers; the last group compiled the Corpus Juris Civilis promulgated by Justinian I (527-565), and the Nomos Rhodion Nautikos (Rhodian Sea Law), codified between 600 and 800. The latter was recognized in Byzantine provinces on the eastern coasts of the Mediterranean, Aegean, Marmora, and Black seas from the eighth through the tenth centuries, during which time Islamic prominence was discernible in the Mediterranean and Aegean. In the reign of Leo the Wise (886-912), the Rhodian Sea Law appeared as an appendix in the first editions of the Basilika. This legal evidence from the Byzantine world enables scholars today to trace the evolution of maritime practices in the Byzantine Mediterranean from the sixth until the early eleventh centuries.
By contrast, with only scant and sporadic data derived from documentary evidence and late eighth century C.E. Islamic jurisprudence, to do likewise regarding the development of Islamic maritime laws in the Mediterranean has been difficult. As a result, it has generally been assumed that, with the exception of religious and personal status laws, Muslim legal authorities maintained the judicial system and practices of the former Byzantine territories as long as they did not contradict Islamic sacred law and Prophetic traditions. However, the discovery of the Islamic legal treatise Kitab Akriyat al-Sufun wal-Niza‘ bayna Ahliha (Treatise concerning the Leasing of Ships and the Claims between (Contracting) Parties), a copy of which was first discovered more than two decades ago, has shed considerable light on the subject. Attributed to the Maliki jurist, Muhammad Ibn ‘Umar (d. 310/923), it is at present considered the oldest and most comprehensive collection of Islamic maritime commercial law in effect between the eighth and tenth centuries. It contains nine chapters and six jurisprudential queries of Maliki jurists and was compiled sometime between the late ninth century and the second decade of the tenth. Its promulgation coincided with the Islamic imperum over the Mediterranean Sea and the capture of Sicily and Crete—two strategic islands and ports of call between East and West, the Muslim and Christian worlds. Its discovery clarifies unsolved issues pertaining to the evolution of maritime legal history in the Mediterranean Sea between 800 to 1050—a period in maritime legal history whose gaps contemporary scholars have not attempted to bridge. It further illuminates the extent to which Muslim jurists maintained and incorporated articles (codes) from the Rhodian Sea Law and the Digest into their own digests. Moreover, it sheds light on the precedents the fugah@ introduced into shipping laws, and their contribution to internationalizing sea law in the Mediterranean. Thus, the discovery of the Kitab Akriyat al-Sufun enables a comparison, the subject of this study, between it and the Nomos Rhodion Nautikos that clarifies the extent to which Muslim jurists maintained Byzantine maritime customs in former Byzantine territories and incorporated specific arti-cles of the Nomos Rhodion Nautikos and the Digest into their rulings. It thus makes it possible to begin to understand and evaluate the contribution of Islamic law to the evolution of Mediterranean jurisprudence.
This study consists of seven chapters and two appendices. Chapter one deals with the physical and legal significance of the ship, with an emphasis on the methods employed to compute the ship capacity and the importance of naming commercial vessels. Chapter two examines issues of ownership and possession of a vessel, the employment of crew—their duties, rights and payment conditions—and the legal status of passengers on board ship. Carriage of cargo by sea and forms of contracts, lability of the lessor, shipping fees and the factors affecting them, and the circumstances in which the contract may be breached are covered in chapter three. Jettison, general average, and contribution are treated in chapter four. Chapter five describes Byzantine and Islamic laws of collision followed by the rules governing the salvage of jetsam, which are surveyed in chapter six. The final chapter explains the legal differences between Byzantine and Islamic mercantile law and outlines the principles of the sea loan, chreokoinénia, and qirad.
