The Sea and Civilization: A Maritime History of the World

by Paine, Lincoln

  Byzantine maritime law was codified in the so-called Rhodian Sea Law, a name that harks back to the heyday of Rhodes as a maritime power in the third century BCE, although the law as it survives was probably codified between 600 and 800 ce. The underlying principles were shared by Mediterranean maritime merchants throughout this period, and many of the law’s tenets are reflected in the Muslim Treatise Concerning the Leasing of Ships and the Claims Between (Contracting) Parties, a collection of responsa on the subject of maritime law compiled by an Andalusian jurist in the tenth century. Broadly speaking both the Rhodian Sea Law and the Treatise treat five aspects of shipping: ships’ owners, the crew, and merchants; the carriage of goods; the laws of jettison and general average; the salvage of lost ships and cargoes; and commercial law and contracts.

  The few substantive differences between Byzantine and Islamic maritime law chiefly concern how and when people were paid for their services and questions of liability. Whereas Byzantine crews tended to work for a share of the profits of a voyage (a practice that continued in the heyday of the Italian maritime powers), Muslim sailors were paid in accordance with Quranic principles: “Whoever hires an employee, let him do the hire at a fixed wage and for a defined duration.” There were benefits and drawbacks to both systems. Sharing in profits gave sailors the incentive to ensure a voyage’s success, but offered no security in the event of failure. Fixed wages made life more predictable for the crew (and whoever was responsible for tallying the costs of the voyage), but wage earners had no vested interest in the voyage’s outcome, and owners no reason to pay more than absolutely necessary. As the changing nomenclature suggests, owners everywhere gradually prevailed, and sailors went from being part of the ship’s “company” who shared in the financial and physical welfare of the ship, to being poorly salaried “crew” exploited chiefly for their physical strength and routinely cheated.

  A contract to transport goods via ship generally specified the vessel, including its name, rig, officers, and route. All traditions stressed the importance of checking a ship’s seaworthiness, and load lines were marked on ships’ hulls to ensure they were not overloaded—a practice abandoned by the early modern period and not revived until the late nineteenth century. Major innovations in Muslim law were linking freight charges to the distance covered and factoring in the difference in prices obtained if goods had to be sold at a port other than that stipulated in the contract. By the eleventh century, Jewish, Christian, and Muslim merchants employed essentially three types of commercial contracts—the sea loan, the societas maris (association of the sea), and the commenda (something given in commendam, in trust)—which spread risk, created larger pools of potential investors while guaranteeing legal remedies for dishonest actions, and enabled people to profit from trade without resorting to usury. Islam, Judaism, and Christianity all proscribed lending money at interest to coreligionists, although there were no prohibitions on charging interest to people of other faiths.

  In Byzantine law, a lender extended a sea loan to a merchant who contracted to repay it at a fixed rate of interest. The lender could not recoup his loan if the ship failed to reach its destination, but his profit was not diminished if the borrower had to sell his cargo at a loss. Although the interest charged was payable only upon the successful conclusion of a voyage and not if the capital was lost, in 1236 the pope condemned sea loans on the grounds that such interest was a form of usury. The agreement known as a societas maris was a partnership of “capital, labor or anything else: skill, knowledge or connections perhaps” in which the investors, whether of money, work, or goods, shared equally in the profits or loss of the venture. The societas maris was regarded as a consensual agreement rather than one in which an investment was handed over to one of the parties. Similar to this was the isqa of Jewish law, which envisioned a single lender of capital whose investment was “a semi loan and a semi trust.” The loan carried no interest and had to be repaid regardless of the outcome of the voyage. If it was a success, the trust had to be repaid, together with any profits it generated, while if it failed, the trust was lost.

