Alexander Korthals Altes 62 1. The earliest law on ocean carriage which gained standing in the Low Countries is the Dutch adeptation of the famous Rolls of Oleron, which by now generally are dated between 1220 and 1286, most probably nearer to 1286. Already some thirty years later, early 14th century, a Flemish version of the Rolls became known as the Sea Laws of Damme: only a few decades afterwards, about 1330, followed by a less known Dutch version, which is generally named: Sea Law of Westkapelle (a small town on the isle of Walchers, Zeeland). The Westkappel law, we may conclude, was not taken from the French original, but from the Flemish version of Damme. Only two of the 26 Westkappel law sections concern the carriage of goods-contract. Both dealt with the material used by the carrier in performing the contract. The word ‘carrier’ was never used as a legal term— but the law in those days used to speak about the ‘schipper’ or master, a termwhich only made place for ‘carrier’ about six centuries later! Sect. XI obliged the master to show to the merchants upon arrival of the ship at destination, the material with which he was going to discharge the cargo. This material the merchants might approve or disprove, or they might reserve their rights. If the material was approved expressly, and damage occurs, the merchants will have to bear their own loss. If it was disproved, of if the material was not shown to the merchants, the master had to make good the entire damage. In case of reserved rights, the master’s obligation was limited. We must keep in mind that the merchants had to pay, over and above freight, separately for costs of discharge. This last item served to them to compensate their loss, if a defect in the material of discharge was cause of loss or damage to the cargo. If there remained an unfavourable balance after the dischargecosts had been compensated, this balance was borne in equal parts between merchants and master. Section XII is unfortunately a rather gobbled-up version and not clear at all. Its most probable meaning is that the merchants were obliged to pay for shoring and stowing material used on board of the ship, but that the master had the responsibility for proper execution of the stowing and shoring operation. Therefore, when a vessel did arrive safe but the cargo was damaged, there was prima facie evidence that the master was responsible for this damage. This unless he and three or four of his crew were able to swear that the damage was not caused by defective stowing or the cargo. If the ship’s people were not prepared to swear to that fact, section XII clearly stated, the master was liable for the damage. In my opinion, we may infer from this Section that if the master would swear to a storm as cause of the damage, he would likewise be discharged from liability.
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