This book owes its inception to Dumbarton Oaks Research Library, Washington D.C. (Harvard University), which granted me generous financial support and afforded me an opportunity to work under truly favorable conditions while a Fellow in Byzantine studies during 2000-2001. I am personally indebted to Prof. Alice-Mary ‘Talbot, Director of Byzantine Studies, to whom I owe many heartfelt thanks, as well as to the Senior Fellows Prof: George Dennis, Prof. John Duffy, Prof. Ioli Kalavrezou, Prof. Angeliki E. Laiou, Prof. JeanMichel Spieser, and Prof. Robert Taft. I want to acknowledge my deep gratitude to Prof. Abraham L. Udovitch for persuading me to investigate and develop this topic, to Prof. Mark R. Cohen and Prof. William Jordan, teachers and sincere friends, and to Mr. Krikor Chobinian, who devoted a great deal of his precious time to the search for bibliographical references. It is my pleasure to convey my warmest thanks to Prof. John H. Paryor, Prof: John F. Haldon, Prof. Vassilios Christides, and Prof. George L. Delgado whose invaluable observations and reservations on my manuscript have shaped and consolidated it. Further, I want to thank Prof. David Abulafia, Cambridge University, Prof. Majid al-Haj and Prof. Yossi Ben-Artzi, University of Haifa, for their support, as well as Prof. Robert Force and Prof. Martin Davies, Tulane University, for introducing me to the realm of modern admiralty and maritime laws. I wish to extend my gratitude to Mr. Ross Tharaud for editing the entire manuscript and making helpful comments, as well as the Editorial Staff at E,J. Brill: Mrs. Trudy Kamperveen, Mrs. Marcella Mulder and Mr. Juhan Deahl for their patience and efforts to get my manuscript to see the light of day.
Special appreciation goes to Dr. Leigh-Ann Bedal, Dr. Aicha Malek, Prof. Irfan Shahid, Mrs. Pris Haguebusch, and Dr. Latitia and Charlie Ufford, whose friendship and company will never be forgotten. My greatest debt is, as ever, to my mentor Prof. Michal Artzy whose constant spiritual encouragement and guidance have shaped my academic career. Last but certainly not least, my deepest appreciation is to my beloved wife Ranin and our children, Samuel and Mariam, for their patience and caring support during the writing of this book.
INTRODUCTION
Mediterranean Admiralty and Maritime Laws in Historical Perspective
The earliest maritime regulations in the Mediterranean world are thought to date back to 3000 B.C., the period during which the Old Kingdom of Egypt was established. Expanded commerce during the Early Bronze Age prompted the Pharaohs, whose authority extended beyond the coastal territories, to construct ports and shipyards to meet the demands of overseas trade. By the end of the first half of the third millennium, Egyptian ships frequented Levantine ports in the Mediterranean and the Aegean islands. Cedar and artifacts were shipped from Phoenicia and Syria, while Crete and Cyprus exported minerals. A few centuries later, merchants were transporting raw materials and finished objects such as precious stones, ivory, and rare woods from the Far and Near East to the Mediterranean area. In response to this burgeoning trade, shipwrights began building more sophisticated vessels that enabled seamen to expand their range and sail longer distances to more remote locations.’ Although documented evidence of early Egyptian maritime codes has not been discovered, it is reasonable to postulate that overseas trade could not have had developed without regulations governing river and sea navigation.’ While trade was flourishing in the Mediterranean, the Sumerians were instituting the oldest maritime codification in the ‘Tigro-Euphrates basin during the third and early second millennia B.C. These laws were subsequently adopted by Hammurabi,’ who incorporated them into his famous Code. His legal collection, considered by far the oldest documented code in legal history, consists of 282 sections, ten of which deal extensively with the rights and duties of shipwrights, ship owners and seamen, hiring and payment, the captain’s liability, and maritime collisions.*
While Egyptian prominence in maritime commerce in the Mediterranean world was evident until the end of the second millennium B.C. the Phoenicians became the world’s principal seafarers in the course of the first millennium.’ They were to become the lords of the Mediterranean, colonizing most of its islands and strategic coastal positions: they colonized Cyprus and Rhodes, which were followed by Spain and North Africa, where they established Carthage. About 600 B.C., the Phoenicians established trading colonies along the Moroccan coasts on the Atlantic.® Historical records report that Pharaoh Necho (610-594 B.C.) was known to have trusted his bestqualified Phoenician mariners to circumnavigate Africa.’
For over a millennium the Phoenicians were the world’s leading mariners and the undisputed rulers of the seas, contributing to naval design, the art of navigation, and the expansion of overseas trade. Through their extensive commerce and navigational skill, they acquired dominion over the sea, which they long retained.’ Their influence and role in the Mediterranean declined drastically, however, after Alexander the Great captured their stronghold Tyre in 332 B.C. and massacred most of the town’s residents.'° Although few legal records exist, historians tend to believe that the Phoenicians were among the earliest seafarers to constitute and codify a universal sea law in the Mediterranean, which most likely formed the basis of subsequent maritime laws."!