  Unlike either the societas maris or isqa was the Muslim qirad, which combined aspects of the partnership with a hiring of labor, but without the taint of usury. In the qirad, money was not lent but transferred from a “sedentary” investor to a trading associate, or “labor-investor.” Any profit realized through manipulation of the investment was shared, at predetermined rates, between the sedentary investor and the trader. Losses to capital were borne solely by the sedentary investor, the assumption being that if he failed to profit financially, the labor-investor had likewise lost his investment of time and labor. The qirad is widely believed to have been the precursor to the quintessential medieval maritime contract, the commenda.

  Modern historians have described the commenda as an “innovation of the highest importance [that] contributed greatly to the faster growth of maritime trade as compared to the slower progress of capitalistic forms in land trade” and “the lynch-pin of the fantastic success of the Commercial Revolution in the Mediterranean from the eleventh to the thirteenth centuries.” Broadly speaking there were two types. In a unilateral commenda, one or more lenders loaned money to a traveling merchant who used the capital to trade. If the voyage was profitable, lender and merchant would share in the profits at a predetermined rate, usually three-quarters for the lender and one-quarter for the merchant. Bilateral commendae involved capital from both a lender and the traveling merchant, in which case the profits were shared evenly. Under a bilateral contract, both parties were liable in proportion to the amount of their respective contributions, but under a unilateral contract the borrower was not liable for any losses due to shipwreck, piracy, or capture by a hostile power. In the words of the Statutes of Marseille of 1253, if “the ship … is broken up, wrecked, or captured on that voyage, from then on the said [borrower] or partner who went on the ship … or his heirs, may in no wise have action taken against him.” The similarities of the commenda to the qirad are striking and Jewish merchants referred to commendae as “partnerships according to Muslim law.” Although the mechanisms involved in the transmission of the principles of the qirad from Muslim to Christian merchants cannot be divined, the fact that the qirad exercised greater influence on the development of commercial contracts in Europe than did agreements previously devised by Christian merchants demonstrates the intensity of cross-cultural contact among Mediterranean men of affairs.

  Apart from contracts, one of the most complex issues to be considered in maritime trade was jettison, the deliberate throwing overboard of goods to save a ship, normal practice in the face of storms, when a ship was leaking, or when fleeing a pursuer. In principle, the decision to jettison was a deliberative one involving the captain, crew, and merchants whose cargo was involved. If time allowed, the parties negotiated the compensation due to those whose goods were to be sacrificed. In an emergency, however, a captain could order cargo jettisoned without consultation. If this decision was challenged, the captain and crew had to present evidence to justify their actions. The Rhodian Sea Law addresses jettison in cursory fashion, noting simply that everyone in the ship shared in the risk so that all should lose in proportion to the value of their cargo: “if goods are thrown overboard in order to lighten the ship, what is sacrificed for the common benefit should be made good by a common contribution.” The responsa in the Treatise Concerning the Leasing of Ships go into greater detail, establishing the shares payable by those whose goods were not jettisoned and the basis for determining the value of goods that were, what is now known as general average loss, the principles of which remain essentially unchanged in modern maritime law.b

  The Muslim approach gradually spread. According to the Libro del Consulado del Mar (Book of the Consulate of the Sea), a digest of maritime law promulgated at Barcelona in the 1300s but the roots of which are much older, the captain had to explain the need for jettisoning cargo and the risks of not doing so. But the larger issue inv
olved general average: whether losses were to be assessed by weight or value, whether values were determined based on prices at the place of purchase or the intended place of sale, whether the ship and its gear were included, whether nonmerchant passengers and the crew were liable because their lives were saved, and how slaves should be considered. The Rhodian Sea Law fixed the value of personal slaves at three minas, but “if any one is being carried for sale, he is to be valued at two minas.” Most Muslim jurists deplored the concept of human jettison, but some ruled that slaves could be jettisoned provided that they could swim and were within reach of land, while others considered it permissible to sacrifice non-Muslims to save Muslims. Taking a more equitable view, a twelfth-century jurist maintained that if necessary people could be “chosen by lot [and] indiscriminately subjected to being thrown overboard, regardless of their social status and allegiance, whether they were males or females, slaves or free men, Muslims or dhimmis [protected minorities].” In general, however, the issue of human jettison was of secondary concern because the lives of free people had no monetary value and maritime codes were preoccupied with commercial rather than humanitarian concerns.

