Evans, Robert C.

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Maryland Journal of International LawVolume 7 | Issue 1 Article 14Maritime Transport: the Evolution of InternationalMarine Policy and Law by Edgar GoldRobert C. EvansFollow this and additional works at: http://digitalcommons.law.umaryland.edu/mjilPart of the Admiralty Commons, and the International Trade CommonsThis Book Review is brought to you for free and open access by DigitalCommons@UM Carey Law. It has been accepted for inclusion in MarylandJournal of International Law by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contactsmccarty@law.umaryland.edu.Recommended CitationRobert C. Evans, Maritime Transport: the Evolution of International Marine Policy and Law by Edgar Gold, 7 Md. J. Int'l L. 193 (1981).Available at: http://digitalcommons.law.umaryland.edu/mjil/vol7/iss1/14Book ReviewMaritime Transport: The Evolution of International Marine Policy and Law,by Edgar Gold. Lexington, Massachusetts: D.C. Heath and Company, 1981.425 pp.Professor Gold's Maritime Transport must have been a pleasure toresearch and write. The text, divided chronologically into seven chaptersspanning the dawn of history to the present, is adorned with over fifteenhundred footnotes. The subtitle, The Evolution of International Marine Policyand Law, only hints at the ambitiousness of its scope: Maritime Transport isan attempt at an ordered, unified history of the regulation of merchantshipping. In the end, however, the scholarship is too much weight for itsanalytical skeleton and the substantial effort does not seem worth it.In the introduction, Professor Gold writes at page xix that[M]arine transport has been discussed in an almost abstract manner, asif it did not really fit or belong within the public domain but needed tobe confined to the more "private" region of international commerce,which wag considered to be outside the scope of the law of the sea. Thisbook intends to show that this is an anomaly and that there is a clearlydiscernible thread linking maritime transport from the earliest timesup to the present debate on the ocean.The treatise is devoted to destroying the view of merchant shipping asone of purely private law, and to achieve this end the author emphasizes thepublic law aspect of merchant shipping. The ultimate purpose of Gold'shistory is to expose the ineffectiveness of private controls over maritimetransport in today's world.Emphasizing the public law aspect, Professor Gold details a paradigm ofremarkable complexity in the history of the regulation of merchant shipping.However, it is difficult to believe that ancient governments paid muchattention to the merchants who traded along their shores. The reason issimple: the seas are not easily patrolled, and laws governing the itinerant arethe hardest to enforce. Early merchants must have been left to prosper orperish according to their own fortunes, without the systematic aid (orhindrance) of national governments. Discontent with leaving their fortunesto fate, the early merchants developed a customary law that secured theirprofits by guaranteeing some predictability in the marketplace.(193)THE INTERNATIONAL TRADE LAW JOURNALFor Professor Gold, a highly speculative pattern of regulation in theancient world foreshadowed the development of the modern law of the sea:[F]irst, the aspiring maritime state with an embryonic fleet of merchantships . . . .would seek to espouse [the principal of freedom of the seas]and attempt to give it the force of international law because it would beadvantageous to do so.However, in the second stage, "freedom of trade" would become aliability. By then, the state would have developed its economy, which,for Mediterranean littoral states, was always a maritime one, having asits main aim the protection of its commerce and the regulation ofcompetition ...During the next stage, the aspiring maritime state had developed intoa maritime power and controlled both the sea and the trade by means ofits ownership of large merchant and naval fleets and, of course, by beingthe locus of the major markets. At this time the freedom of the sea andmaritime commerce would once again be espoused by a state which nowhad nothing to fear from it and which, on the contrary, could use itsinfluence to advantage.Maritime Transport at 9-10.Undoubtedly, ancient nations had ambivalent policies with respect toport usage by aliens or carriage of government-owned commodities. MaritimeTransport assimilates such domestic experiments to regular responses topredictable economic cycles. Gold forgets that world trade did not alwayswax and wane with the fate of empires, but stood in a large measure outsideof the will of kings. Merchant shipping has always been a practical responseto a real need. Experiments in regulation, whether to aggrandize the ego of adespot or to accommodate the prevailing economic theory, have always beenthe veneer that sometimes shields or fosters trade, and sometimes weakens itand rots it. Shipping may have long been the subject