Early indications of deteriorating Phoenician naval power can be traced as early as 538 B.C. when Cyrus, the Persian king (559-530 B.C.), destroyed the Babylonian Empire and subjugated the Phoenicians, using the port cities of Tyre and Sidon to support his troops with a fleet. Persian political dominance in the eastern basin of the Mediterranean lasted six decades during which the Phoenician presence was still discernible. ‘This changed, however, on September 23, 480 B.C., when the Hellenic League under Athenian leadership defeated the Persian navy in the Strait of Salamis, permanently changing the political map and naval strategy in the Aegean Sea and subsequently the Mediterranean. As the newly dominant naval power in the Aegean, Athens’ provided a degree of freedom for the Greeks as a whole, eliminated piracy from the Aegean, and made itself the maritime policeman for all of Greece, largely with the acquiescence of the other Greek states. By the time Alexander the Great died in 323 B.C., the Aegean coast, Syria, Egypt, Persia, some western parts of India, and even territories in central Asia had fallen to the Greeks."
Due to declining Phoenician naval capability by the early third century B.C., weakening of the Ptolemaic power in the Aegean by the 250s, and the subsequent decay of the Macedonian fleet, Cretan, Aeolian, and Illyrian pirates infested maritime trunk routes. ‘The responsibility for trying to deal with these pirates gradually passed from the Ptolemies to the Rhodians, who had fought piracy since the early third century B.C. Rhodes succeeded Athens as the chief trading center in the Aegean owing to its naval power and location. In the third century, Rhodian commerce extended from Egypt to Crimea and from Mesopotamia to Italy, Sicily, and Carthage. Rhodian merchants settled in all the leading commercial centers and dealt with everything marketable, especially corn, slaves, luxury goods and select wines. This wide-ranging trade brought great prosperity to Rhodes, which was further enhanced by revenues from tolls, port dues, and dock charges. Although many skippers bound elsewhere had to pay a harbor tax of two percent [2%] of their cargo if they wished to stop in Rhodes, they were willing to do so because the Rhodian ports were ideal port of calls en route between Greece and Alexandria, one of the main centers of international trade and commerce.'? Rhodian maritime supremacy peaked between the establishment of the settlement of Apamea in 188 and the Battle of Pydna in 168 B.C. After the Third Macedonian War, Rhodes forfeited most of her mainland holdings following a ruinous economic setback after Delos was converted into a free port. This change seriously damaged Rhodes’ material prosperity, but proved advantageous to Italian merchants. Forming an alliance with Rome in 164, Rhodes became a Roman territory, although the island republic existed as a theoretically independent state for another two centuries.'
As Rome itself became the mistress of the Mediterranean, the Romans came to view the Mediterranean as a lake and began to call it mare nostrum, “our sea.”'® Roman fleets were permanently stationed at the most important commercial centers and maintained strategic positions in order to preserve peace and order along the coastal frontiers and secure the maritime trunk routes, particularly to assure the steady supply of grain to Rome.'’ To maintain dominion over the sea, the Romans forbade local inhabitants to build their own fleets, and gradually wiped out piracy Mediterranean waters.'* With piracy vanishing from the Mediterranean except for the far western region, the trade routes became safe for two centuries—from the rule of Octavius Augustus (31-14 B.C.) until that of Septimus Severus (193-211 C.E.). Pirates could not sail from or land on Roman soil, garrisoned by imperial squadrons and naval warriors who together fought against pirate ships.'? Clearly, absolute Roman dominion at sea resulted from territorial management and a military administrative system, with imperial troops and flotillas posted at measured distances along the shoreline serving as a preemptive weapon against piracy.
Although the Romans physically dominated the sea more than any other state in antiquity, the sea certainly was not their favorite element. The organization of the Roman navy showed a strong Hellenistic influence, as seen by the mass recruitment of shipwrights and seamen from the Hellenized East (Greece, Asia Minor, Syria and Egypt), which contributed fifty-two percent [52%] of the Misene fleet and twenty-eight percent [28%] of the Ravennate fleet.*° While Roman citizens rarely served in the fleet since they were reserved for the legions, men in the eastern Mediterranean considered such service an honor and were admired by family and friends.”! Statistical data in recent publications substantiate a hypothesis of Schomberg, who in 1786 concluded that “the Romans were never conspicuous as a maritime power, either in a military or a commercial sense,” and were ignorant of the true advantages to be derived from naval power.” Greek influence on Roman naval history is also discernible in the legal sphere, where certain articles of commercial law, especially those dealing with jettison of cargo and contribution, were incorporated into the Roman legal codices as long as they did not contradict Roman law.