  The codification and refinement of principles of commercial maritime law rationalized the way people conducted business and helped create an enlarged multicultural trading network whose benefits, restrictions, and penalties could be easily understood by all participants. By the time these were committed to writing, the Byzantine Empire and Dar al-Islam in the Mediterranean were at or past their mercantile prime. Yet they were not being challenged by anything so obvious as an empire. Instead, small city-states on the Italian Peninsula were enriching themselves at the expense of their former Byzantine overlords and of their Muslim antagonists and competitors. To a degree not seen since the time of Carthage, the citizens of Venice, Genoa, Amalfi, and Pisa actively embraced maritime trade and forged relationships between merchants and the state that made commerce a civic virtue and led to developments as unexpected as they were unprecedented. These would change the nature and conduct of trade not only in the Mediterranean, but also among the newly minted commercial enclaves of northern Europe.

  a Maghreb, which means “west” or “setting sun,” can refer to the lands from western Libya to Morocco, or specifically to Morocco. Ifriqiya comprised western Libya, Tunisia, and eastern Algeria.

  b “Average”—in Latin, averia—comes from the Arabic awar, meaning “damage to goods.”

  Chapter 9

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  Northern Europe Through the Viking Age

  As late as the twelfth century, much of northern Europe was a backward and remote corner of Eurasia, far removed from the high civilizations of the Mediterranean and Near East. The earliest historical records—foreign and subject to bias, ignorance, and guesswork—do not flatter, but the nautical dimension of its disparate cultures is evident in the sketch of northern Europe teased from the archaeological record and writers from Herodotus on. To a degree found nowhere else, the people of the European subcontinent are bound equally to salt-and freshwater; but the process of integrating fully the great river networks that today facilitate transcontinental exchange with the coastal and deep-sea shipping lanes of the Baltic, North, Mediterranean, and Black Seas, and the Arctic and Atlantic Oceans, only began in the Middle Ages. While northern Europeans absorbed the sophisticated influences of pagan and Christian Rome, seafaring developed from within, most notably among Angles and Saxons in the third to eighth centuries, Frisians from the fifth to ninth centuries, and Scandinavian Vikings in the ninth to eleventh centuries. Considered by volume, value, or organizational sophistication, this maritime activity was on a far smaller scale than in the Mediterranean or Monsoon Seas. The emergence of ports of trade such as Dorestad in the Netherlands, Birka in Sweden, and Novgorod in Russia reflects the ambition of local sovereigns to capture the benefits of trade in the form of revenues, or exemption from revenues; Frankish kings routinely curried favor by relieving their agents and religious houses from paying duties. The indifferent defense against foreign—especially Viking—attack shows that sea trade was not yet the priority it would become.

  The Vikings’ infamy is often overstated, for they were no more violent than their contemporaries. In their favor, they helped integrate the extremes of western and eastern Europe and to draw Scandinavia into the mainstream of European political development. Although the first raiders sprang from loosely organized pagan tribes far removed from the influence of imperial or monarchical rule, they were quick to take advantage of the opportunities afforded by adopting Christianity and centralized government. Yet once they had absorbed the religion and principles of governance of their southern neighbors, the people of Scandinavia proved too few and remote from the chief centers of economic and political activity to play more than a supporting role in the development of northern Europe and the British Isles after the eleventh century.

