Islamic Maritime Law

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Some Notes from the History of Islamic Maritime Law

Ismail Yurdakok [email protected]

INTRODUCTION The Maritime Law was codificated very late in Western World. It started with Netherland in 1839 CE; and the other European countries completed the studies of codification in the last part of the 19th century. The majority of the Islamic countries have got thousands of kilometers seashores. Some of the Islamic countries are on the peninsulas of the world and some of them are on the islands. The Maritime Law is very complicated to understand for reader. In spite of this, we provided a lot of examples that made this study easy to comprehend. The subjects that will be studied in this paper include the sailor companions of the Prophet Muhammad, the problem of the pollution of seas, and the Chamber of Maritime of Istanbul about two hundred years ago, and the studies of Islamic jurists about maritime law a thousand years ago. THE CONCEPT OF SEA IN QURAN There are a lot of verses in Quran about sea. Examples like: The Prophet Moses’s voyage with Khidr on the sea (1), the position of the Prophet Jonah in the abdomen of a (big) fish (2), and building of Noah's ark of the Prophet Noah. (3) Quran as the most important source of Islamic Law has got the word of “sea” 42 times. We see the word of ‘safena’ (ship) 4 times, the word of ‘fulk’ (also ship) 23 times and ‘hut’ and ‘heytan’ (fish) 5 times in Quran. (4) One of the verses about sea, shipment and fishing is: “It is He (Allah/ God) who subjected to you the sea, so that you may eat of its fresh meat, and bring up from ornaments which you wear. (You take out pearl from the deep of the sea). And you may see the ships cleaving through it. (All these, He (Allah) has created) so that you may seek His bounty and render thanks (looking for your sustenance from sea by sea-trading or fishing)” (Quran, Chapter of Nahl, verse: 14) A seaport-town Jeddah was the wharf of Mecca and another seaport-town Yanbu was the wharf of Medina, in the time of the Prophet Muhammad (on the Red-Sea). The first immigration of oppressed Muslims of Mecca had occurred to Abyssinia. They had gone on a ship to Abyssinia. Another verse in Quran: “And two seas are not equal; this, fresh, sweet, good to drink, this (other) bitter, salt. And from them both you eat fresh meat and derive the ornament (pearl etc.) that you wear. ” (Fater; v, 12) NAVIGATION IN THE TIME OF THE PROPHET The third war of the Prophet Muhammad was the battle of Usayra. Usayra was a name of a place in valley of Yanbu. Yanbu was far from Medina (the capital city)

180 miles and was the port of Medina. The Companions of the Prophet used to go and come to Abyssinia and they used to know sea and sea-trade. The Prophet's wife Aisha says: “In the time of jaheliyya (ignorance/paganist period) the Ansar (the people of Medina) used to visit the idols of Esaf and Naela that these idols were on the coast of Red-sea and then they used to go Mecca for Hajj (pilgrimage)” (5) A sailor companion had come to the Prophet Muhammad and said: “O Envoy of Allah (Prophet). We sail on the sea. But we have not got much water. If we use this water for ritual ablution, this time we (will) become thirsty. Do we use the water of sea for ritual ablution?” The Prophet said that “its water (the water of sea) is clean and its corps are halal (eatable)”. (If it is fresh and not rotten, putrid, and spoiled.)(6) Another companion of the Prophet - most probably he was also a sailor- asked the Prophet that: “O Prophet, what do you say about the fats (tallow-suet) of corps of animals, the fats a carrion of an animal (especially domesticated animals like carrion of a sheep or carrion of cow). The ships are polished with this tallow, the skins are greased and the men are illuminated (burning it in the lanterns).” But the Prophet said that: “(the fats of carrion of animal) do not sell it; do not use it, it is forbidden (in the religion)” (7) A companion of the Prophet, Jaber mentions a fish of anbar (probably it was a whale.) They had gone to the shore of Red-Sea to control this region that the Prophet had sent them. The commander was Abu Ubayda and they saw the whale on the sands of the beach. It was a big one. Thirteen companions had sit in the hollow of the eye of the whale. The soldiers (companions) said that “Let's eat from this meat of fish”. But the commander Abu Ubayda said “It is carrion.” But the soldiers insisted and they said that “this is not rotten, is not spoiled or putrid.” This time Abu Ubayda said “You may eat it.” They ate it. And some parts of the whale were salted, had been done brained for pickling. After returning to Medina they gave a part of this brined whale to the Prophet, and the Prophet had eaten it. (8) MARITIME-LINES Abu Musa and his fifty-three friends wanted to become Muslims and wanted to see the Prophet Muhammad. When they were going on a ship on the Red-Sea from Yemen to Yanbu (the port of Medina) a stormy-sea caught them. The storm threw them to Abyssinia coasts. The passengers of the ship landed there. And they met the son of uncle of the Prophet, Jafar (b.Abu Taleb). Jafar and family had come to Abyssinia as an immigrants from Macce years ago.