When the Emperor Theodosius I died in 395, the Roman Empire was split between his two heirs into two distinctive political units. Arcadius reigned in the east from Constantinople, whereas Honorius governed the west from Milan. The territorial integrity and administrative system of the western provinces survived for a few decades, until in 476, the last Roman emperor in the west, Romulus Augustulus (31 Oct. 475 to 4 Sept. 476), was deposed by Odoacer, a Germanic military leader. ‘The barbarian tribes then divided the western provinces among themselves. The Vandals controlled a “sea empire” consisting of North Africa; their hold on the Balearics, Sardinia, and perhaps Corsica is disputed. ‘The Visigoths ruled Spain and southern France. The Ostrogoths controlled Italy and the Merovingian Franks ruled in France. It was only later, during the reign of Justinian I (527—565),™ that these kingdoms were subdued. He reestablished Romano-Byzantine authority in the Mediterranean territories, and imposed his power over the sea, which lasted until the Persian invasion of eastern Byzantium.**
Legislatwe Sources of Byzantine Sea-Laws
Shortly after Justinian I became sole emperor on August Ist, 527, he conceived his plan of a new collection of imperial constitutions. A comment attributed to him states that an emperor “must be not only glorified with arms, but also armed with laws, so that the time of war and the time of peace alike may be rightly guided; he must be the strong protector of law as well as the victor over vanquished enemies.”*” He made this statement when he realized that Roman law was in chaos and that a strong empire could not be built without organizing the legal system. To codify the Roman law, the Emperor commissioned Tribonian* in 529 to collect and publish Codex 'Theodosianus,”” Codex Gregorianus,”® and Codex Hermoge-
nianus.”? In November 534 Justinian issued a revised edition of the Codex, thus completing the codification consisting of three law books: the Digest (the Pandectus),*° the Codex,*' and the Institutes: notably, there is no reference at all to the Nomos Rhodion Nautikos (henceforth “N. N.”), either in the Codex or in the Institutes. During the remainder of his reign, Justinian made amendments and additions to the Corpus Juris Civilis. That new excerpt called the Noveles (literally “new laws’) was, unlike all previous legal works, written and promulgated in Greek. Justinian’s imperial edicts were first enforced throughout the eastern provinces of his empire, but never imposed on the Western Roman Empire prior to April 13th, 534, when he recaptured North Africa, Sardinia, Corsica, and the Balearics from the Vandals and restored Byzantine administration in these provinces.
Similarly, Justinian’s Code was not enforced in Italy until December 536, when he appointed Fidelis as his own praetorian praefectus (“vice emperor”) for Italy. Justinian’s Code was never introduced into southern Gaul, ruled by the Burgundians and Visigoths, which was a region Byzantium never conquered. Right after the Byzantine victory over Totila, the Ostrogothic king, at the battle of Busta Gallorum in 552,*° Byzantium became the mistress of the Mediterranean, Adriatic, Ionian, Aegean, and Black seas, as well as parts of the Red Sea. As a result, the Justinianic imperial laws were indisputably enforced in the overseas Byzantine territories until the first decade of the seventh century, when the Persians launched their attacks against the eastern provinces of Byzantium and captured Asia Minor, Levant, and Egypt between 610 and 628.** Negative effects of the Persian occupation were more discernible, however, in the political, rather than the socioeconomic, administrative, and judicial spheres.
With the exception of the lex Rhodia de jactu (Rhodian Law of Jettison), most maritime matters were almost certainly administered and adjudicated in accordance with the regulations instituted by classical Roman lawyers and provincial customary practices until the end of the sixth century and even later.” In March 741, the Ecloga (‘selection’ or ‘extract’) was published by Leo III (717-741) and Constantine V (741-775).*° By the ninth century Byzantine emperors published the Basilika,*” Synopsis Basilicorum,** and Tipoukeides.** As for the promulgation of the N. N., its precise year is still unknown. Ashburner, an authoritative scholar in this field, as well as most legal historians, place it some time between 600 and 800."° Another group of Byzantinists attribute it to the Isaurian dynasty (717-802), claiming that this compilation was adopted and instituted as an Imperial Law instead of the maritime formulation found in Justinian’s enactments.*! A third viewpoint determines that compiling and promulgating the treatise is an initiative of Photios,” going back to his first patriarchate from 858 to 867. A fourth associates it with Leo VI (886-912), who himself ordered its incorporation in the Basilika, or appointed a person of his entourage to do so. It appears in Book LU, which deals exclusively with maritime affairs as established by the N. N. Consequently some scholars tend to accept it as an original part of the Basilika.* The fifth opinion holds that the N. N. originated about the time of Stylianos Zaoutzes.** Still others assume that the rubric and prologue were drawn up in southern Italy.” Be that as it may, the promulgation and initiative of this compilation is still undecided though it is most likely to have been codified during the Iconoclasm period.