  Ninth-Century Travelers in Northern Europe

  Toward the end of the ninth century, England’s Alfred the Great commissioned a vernacular translation of the History Against the Pagans, a work by Paulus Orosius written to debunk claims that Christianity was responsible for the Roman Empire’s decline. Written in the fifth century, Orosius’s work remained a standard text for a thousand years, until well after the cultural and political integration of northern and Mediterranean Europe was under way. To compensate for its omissions regarding the north, the Old English translation includes additional passages about northern Europe and narratives of three voyages in Scandinavia and the Baltic. The more audacious narrator is Ohthere, a Norse merchant-landowner and whaler from Hålogaland, the narrow coastal plain above the Arctic Circle. Motivated by a basic curiosity “to investigate how far the land extended in a northerly direction, or whether anyone lived north of the waste [or wilderness],” Ohthere decided to sail beyond the North Cape, the limit of the whalers’ hunting grounds about three days north of Tromsø. From the North Cape, he sailed east and then south for nine days to the mouth of the Varzuga River on the south side of the Kola Peninsula. Here “the land was all settled” by people whose language was similar to that of “Finnas,” whose language he knew from traders who crossed the mountains into Hålogaland. Ohthere’s daring paid off, for the Kola Peninsula was rich in walrus, which were valued for their tusks—some of which he presented to Alfred—and for their hide, which was “very good for ship-ropes,” especially standing rigging and halyards.

  Ohthere’s second passage was from Hålogaland south to Kaupang (literally, “trade bay”), an emporium on the shore of the Oslofjord, and from there to Hedeby, an important commercial center on the southern Jutland peninsula. It is unclear how long it took Ohthere to sail along the “North Way” (that is, Norway) from Hålogaland, but he notes that if one stopped at night it would take about a month. The five-day passage from Kaupang south took him along the Swedish coast, through the Danish archipelago, and twenty-two miles up the Schleifjord to Hedeby. This well-protected port was established by Denmark’s King Godfred, who in an effort to deny Charlemagne access to the Baltic trade had relocated the merchant community of Reric, about 120 miles to the southeast, at the turn of the ninth century.

  Hedeby also figures in the account of Ohthere’s contemporary, Wulfstan, who was probably an Anglo-Saxon with strong ties to the Scandinavian communities in England. According to his account in the History Against the Pagans, Wulfstan sailed four hundred miles in seven days, from Hedeby east past Wendland (Germany and Poland) to the mouth of the Vistula River. His actual destination was the port of Truso near the junction of the Elblag and Vistula, just before the latter reaches the Baltic. Wulfstan offers no details about his ship or route and the only commodities he mentions are fish and honey, the latter being the principal sweetener in the centuries before sugar was introduced to Europe.

  Taken together, Ohthere’s and Wulfstan’s spare accounts introduce many places of more than passing interest to their contemporaries. In addition to the four major
regions referred to—northern Norway, the southern Scandinavian peninsula, Jutland, and the Vistula estuary—both men knew something of the British Isles. Ohthere also refers to Ireland and the Orkney and Shetland Islands. Wulfstan demonstrates his familiarity with the route to the port of Birka on Lake Mälaren west of modern Stockholm. This was reached by sailing south of the principal islands of the Danish archipelago and Skåne (in southern Sweden and then under Danish rule), by the island of Bornholm (“the land of the Burgendas,” who migrated south and gave their name to Burgundy), before turning north past the islands of Øland and Gotland en route to the myriad islands of the Stockholm archipelago, 500 miles from Hedeby and about 350 miles north of Truso.

  There is no indication of the routes that Ohthere or Wulfstan took to reach Alfred’s court, but three suggest themselves. Ohthere may have sailed from Norway to the Viking kingdom of York (Jorvik), the capital of which was a thriving mercantile and manufacturing center with a population of about ten to fifteen thousand people, enormous for a northern European city of the time. From there it was an easy coastal passage to the Thames estuary. Wulfstan likely followed the twelve-kilometer portage from Hedeby to a landing on the Eider River, which flows to the North Sea. From there he could have hugged the Frisian coast to the mouth of the Rhine before crossing to Britain, the route favored by Frisian middlemen in the trade between the Baltic and North Sea. Alternatively, he might have sailed direct from the mouth of the Eider to York.