source : https://www.trans-lex.org/
Klaus Peter Berger
https://www.trans-lex.org/the-lex-mercatoria-and-the-translex-principles_ID8
For all the above reasons, the Rôles have a unique place in legal history. They form the basis of modern maritime law in both the French civil law tradition and the English common law tradition
EXTRAITS
The oldest and best-known sea-laws in north western Europe
11. The Rôles d’Oléron (« Jugements de la mer« , also known as « Loix de Layron« , « La Ley Olyroun » or « coutumes de la mer« ) are the oldest and best-known sea-laws in north western Europe. They were promulgated around 1160 on the island of Oléron near La Rochelle, just north of Bordeaux in the Bay of Biscay. Their origin is not free from doubt. Some argue that they were first proclaimed, perhaps in the Castrum of Le Château-d’Oléron, by Eleanore of Aquitaine, queen of France (1137-1152) and England (1154-1189), duchess of Aquitaine (1137-1204) and one of the most influential women of the High Middle Ages. Eleanore had just returned from the second crusade in which she had accompanied her first husband Louis VII. During her journey, she got in touch with maritime law principles. However, the English Fasciculus de superioritate maris of 1339 contains a document stating that it was Eleanore’s son, King Richard I (« the Lionheart »), who formulated the Rôles (« ley Olyroun« ) while on passage from the Holy Land. Alternatively, he may also have simply approved the work of the Queen Regent after his return. According to another, more convincing theory, the creation of the Rôles was based on the different merchants’ and mariners’ guilds of northwestern Europe in the thirteenth century, the text of the Rôles being either first formulated by one trading community and then adopted by the others, or collectively created by the different communities in unison. This view is supported by the fact that the Rôles were formulated in simple and plain language. This view can be reconciled with the first in that Eleanore was not involved in the actual drafting of the Rôles, but was merely responsible for their formal proclamation.
A considerable influence on the Black Book of Admiralty
12 Initially purely oral, the Rôles were written between 1160 and 1286. They were initially published in French. They derive their name from the fact that their first version was written on parchment which was rolled and put in a case so that the Rôles could be taken on a ship journey. Their first version had 24 articles. That number rose to 47 in a sixteenth century version as the law developed. The oldest extant copy dates from the early fourteenth century and is contained in the Liber Horn (1311), a collection of charters, statutes and customs which was compiled by Andrew Horn, one of the most important English lawyers of his time, a fishmonger and Chamberlain of the City of London. The version in the Liber Horn is probably a copy, directly or indirectly, of an Anglo-Norman original. The English King Henry VIII published the Rôles in 1351 as « The judgment of the sea, of Masters, of Mariners, and Merchants, and all their doings », which is but a literal translation of their earlier French title. That version had a considerable influence on the Black Book of Admiralty published in the fourteenth century (below No. 16).
13. The Rôles were formulated for the sea transport of wine from Brittany and Normandy to England, Scotland and Flanders. Because the Il d’Oléron was English when the Rôles were first proclaimed, there was intensive wine trade with that country in those days. They did not contain general principles of maritime law, but were mainly concerned with specific practical issues related to the security of the ship, the legal relations between crew and master and the status and security of the cargo during the see transport. They were based on a long succession of cases decided or to be decided by the local Admiralty Court on the island of Oléron. That Court was associated with the Atlantic Seaman’s Guild, the most powerful seamens’ guild of the Atlantic of those days. All but one of the paragraphs of the Rôles were drafted in the form of a ruling on a case, always ending with the wording « C‘est le jugement (en ce cas)« . For the case of jettison, the Rôles provided that « the Roman law must be applied », probably a reference to the Lex Rhodia. Essentially, the Rôles were most probably a product of the francophone maritime communities of the thirteenth century and the maritime practice manifested in their articles made them a dynamic document of customary law.
14. Translations of the Rôles into Flemish, Dutch (« Judgements of Damme« , « Vonnesse van Damme » or « Lois des Westcapelle » or « Waterrecht van Damme« ) and Scots (« Of lawis of scyppis« , « Of laws of ships ») spread through Western Europe. The Dutch collection of customary law of the sea of the Zuidersee towns (« Ordinancie ende insettinghe die de coopluden ende schippers holden mit malcander », « Ordinance and statute which the merchants and skippers observe among themselves ») dates from the mid-fourteenth century. In one of those towns, Kampen, two collection of town laws, the Boeck van Rechte and the Gulden Boeck, both contained various maritime regulations influenced by the Rôles. The Shiprecht of the same town, which was likely written between 1425 and 1450, contained a collection of maritime regulations which are clearly recognizable as the Vonnesse. Both the Vonnesse and the Ordinancie were transmitted as a unit in manuscripts centuries after their creation, obviously in an effort to create a collection of sea laws valid in different parts of Western Europe.
15. The binding authority of the Rôles from the Mediterranean to the Baltic sea was repeatedly confirmed in other texts related to maritime trade. An ordinance by the French King Charles V (Charles « the Wise ») of April 1364 gave Castilian merchants the privilige to have their maritime claims judged according to the Rôles (« coutume de la mer et les droiz de Layron« ). Likewise, the English Inquisition of Queensborough, which contained 70 verdicts and articles rendered between 1375 and 1422 by a commission of 18 expert seamen appointed by King Edward III for examining the maritime law of those days, acknowlegded the force of the Rôles (with additions for English legal purposes) as well as the need for speedy proceedings (« Est de faire sommaire et plein proces selon loy marine et ancienne coustume de la mer »).
Written in old French
16. The English Black Book of the Admiralty (« Liber Niger Admiralitatis« ) of ca. 1360 was a manual of instruction drafted by the registrar of the Admiralty Court for the English Lord High Admiral. The first, more ancient part of the Book was written in old French and contained admiralty laws, decisions, ordinances, instructions, and acts of the King and the Court of Admiralty. The second part contains a Latin treatise on procedure which bears some resemblance to a treatise (« Tractatus Judiciorum« ) produced by Bartolus de Sasso-Ferrato around 1355. The Book also contains a collection of documents, including an English translation of the Rôles. This confirms that they were the rule of decision of those days for maritime matters. Even the pirate codes (« Articles ») concluded between some well-known pirates and their crews, like the « Obligation » (1675) of the Irish pirate George Cusack, acknowledged the binding force of the Rôles (« Lawes of Pleron »). There thus seemed to exist a strange contrast between the « lawlessness of live at sea in the Middle Ages » and the acknowledgement of the binding nature of the Rôles by some of those who were responsible for that situation. However, medieval sailors of all types were generally content to obey the law of their own medium – maritime law. It was mainly for that reason that the plaintiffs or their lawyers in piracy cases of those days often argued that the claim for restitution of goods stolen by pirates should be settled, as a matter of fact, according to the Law Merchant, the laws of the sea or the Rôles.
17. For all the above reasons, the Rôles have a unique place in legal history. They form the basis of modern maritime law in both the French civil law tradition and the English common law tradition. Because of this special nature and their transnational authority, they have been cited as precedent numerous times by English and US Courts, including the US Supreme Court (below Nos. 21, 22) and, accordingly, can be considered as part of US maritime law as defined by the US Constitution.
TRACES DE FRANCE 