(9) This example shows that the maritime-lines were being used for passengers and transportation of loads: a jew had come to Muhammad and asked him that: “What is the gift of that men (or women)they will enter the Paradise at first ?” The Prophet said “a part of liver of a fish.”(10) This example also shows that the concepts of sea and sea-product and shipping that the people of Medina were acquaintance (familiar) of those concepts. THE DESCRIPTION OF MARITIME-LAW AND ITS HISTORICAL EVOLUTION The maritime law is all of the rules of sea-law that it arranges (it puts in order) connections among persons about traffic of merchant ships (11). In Islamic law we see examples of maritime law especially in the parts of Islamic law books in the “Kitab-al Ejaarah” (The book of renting). Another branch is near close to this matter is “the public law of sea” “the public law of maritime”. It arranges the relations of that happen between person and state or states. Another branch is “international maritime law”. This law's subjects are independence of high seas, borders of territorial waters; blockade the ships and loads of enemy (in the wartime). (12)

Another matter connected with the last two branches of laws is pollution of seas. This matter is the most important for Islamic countries that most of the majority of these countries have got the sea shores of thousands kilometers. For example, who will bear the risk of damage in the important positions, for example: going (transition) in the channels, straits that threat thousands of people that they live on the both sides of channels, and liability of ship-owners. There are a lot of problems in the modern maritime-law like these problems. On the other hand, 60% of the shipping of the world is petroleum transportation.80 % of the tankers of the world, pour their ballasts to the tanks that they were prepared for this work in the refineries, but 20 % of the tankers pour their ballasts to the seas and these tankers cause the pollution of the seas. Thousands of tons crude petroleum are poured to the seas by the great tankers of petroleum in the ship-wrecks. Seven years had lasted the tanker had ran on the rocks on the sea-shores of England in March 1967. The Englishmen and French brought lawsuits of indemnity against the ship-owner of the tanker, but the shipowner only six million dollars had paid, the damages had reached hundreds of million dollars.(13) In March 1974, a tanker ran aground (stranded) in the strait of Magellan of South America and eighty-thousand tons of petroleum were poured to the sea. This wreck knocked a heavy-blow to the fishing in Pacific especially in Peru and trillions of micro organisms died. In these matters, the Islamic jurists had said only "the open seas are dar-ul harb.” (Dar-ul Harb means these lands are the lands of enemies or these lands are not the lands of Muslims.) That is the open seas are not the property of Islamic countries and they had said that it is impossible to disagree in the great rivers like Tigris (Dejla) and Euphrates (Furat). It is obvious and normally that our old jurists could not think the pollution of the seas that had occurred after the industry revolution. But today, the tragedy of tankers influences negative to the biological living creature to the fish and shellfish especially minute particles on the fish very harmful for human body. And bilges of well were poured to the seas and oozing leakages of petroleum and liquid fluids and for filling the tankers or filling the ships, in this procedures the pollution of petroleum is ten tons per ship in a year. Islam does not permit these pollutions, the Prophet Muhammad prohibited to urinate in the calm water, fourteen centuries ago.