The N. N. consists of three parts. Part One is the Prologue, describing its ratification by the Roman emperors.*° Part Two provides a sort of table that lists the articles for Part Three and contains clauses of a general nature, elementary axioms and postulates. It consists of nineteen articles, seven of which [Articles 1-7] fix the shares (payments) of the ship’s master, steersman, carpenter, crew, and cook. Articles eight through fifteen deal in substance with the accommodation of merchants and ordinary passengers on board. Articles sixteen through nineteen deal with the method of reckoning a ship’s cargo capacity, maritime loan, chreokoinonia and contribution. Part Three is the longest, consisting of forty-seven statutes dealing with the manifold maritime regulations that provide legal solutions to problems that may emerge in various stages of a maritime venture.”” With a few exceptions, the statutes of Part Three are arranged in a logical order. Disciplinary laws, especially theft and murder, are treated in Articles one through eight; articles twelve through fifteen refer to deposit of commodities and personal effects with the captain; articles sixteen through eighteen deal with maritime loans; contracts between lessor and lessees are covered in articles eleven and nineteen through twenty-five; salvage is treated in articles forty-five through forty-seven; while Articles nine, ten, and twenty-six through fortyfour, the largest portion of Part Three of the N. N., relate to jettison and contribution. Overall, it is a comprehensive collection consisting of the basic admiralty law, which regulated carriage by sea, commercial maritime transactions, and personal behavior of seamen and passengers in the Christian Mediterranean for a few centurics.
The Mediterranean between the Domination of Byzantium and of Islam
For many centuries, the countries of the Mediterranean basin were an integral part of the Roman Empire. ‘The political map had undergone several changes by the first quarter of the seventh century, however, when the Persians captured the eastern territories of Byzantium. By the time Heraclius reversed Khusru II’s conquests and restored the status quo between Constantinople and Ctesiphon, a new religion and political entity had emerged in Mecca and flourished in Medina led by Muhammad Ibn ‘Abd Allah, a prophet and a statesman. By the time of his death in 632, prophet Muhammad asserted his authority over a vast region of the Arabian Peninsula, laying the foundations for a future Islamic Empire and leaving the Quran and his tradition to guide his Muslim followers, although he never established an elaborate administration or army. His successors fought against recalcitrant tribes, forced them into subjection, expanded the sphere of Muslim power beyond what it had been in Muhammad’s time, and even fought concurrently on two fronts, the Persian and Byzantine.“ The Islamic victories against the Sassanids at al-Oadisiyya (15 A.H./636 C.E.) and Heraclius at Yarmiik (Rajab 5th, 15 A.H./August 12th, 636 C.E.) changed the course of Near East history. By the 650s, the Sassanid Empire ceased to exist and Byzantium lost Syria, Palestine, Egypt, and the eastern territories of North Africa to the Muslims.‘
In spite of the subsequent Islamic military supremacy on land, Byzantium remained the dominant sea power in the Mediterranean. Except for an insignificant minority of Omani and Yemeni mariners, who joined ‘Amr Ibn al-‘As’s expedition against Egypt, the overwhelming majority of Muslim conquerors were unfamiliar with maritime warfare. With time, however, Mu‘awiya Ibn Abr Sufyan and Ibn al-‘As, the walis (governors) of Syria and Egypt, came to realize that their territories needed to look seaward rather than landward, noting how weakly they controlled their coastal frontiers, especially when Byzantium preserved its naval superiority offshore. Like their Roman predecessors,” Muslim commanders moved quickly to establish a defense system known in Arabic as ribd{s (fortresses) and mihrases (watchtowers) located within eye contact with each other, to protect the coast against possible Byzantine maritime expeditions.”! Later, taking advantage of experienced Greek and Coptic seamen, shipwrights, and former Byzantine maritime installations in Syria, Palestine, and Egypt, Mu‘awiya commanded the first Islamic maritime expedition against Cyprus in 28/648—9. In the subsequent year he launched a second attack on Arwad (Arados), an island off the Syrian coast, and burned the island’s city. Islamic fleets, the Syrian one in particular, intensified their activities against Byzantine targets in the eastern Mediterranean and Aegean and assaulted Crete, Cos, Cyprus, and Rhodes in 33/653-4, ultimately scoring their first naval victory against the Byzantines at Phoenix (Dhat al-Sawari) in 34/655. The Islamic naval triumph at Phoenix weakened the Byzantine maritime presence in the eastern Mediterranean. As a result, the Umayyads took advantage of the weakness of the Byzantine navy in the eastern basin of the Mediterranean by launching a series of naval raids and attacks against Constantinople and other strategic Aegean and Mediterranean islands until the fall of their caliphate in Damascus in 132/750. Despite the Islamic maritime emergence, the Mediterranean remained shared by Christians and Muslims, and neither party could view it as “mare nostrum.
