6 Conclusion
The sarcastic title of this chapter is, of course, a reference to the phrase “restraint of
princes,” which continues to pop up in many corners of maritime law to this day. The
phrase is of obscure origin, perhaps originally from civil law sources, but it is
definitely hundreds of years old.
85 On 14 October 1690, Lord Commissioner
Hutchins noted in England that: “Where a policy of insurance is against restraint
of princes, that extends not where the insured shall navigate against the law of
countries, or where there shall be a seizure for not paying of custom or the like”.
86
The phrase continues to appear in the Hague or Hague-Visby Rules governing bills
of lading,
87 and also in standard form charterparties,
88 even in some of the most
recently-issued editions,
89 including NYPE 2015.
90 In marine insurance, the original
home of the phrase, the latest version of the U.K.’s Institute Cargo Clauses (A) has
dropped the “princes” and refers simply to “restraint,”
91 as does the latest version of
the American Institute Cargo Clauses.
92 Nevertheless, those princes trying busily to
restrain maritime commerce remain a familiar part of the language of maritime law to
this day.
This is, of course, absurd. There are not many princes left in the twenty-first
century, and those who continue to bear the title have no power (and, presumably, no
inclination) to restrain anything that a commercial ship might want to do. The
colorful old phrase has been replaced in the Rotterdam Rules by the more prosaic,
but much more accurately descriptive, equivalent: “interference by or impediments
created by governments, public authorities, rulers or people”.
93 No doubt, some will
mourn the passing of the restraining princes and their resonance of the long history
of maritime law, but it is hard to dispute that the admittedly more drab phrase in the
Rotterdam Rules describes the intended effect of the exception much more clearly
and precisely.
This is a small point, admittedly, but it is emblematic of the larger point made in
this chapter. Maritime law is often wedded to the past, often the distant past, refusing
to move with the times. Sometimes, that tendency is largely harmless, as in the case
of the curious fondness for such archaic phrases as “restraint of princes” and “tight,
85 See Note, “Restraint of Princes”, 32 Harv. L. Rev. 839, 839 n.1 (1919), citing Balthazard
Emerigon, Treatise on Insurances (1783, translated from the French by Samuel Meredith,
Butterworth, 1850), p. 420, which in turn refers to the Ordonnance de la Marine, promulgated
by Louis XIV in 1681.
86 Case 158 – Note per Lord Commissioner Hutchins (1690) 2 Vern. 176, 23 E.R. 716.
87 Hague/Hague-Visby Rules, Art. 4, r. 2(g).
88 For example, NYPE 1946, cl. 16.
89 For example, Shelltime 4, cl. 27(a). Shelltime 4 was issued in 1984 and revised in 2003.
90 NYPE 2015, cl. 21.
91 Institute Cargo Clauses (A)(2009), cl. 6.2.
92 American Institute Cargo Clauses 2004, cl. 6(A)(1).
93 Rotterdam Rules 2009, Art. 17(3)(d).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
171
The sarcastic title of this chapter is, of course, a reference to the phrase “restraint of
princes,” which continues to pop up in many corners of maritime law to this day. The
phrase is of obscure origin, perhaps originally from civil law sources, but it is
definitely hundreds of years old.
85 On 14 October 1690, Lord Commissioner
Hutchins noted in England that: “Where a policy of insurance is against restraint
of princes, that extends not where the insured shall navigate against the law of
countries, or where there shall be a seizure for not paying of custom or the like”.
86
The phrase continues to appear in the Hague or Hague-Visby Rules governing bills
of lading,
87 and also in standard form charterparties,
88 even in some of the most
recently-issued editions,
89 including NYPE 2015.
90 In marine insurance, the original
home of the phrase, the latest version of the U.K.’s Institute Cargo Clauses (A) has
dropped the “princes” and refers simply to “restraint,”
91 as does the latest version of
the American Institute Cargo Clauses.
92 Nevertheless, those princes trying busily to
restrain maritime commerce remain a familiar part of the language of maritime law to
this day.
This is, of course, absurd. There are not many princes left in the twenty-first
century, and those who continue to bear the title have no power (and, presumably, no
inclination) to restrain anything that a commercial ship might want to do. The
colorful old phrase has been replaced in the Rotterdam Rules by the more prosaic,
but much more accurately descriptive, equivalent: “interference by or impediments
created by governments, public authorities, rulers or people”.
93 No doubt, some will
mourn the passing of the restraining princes and their resonance of the long history
of maritime law, but it is hard to dispute that the admittedly more drab phrase in the
Rotterdam Rules describes the intended effect of the exception much more clearly
and precisely.
This is a small point, admittedly, but it is emblematic of the larger point made in
this chapter. Maritime law is often wedded to the past, often the distant past, refusing
to move with the times. Sometimes, that tendency is largely harmless, as in the case
of the curious fondness for such archaic phrases as “restraint of princes” and “tight,
85 See Note, “Restraint of Princes”, 32 Harv. L. Rev. 839, 839 n.1 (1919), citing Balthazard
Emerigon, Treatise on Insurances (1783, translated from the French by Samuel Meredith,
Butterworth, 1850), p. 420, which in turn refers to the Ordonnance de la Marine, promulgated
by Louis XIV in 1681.
86 Case 158 – Note per Lord Commissioner Hutchins (1690) 2 Vern. 176, 23 E.R. 716.
87 Hague/Hague-Visby Rules, Art. 4, r. 2(g).
88 For example, NYPE 1946, cl. 16.
89 For example, Shelltime 4, cl. 27(a). Shelltime 4 was issued in 1984 and revised in 2003.
90 NYPE 2015, cl. 21.
91 Institute Cargo Clauses (A)(2009), cl. 6.2.
92 American Institute Cargo Clauses 2004, cl. 6(A)(1).
93 Rotterdam Rules 2009, Art. 17(3)(d).
When Was the Last Time You Were Restrained by a Prince? Conservatism. . .
171