(14) Seventeen states that they have sea-shore of the Mediterranean-Sea, they signed the Agreement of Barcelona and another agreement the United Nations the Conference of Maritime Law was signed in 1982. And the companies of tankers (of petroleum) established funds to pay the fines (of penalties) that courts judge after ship-wrecks. All of the companies are the members of the fund of Tovalop and 80 % of them are the members of the Crystal Fund. According to those voluntarily agreements of the companies, the limit of indemnity, according to the tonnage of gross of the ship (tanker) is 160 dollars per-ton or at least for every tanker is 16.8 million dollars. In Islamic Law, some of the rules may be admitted the principle of reciprocal of the international law (also in these indemnities.) Some western jurists say“fine (money as a penalty) and penalty of prison and cancelling of certificate of (captain or shipowner) may be thought in maritime law.” But my opinion is against to penalty of prison. The penalty of financial crimes does not have to be the penalty of prison. In Islamic law there is a rule that: “Al Jaza-u min Jens-il Amal” that is “The punishment is (has to be) from the kind of crime. The punishment of economic crimes or financial crimes has to be economic or financial. Another branch of maritime law is maritime criminal law. The rules of this law, punishes some crimes that these crimes take their characteristics from maritime law. They are examples as opponent acts to the rules of to hoist the flag, against acts to rules of secures the confidence of life and property, the

rules that punish the personnel of ships who acted against the rules of ship... In the Islamic law books, we see this sentence, in the part of Qasama of criminal law: “If “a killed man” is found in a ship, his Qasama and blood money are on the personnel of the ship and passengers of the ship. It is equal in responsibility, the owner of the ship and others. (15) THE HISTORY The disagreements in this field were being solved according the rules of fiqh (Islamic law). There are two fatwa (opinion of Islamic jurists on a legal matter) of Abdurrahiym Affandi. In these fatwa: it was possible to practice of the rules of average. They had referred the fatwa and practicing of the rules of Islamic law it was admitted that the rigger is compulsory to indemnity for the loads of thrown overboard. There was a Chamber of Maritime in Istanbul that its members were merchants (probably riggers or importers). If a disagreement occurred between the rigger and personnel of the ship, these kinds of disagreements were being solved in this chamber. Some merchants used to been appointed as an arbitrator. For some disagreements, one arbitrator or, in some cases, two or three even four arbitrators used to solve the problems. If the problem was not solved, this time the problem used to been transferred to Islamic Shareyah Court. To apply of riggers to the committee of arbitrators before (the applying of) Islamic Court is a characteristic of Islamic law. In Islamic law books there is a “Fasl al Tahkeym (Part of Arbitration)” We see in these parts: “the problems of family” or “professional (job/work/industrial) problems”. The both sides’ claimant and defendant may apply to the committee of arbitrators. This institution is a factor that reduces/decreases the number of lawsuits in the Islamic courts. In the time of Sultan Abdul-Aziz (1861-76), the Court of Maritime was established in Istanbul. In the other cities of seashore the Commercial Courts were interested in the lawsuits of maritime-trading. Kanunnama-i Tejarat-i Bahreyya (The Law of Maritime-Trading) is a translation of the Second Book of Commercial Code of France. Except about passengers that this section is absent in the Code of France, this part had been written from the Code of Netherland and of Germany. After that the Study of Majallah has got a little knowledge about maritime-trading. “The Code of Maritime” after the collapse of caliphate of Ottoman Empire, in the period of Turkish Republic, is the translation of the Fourth Book of German Commercial Code. If we notice the above historical process, before the establishing of laicism in Turkish Republic, laic codes (from western countries) had entered to the Ottoman Caliphate Empire. THE JURIDICAL POSITION OF THE SHIP There are some disputes about the juridical position of the “ship.” Current Turkish civil law deems “ship” as a movable property but in execution in mortgage and in performing the usufruct admits as a real estate. The majority of Islamic jurists’ imagines the ship as a movable property and they compare ship to animals (in transportation like horse or mule) that these animals carry loads. Imam Malik (leader scholar of Malikis that one of the biggest Sunni Islamic law schools) admits “ship” as areal estate. If we admit ship as a real estate this time will be another matter that if it is possible on the ship “the right of shuf ’ah (preemption) or not. Some scholars say that there is shuf ’ah in every thing. They show as a proof that the sentence of the Prophet Muhammad in Termezey (hadith book) that Muhammad said: “Shuf ’ah is in every thing” Some scholars say exception animal from movable properties that they say it is possible shuf ’ah in animals. Also the scholars of the Zahereyyah (school) say: “shuf ’ah is possible in a lot of properties include animals.”