In separate, spontaneous, and uncoordinated expeditions, Muslim sea powers attacked Sicily and Crete in 212/827. While the Aghlabid fleet, commanded by Asad Ibn al-Furat, an old jurist of Khurasani origin, raided Sicily, an Andalusian flotilla led by Aba Hafs ‘Umar Ibn ‘Isa Ibn Shu‘ayb al-Ballaitt landed in and conquered Crete.*! The assaults on Sicily and the conquest of Crete marked the beginning of a new era in Mediterranean maritime history. Within a few decades Islamic fleets captured the islands of Majorca, Minorca, Ibiza, Pantelleria, Malta, Sardinia, and Cyprus.” Their military expeditions extended to Christian coasts and their hinterlands. A series of more advanced and permanent military bases were established along the northern shores of the Mediterranean at Fraxinetum in Provence, Monte Garigliano near Naples, and around Bari in Apulia. Navigation in the Adriatic Sea was threatened by independent Islamic flotillas, while the Syrian and Cretan Arabs, who sacked and captured Thessalonica in 904 and invaded several other strategic islands, threatened Byzantine navigation in the Aegean.”®
Islamic ascendancy over vast expanses of Mediterranean shores, islands, and trunk routes could not have been accomplished, as Ibn Khaldin (732-808/ 1332-1406) states, without employing the maritime experience of the subject populations:
The royal and governmental authority of the Arabs became firmly established and powerful at that time. The non-Arab nations became servants of the Arabs and were under their control. Every craftsman offered them his best services. They employed seagoing nations for their maritime needs. Their own experience of the sea and of navigation grew, and they turned out to be very expert... .°”
Arabic and Aphrodito papyri from the seventh and eighth centuries authenticate Ibn Khaldiin’s observation and furnish us with much historical data about the establishment and organization of early Islamic fleets in the Mediterranean and Red seas.” A careful scrutiny of these official papyri reveals that the founders of early Islamic military fleets in the Mediterranean not only inherited and used former Byzantine maritime installations, but also adopted its naval administrative system, regulations and strategy.”
Islamic Admiralty and Maritime Laws and Practices
Islamic maritime achievements in the Mediterranean did not change the material culture of the occupied countries abruptly: instead there was cultural continuity in various aspects of life for centuries, despite gradual Arabization and Islamization processes. Non-Muslim subject populations retained their traditional legal institutions, including ecclesiastical and rabbinical tribunals,°° whereas the jurisdiction of the gadi extended to Muslims and civil cases involving Muslims and nonMuslims.*! Until the turn of the eighth century, Umayyad gadis gave judgments according to their own discretion (7@y/arbitrary or sound opinion of a judge), basing them on Qur’anic regulations, prophetic traditions, and customary practices that did not contradict Islamic principles.” In many respects, Byzantine commercial and shipping laws and practices presumably remained valid even after the formation of Islamic law schools (madhahib) during the second half of the eighth and first half of the ninth centuries. Remarkably, like the Romano-Byzantine legal system, Islamic judicial authorities never developed special admiralty courts. Rather the office of the gadi— occasionally advised and assisted by experts in maritime affairs and industry—adjudicated cases relating to maritime commerce and carriage by sea.
