Abstract / Description of output
This article deals with the liability of the shipmaster in early modern law in civil and common law, focusing on the approach of Italian and (to a lesser extent) also Iberian courts on the one hand, and on that of common law courts (mostly the King's Bench) on the other. The practice-oriented approach is deliberate: the article seeks to understand what the actual position of the carrier was, not how did learned jurists classify it. Once distinguished practice from dogmatic elaborations (especially for the civil law), this work then proceeds to compare the rules applicable in the two different legal systems. Common law courts imposed strict liability on the shipmaster, for it qualified the common carrier as a bailee. This discouraged complex discussions on causation. In theory, civil law courts applied the culpa levissima of the shipmaster (qua nauta) as elaborated by the jurists. As such, one would be tempted to conclude for the substantial affinity of the two systems: in both, the shipmaster should prove vis maior or answer for the loss. In practice, however, civil law courts relied more on a series of presumptions of causality. As the burden of proof depended on the specific kind of presumption (or on its absence), the abstract standard of care counted for little. Thus, the actual difference between civil and common law approaches was more on causation than the standard of care.
Original language | English |
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Article number | 12 |
Pages (from-to) | 1-47 |
Journal | Historia et Ius |
Volume | 12 |
Publication status | Published - 31 Dec 2017 |
Keywords / Materials (for Non-textual outputs)
- shipmaster
- fault and culpa levissima
- Law courts