THE RIGGER AND THE CAPTAIN One of the main concepts of the Maritime Law is “rigger”. Rigger corresponds to the merchant of land-trading. To be a rigger, it is necessary to be the owner of a ship. Individual or corporate bodies, companies even the states may be rigger. Islamic Maritime Law also says similar conditions for rigger. In Turkish Trading Law there is another concept that it is “the purveyor of ship management”. This is a person (or a corporate body) which he uses this ship for maritime trading. The ship owner who let out on hires this ship and earns money with this renting, he is (now) not a rigger, he is a capitalist that gains money from his capital (ship). We also see this concept (the purveyor of ship management) in Islamic law. In Islamic renting (law) books, we find: a renter of a vessel may make an agreement with the owner of the vessel in detail, this both may write item by item and an item in the form of “..who wants to use (this vessel) he may use..” may been put, in result of this item, another one (or company) may use this vessel. The most important person after rigger is captain. In voyage, the captain is the only dominant person. It is necessary in a ship, to protect the public order and to perform some public affairs while the ship is on the high seas that the ship is (now) out of the influence of the state, an authority has to do these affairs that this authority is captain. Captain can use force to the persons on the ship, he can confine the disobedient persons to an appropriate-place or remove from ship, look for their clothing or their luggage. The captain also may keep the personnel luggage of the ship, he may not give these things to them, he may command to catch the personnel that they escaped from the ship. Although these authorities for captain can not been found in the Islamic maritime law but Islamic law also has to give this authority to the captain because the voyages on ships (even on the oceans) are full of dangerous in winter and summer. (There is an 26th article in Majallah that “Special (individual) damages are preferred for prevent the general damages”) To act or behave “as a provident and cautious captain” for every captain is compulsory in all affairs. He is responsible that happened damages for his faulty acts. In the past, the captain used to carry loads in his own account. There was not any rigger out of captain. But in the historical evolution the captain became as an employee (from his historical post of employer). From this direction, the captain is an “Aceyr-i khas” (private (for his employer) laborer) even in a sentence of Prophet Muhammad “...al Khazen-ul Ameyn...” (Responsible-protective with a completely authority) In the above matters, the western law and Islamic law tell the similar statements. In addition to, in western law, there is an authority for captain that he can sell the ship in some extraordinary cases. In the positions that, the continuing of the voyage is impossible and in very hard cases that it is not found any solution except selling of the ship and the ship is far from the rigger’s agent or company. We do not find this authority of the captain in Islamic maritime law. May Aceyr-i khas (private laborer) sell the properties of his employer without his permission. But if we think on this problem (in Islamic law): if the rigger gives an authority or procuration (proxy) that the captain can sell the ship in some extraordinary cases, it is not a problem according to Islamic law. But if there is not any authority or proxy and the captain can not communicate with the rigger with telephone (fax, e mail etc.,) or the rigger (agent) avoids talking the captain (a reason may be much debt of the company or bankruptcy), in that case, what does the captain do? And, the personnel of the ship or the passengers may be in difficult conditions. (May be) The personnel of the ship are far from their own countries and have not got any money for returning their country and the rigger is not interested in the problems of the ship, if he is careless (and it is possible,

today, to ask the position of the rigger from the embassy of the country of the rigger) according to Islamic law: the authority of the selling of the ship has to be given to the captain. ARTICLES ABOUT MARITIME TRANSPORT IN MAJALLAH In the western countries laws about maritime had been codificated very late. The maritime laws of Sweden, Denmark and Norway in 1881-93, Finland in 1873, Japan in 1899 after 1911, Germany in 1861 after 1897, Netherland in 1838, Italy in 1882, Spain 1885, Portugal 1888. There was a Islamic law study in the Ottoman Empire at the same period. This study was named Majallah-i Ahkam-i Adleyyah (Book of Judicial Judgments). But there is a superficial study about maritime law in Majallah. The reason of this, there