Additionally, like the sixth century Byzantine compilers of the Digest,” the founders of Islamic law schools and their fellow ‘ulama@ (jurists or doctors of law) subdivided their jurisprudential books into titles arranged and structured according to subject. For instance, the Muwatt@ of Malik Ibn Anas (97-179/715—-795), Mudawwana al-Kubra (lit. The Great or Comprehenswe Digest) compiled by Sahnin Ibn Sa‘id al-Tantikhi (160-240/776-854), and Kitab al-Umm of Muhammad Ibn Idris al-Shafit (150-204/767—820) all thought to be among the oldest Islamic jurisprudential references in the Mediterranean territories, are topically arranged according to the Romano-Byzantine legal classification.® With the exception of notarial formulae and a few jurisprudential works, none of the classical treatises on Islamic sacred law contain comprehensive chapters or subsections treating problems peculiar to maritime commerce, shipping, or naval industry: maritime problems are generally dispersed in chapters pertaining to hire, partnership, deposit, fixed punishments, almsgiving, pilgrimage, fasting, and prayer. An interesting exception, however, is the Kitab Akriyat al-Sufun wal-Niza‘ bayna Ahliha (Treatise concerning the Leasing of Ships and the Claims between (Contracting) Parties), (henceforth “A. S.”) which deals specifically with legal aspects of shipping and maritime commerce.
Written in the form of responsa, the core text of the treatise, as composed by the original author Muhammad Ibn ‘Umar al-Kinani al-Andalusi al-Iskandarani (d. 310/923), consists of only nine chapters. An appendix of six jurisprudential inquiries was apparently added later by the compiler Khalaf Ibn Abi Firas,®° or a later Malikt jurist. The first chapter deals with hiring seamen. Chapter Two treats the leasing of ships, forms of hire, and freight charges. Problems that may emerge between the contracting parties after concluding the charter agreement and that may prevent them from completing their transaction are discussed in the third chapter. The fourth chapter establishes the payment arrangements between the contracting parties if a technical malfunction in a ship should occur in the port of origin, en route, or after docking at the final destination. The fifth and longest chapter covers jettison, salvage, and contribution. Liability or otherwise of ship owners for what they carry is addressed in the sixth chapter. The author of the treatise devotes the seventh chapter to the procedures of loading and unloading goods. Partnership in a vessel is inadequately treated in the eighth chapter, and the ninth chapter refers to various sea-commenda and payment arrangements. Finally the appendix, whose legal inquiries date between the second half of the tenth and the first half of the eleventh century, concerns itself with the calculation of freight charges, overloading, ship owner’s liability for the transport of specific goods to their destination, collision, jettison and general average. The A. S. is thus not precisely a collection of maritime laws that treats ownership and possession of ships, methods of acquisition, rights of co-owners, master-crew relations, etc., but rather a maritime treatise that treats mercantile and shipping matters exclusively.
“On the basis of a great deal of circumstantial evidence,” Udovitch writes, “the text, as published by M. Taher, can be confidently dated to the mid 11th century.””? Our treatise in its present form, which certainly reflects the legal opinions of early Maliki jurists, could indeed have been promulgated earlier than the first half of the eleventh century. With the exception of three [3] jurists, whose legal opinions are quoted in the treatise’s appendix,” all twenty-seven [27] Maliki fugaha@ (jurists) referred to in the A. S. lived between the eighth and the first three decades of the tenth centuries.” Regardless of the exact date, the promulgation of this commercial treatise coin- cided with the Islamic zmperium over the Mediterranean and the capture of Sicily and Crete—two strategic islands and key ports of call between the East and the West, the Muslim and the Christian worlds. From that time, for three centuries, Muslim and dhimmit merchants expanded their overseas trade in the eastern and western Mediterranean consistent with Islamic naval supremacy and tolerant Muslim regimes. Despite the substantial legal data available in this unique treatise, it does not enable economic historians to formulate a global view of Christian-Islamic maritime commerce in the Mediterranean region. Nor does it cover the entire Islamic Mediterranean geographically: confined as it is to the major ports of Egypt, Ifriqiya, Sicily, and Andalusia, while the Moroccan, Syro-Palestinian, and Cretan ports are not mentioned at all.
Purposes and Methodology of the Study
Despite the lack of conclusive evidence dating the precise period when the N. N. was promulgated, this collection was unquestionably recognized in Byzantine provinces on the eastern coasts of the Mediterranean, Aegean, Marmora, and Black seas from the eighth through the tenth centuries, during which time Islamic prominence was discernible in the Mediterranean and Aegean. In the reign of Leo VI, the N. N. appeared as an appendix in the first editions of the Basilika.” The N. N. may have been incorporated into Book LI of the Basilika for either or both of the following reasons: First, the treatise in question may have been the most comprehensive, irreplaceable treatise for several centuries because it covered both civil and criminal procedures. Second, as some scholars argue, Byzantine maritime trade did not recover after the Islamic military expansions in the Mediterranean arena. Byzantine maritime law could not have evolved then, lacking the expansion of the overseas trade.”