of governmentregulation, but history, as recounted by Gold in Maritime Transport, isreplete with examples that demonstrate the strength of the shipping industryand show how the customary law that has evolved has prevailed through thecenturies despite government regulation (and rarely because of it).Professor Gold fashioned the early chapters of Maritime Transport tolead the reader to expect that a better future for shipping law lies with thepublic sector, reincarnated in a more organized, more absolute authority.Professor Gold chronicles maritime law from the time of the Phoenicians tothe emergence of the modern European law of the sea. The thread thatemerges, rather than emphasizing the success of public regulation, is a themeof alienation of government from shipping interests - a cleavage betweenMARITIME TRANSPORTthe practices of merchants and the dictates of political empires. MaritimeTransport is replete with indictments of both early and modern domesticgovernments on this score. The clear villains of national shipping policies arethe domestic shipping lobbies - the voice of the private sector in publicgovernment.Professor Gold identifies the great successes of maritime law, which werethe results of voluntary international adaptation of workable, comprehensivenational legislation such as the Consolato Del Mare of the fourteenth century,the Ordonnance de la Marine (1806) and the British Merchant Shipping Actof 1894. The polarized, hyperbolic results of the various internationalconventions emerge in agonized detail. In contrast to the customary law ofthe sea which saw large scale, voluntary compliance, Professor Gold reportsthat the eleven Comite Maritime International Conferences between 1897and 1913 "discussed a great variety of maritime law subjects and achievedconsensus and codification in [only] two areas." Maritime Transport at 152.While Professor Gold's account of these international conventions leavesno doubt of their tedium and expense, Gold himself joins the ranks of theirperpetuators. Certainly much good can be derived from discussions amongantagonistic interests, even if their meetings fail to produce a charter, a codeor a treaty. Professor Gold seems to retain either the hope for a conventionthat will end all conventions or the belief that host nations have limitlesstreasuries from which to fund conventions. However, where will he find thenecessary reservoir of patience by private interests to endure the endlessmeetings? Nations and individuals are more eager to harness the economicbenefits of the oceans for personal or national enrichment, than to seeklong-term commitment to binding laws.Professor Gold also fails to recognize the divisive effect of the openinternational convention. In the bright light of world publicity, mutualdesires to achieve common ends encounter myriad complexities. Domesticpolitical pressures, as well as pressures from regional interest groups, oftenstymie needed give-and-take in the negotiating process. Repeatedly, interna-tional conventions have borne no more fruit than confirmation of several setsof opposing slogans - each one imperfectly stating the interests of itssupporters.Maritime Transport is, in a sense, more a work about the failure ofbureaucracies, than a praise of them. However, Gold's solution to bureau-cracy is a mirror-image of the problem: the creation of another internationalbureaucracy to assume the task that the nations have botched. Gold'sindictment of the substance of international maritime law fails to recognizethat the underlying problem is the structural failure of national bureaucra-cies to achieve the political compromises necessary to promote the develop-ment of maritime law.THE INTERNATIONAL TRADE LAW JOURNALPolitical leaders seeking change in the law of the sea would be wise tolook beyond the skeleton of international regulation of maritime transportthat Gold treats as a sacred cow. Opportunities for bilateral agreements on acase-by-case basis are always within reach. These bilateral agreements canserve as. a spawning ground for equality among trading partners and for themutual benefits of trade. The lesson of Maritime Transport is that we havenot strayed so far from the days of the wooden-ship traders who, for their ownbenefit and protection, created their own laws and loaned them to the nationsthey served. Commercial adventure and bilateral political initiative arecapable of forging new and responsive international laws. Professor Gold'swell-detailed frustration with the current international legal bureaucracy isincomplete as long as he hesitates at the brink of a structural solution.Robert C. Evans** Associate in the Admiralty Section of Phelps, Dunbar, Marks, Claverie &Sims, New Orleans, La. A.B., Columbia College in the City of New York, 1975. J.D.,University of Maryland School of Law, 1980. Member of the State Bars of Marylandand Louisiana.

Maritime Transport: the Evolution of International Marine Policy and Law by Edgar Gold

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