was a Kanunnama-i Tejarat-al Bahreyya (Maritime-Trading Code that was a translation of the second book of Code of Trading of France) was in effect. The first statement about maritime-trading is the 209th article of Majallah. It is written in this article: “It is non-valid to sell a thing that its delivering is not possible” and as an example we see in this article: “it is nonvalid to sell a row-boat that it was sunk into the sea and it is impossible to take out this row-boat” In the 220th article of Majallah: “A row-boat is full of fire-wood, it is possible the wholesale of this load” We have to point out –again- in classical times, the majority of Islamic jurists compare ship to the animals of carry loads. We can estimate the some articles of Majallah from this stand-point. In this form; according to 291st article, it is said that: “The ship brought the load, where does this ship unload its load? Is it to the port of the city or the wharf of the company? (If the company has got a private wharf). In this case “the tradition (common usage) of this city is considered”. Another matter on maritime transportation is the time of taking of buyer the load from the seller. In the 293rd article: “If property is ruined/perished before the buyer takes it, indemnity is for the seller”. The seller is responsible for the load to deliver it to the ship. But if the purchaser does not pay the money, the seller makes (writes) a consignment-note with captain after delivered the load to the ship. The seller takes a copy of this consignment-note from captain and gives it to the bank. This bank opens ‘bank credit’ (letter of credit) for the buyer (receiver) and the bank pays the money of the load to the seller. In this process, there is not any reason to a disagreement between two sides. The seller delivers the load to the ship according to buyer’s demands and takes the money (from bank). Is there any objection in this process according to Islamic law? Only the bank (factor) is seen as an instrument of interest system. But bank is only a mediator/agent in this process. In the 388th article (of Majallah), it is mentioned about the building of ship. “Anyone agree on a price with a carpenter to build a ship. The length, wideness and its other specialties are said (or written) in the agreement. This is a compact of istisna (ordered/custom-made).” This judgment is the same in the western law. In the 422nd article: “a boat-man of wharf” is mentioned. “The boat-man of a wharf is an “Acer-i mushtarak” (an independent worker) that works for everyone (like tailor or dyer of cottons) but a man rent a boat and boat-man to go a place, this time the boat-man is acer-i khas (private laborer)” In the 437th article: “With taatey renting (renting without any conversation between both sides) is possible, if the fare is obvious for everyone, for example for packet-boat or the boat of wharf (that its fare is known everybody). The passenger gives this fare, if the fare is not fixed this time the passenger gives ajr-i mesl” (the fare that is paid generally in the sector) that the other owners of the packet-boats or boats take from their passengers.) (Shopping in supermarkets (without conversation) is an example for ‘taatey’) There is a “completely-charter”. It is a kind of renting of a ship for example

to transportation of ore or coal. In this kind of transportation, the kind of load has to been said (453rd article), the shipper shipping agent proves right to take the fare after transportation (469th article), in the renting of a ship –in a fixed time- if this (fixed) time is over but the voyage is going on, in this position, the time of the renting goes on to the shore. RENT A YACHT “If a man rents a yacht or cutter boat or a ship from a company but the owner of the vessel says: “the renter will not go out from this distance and ‘a position of out of repair’ occurs or a broken, the renter pays this damage” (comparing to the transportation of horse or cart) (article 547) In these renting, it is necessary to say to point out the name of city like Dahran, not the name of region likes Arab Gulf (Art., 542). If the vessel becomes out of order during the voyage, the renter cancels the renting and pays an ajr-i mesl to the owner of the vessel (Art., 539). A man rents a packet-boat for passengers, it is forbidden for him to load this vessel load, but if he loads and damage occurs in the vessel, the renter pays this damage (Art., 550). In these renting, Is there any damage by reason of bad-use of renter or bad-use of the captain of the renter? The renter pays the damage (Art., 602-3) A distance that arrival lasts at least two days, but renter uses the vessel bad (at full (top) speed, continuous; or fatigues of engine) and arrives in one day but a damage occurs in the vessel, the renter pays this damage (Art., 814) A ship anchors and tided to the wharf, obeying the rules of maritime, but with a great storm or with another effect or influence, this ship runs into a ship on the sea or runs into some things on the land (residence etc.) and occurs damage, the rigger does not pay the damage, because, there is not any evil intent and he took the necessary precautions. In the “ Tareyq-i Amm” that is a kind of compulsory-route like the strait of Istanbul, if a ship does not obey the rules of this strait and occurs damage, who breaks the rules pays the damage.