So far, only two Mediterranean maritime treatises have come down to us from the period between the seventh and tenth centuries: the N. N. and A. S. Although innumerable Byzantinists have studied the evolution of the N. N., only one scholar has tentatively attempted to discuss the relationship with its Islamic counterpart at the time when more than half the maritime possessions in the Mediterranean were under Caliphate rule.” The discovery of the A. S. may also disclose unresolved issues in maritime legal history. It may clarify whether or not Muslim jurists maintained Byzantine maritime customs in the former Byzantine territories. If they did, what articles of the N. N. and the Digest were then incorporated or dismissed by Muslim jurists, and why? What did Muslim jurists introduce? Were there two distinct admiralty jurisdictions, Byzantine and Islamic, in the Mediterranean world?
The purpose of the present study is not to give a systematic account of all that has been written on the maritime law of Rhodes, nor give an exegesis of all the texts that have been brought to bear on it. Instead, its purpose is to compare the statutes recorded in the Digest and N. N., on the one hand, and then compare them with the responsa established in the A. S. and early Islamic jurisprudence from the Mediterranean, on the other.’° It deals in particular with the evolution of maritime law in the Mediterranean Sea between 800 and the 1050s, a period in maritime legal history whose gaps contemporary scholars have not attempted to bridge. It is my hope that the outcomes of the present study will allow scholars a further appreciation of the contribution Islamic jurisprudence made to the development and internationalization of the law of the sea prior to the emergence of the Italian commercial empires.
The study consists of seven chapters. Chapter one deals with the physical and legal significance of the ship, with emphasis on the methods employed to compute ship capacity and the importance of naming commercial vessels. Chapter two examines issues pertaining to the ownership and possession of a vessel, the employment of crew—their duties, rights, and payment—and the legal status of passengers. Carriage of cargo by sea, forms of contracts, liability of the lessor, shipping fees and the factors affecting them and the circumstances justifying breach of contract are covered in chapter three. Jettison, average and contribution are treated in chapter four. Chapter five describes Byzantine and Islamic laws of collision followed by the rules governing the salvage of jetsam, which are surveyed in chapter six. The final chapter concludes the study by explaining the legal differences between Byzantine maritime loan and chreokoindnia vis-a-vis Islamic commenda. An English translation of the A. S. based on Taher’s transcription and Ashburner’s English edition and translation of the Rhodian Sea Law are appended to our study. The aim here is to: (a) cover issues not raised in the study’s seven chapters; (b) enable lawyers and legal historians to examine further the relationship between early Byzantine and Islamic maritime laws with their medieval European sea laws. Since ‘Taher’s Arabic edition of the A. S. is too tentative and lacks legal analysis, the present English edition contains extensive biographical notes and comparable responsa from earlier and later Malikt and non-Maliki jurisprudential sources.
As for the methodological and discussion format, where the material overlaps in both bodies of law, they are all put together so that a reader may have to refer to footnotes to find out the sources. However, when differences in legal opinions emerge, or Muslim jurists issued unprecedented responsa and laws that are not found in Roman and Byzantine legal codices, the discussion entails separation. By adopting such a methodological format, it enables the readers to trace the similarities and differences between both distinct legal systems around the Middle Sea. In order to show how theoretical aspects of Islamic and Byzantine maritime laws were practiced, first-hand papyri and Geniza evidence, /isba manuals, historical accounts, and modern publications will be utilized as well.
An axiom ascribed to ‘Umar Ibn al-Khattab (13-23/634—644), the second caliph in Islam, states: “May God have mercy on a person who acknowledges his/her own limitation and pauses at it [rahima Allahu imrvin ‘arafa hadduhu fa-waqafa “ndahu|.” My linguistic limitations do not permit me to use primary Latin and Greek legal codices. As a result, my analysis of the Roman and Byzantine laws of the sea will depend primarily on modern monographs and translations of Ashburner,’’ Dareste,’® Freshfield,” Justice,®° and Letsios,®! with the hope that the linguistic deficiencies will not affect the actual thesis of this study.” Although Ashburner’s edition was published a century ago, Byzantinists and legal historians still consider it the most comprehensive analytical study ever written on the N. N., covering its relations to the Roman and Medieval European maritime laws and practices.’ Nevertheless, except for appendices A, D and E, which were published by Ashburner and Justice, Letsios relies on the forty-seven Rhodian codes integrated in the Basilika. Dareste and Freshfield, however, use a different manuscript that lacks of Articles I1I:32 and IIl:37 as well as appendices A, D and E.
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