(Art., 934-5) A ship is tided to a wharf of a person or wharf of a company without permission and this ship runs into a ship of the owner of wharf and damage occurs, the damage is paid by the ship of tided without permission. But a ship is tided to the wharf of the country (obeying the maritime rules) and runs into another ship, or, two ships anchored to the wharf of the country or two ships anchored in the high seas and runs into each other and damage occurs, no one pay the damage. (Art., 938-39) In the 1.017 the article, Majallah accepts the opinion of Hanafi school (sect) and says: there is not shuf ’ah (preemption) in ship. There is an interesting problem in the 1.075th article: the riggers of a ship let the ship to a renter without permission of the other partners and in this voyage a damage or a loss of management (in respect of monetary) who pays this damage or loss of money? In these positions, how the captain (or super-cargo) acts? (Super-cargo: person on a merchant ship who manages the sale of the cargo, etc. he is the proxy (representative) of the rigger). A ship has got a lot of owner, this ship is rented and some money comes from trading. Some owners take the money of (their shares) but one of the owners does not take the money. What shall they do? (In the 1184th article) A ship became old (got old in service). It is necessary to repair to spend some money. But one of the riggers does not give any money. In this position, the Islamic judge may give three or six months and the judge may say to this rigger “if you do not give this money, I will sell your share” (Art., 1.320) THE THIRD PART CONCEPTS AND SUBJECT

A) JOINT-AVERAGE In a voyage, the relation is based on a ship during a voyage, the owners of loads and owners of freight charge. There is a cooperative-advantage and profit in the ending of a voyage in the safety. In a cyclonic storm, to prevent sinking of a loaded-ship, some loads are thrown out or some fuel or other materials to the sea. Or if the voyage lasts much more from normal-time and the ship is on the high seas and there is not any fuel: in this condition to burn some loads or some other materials of the ship in the cauldron to avoid the similar dangers and to pay for saving services. Or to damage some loads when the extinguishing a fire in the ship. All in these (above) positions, it is an injustice action to make undergo to the interested firm (or person) all of the damage. And in western law the concept of “joint (cooperative)-average” was born. After the salvation (from storm or fire etc.) the damage and expenses have to be shared between (the owner of) the ship (and the owner of) the loads and the value of freight. In the law of maritime, we see The Customs of Rhodes. The Customs of Rhodes were the common rules in the maritime trade of Mediterranean. To protect from the strong storms, to throw some of the load of the ship to the sea or to throw some of the sets of (materials) ship and in the position of to pay ransom to the pirates...in these conditions the damages and expenses would have been shared out according to the Customs of Rhodes. The tradesmen of Roman Empire applied to the Emperor Claudius and the Senate of Roman Empire decreed the Customs of Rhodes in 53 CE. After that, the rules about cooperative average are seen in the Decree of Maritime of France in 1681 CE. These rules took their places almost in the Code of Commercial Law in 1807. The Cooperative Average is seen in the modern times in the Code of Commercial Law of Prussia. Whereas the famous Islamic jurist Ibn Hazm (from Spain/Andalusia) that his death was 1063 CE, in his famous Islamic law book Al Muhalla, and another famous Islamic jurist Ibn Qudama that his death was in 1283 CE, in his famous book Al Mugney, they both mentioned this subject. They both said: In the sinking of a ship, if it is feared, some of the load is casted. The owners of these loads, if they cast the loads to the sea they have not got any right to demand the value (worth) of the loads. First of all, it is necessary, according to Islamic law, to cast the loads of without soul. (ın Islam animals and mankind have got souls) After that, if it is feared to sinking the ship, the animals are casted to the sea. The human beings are not casted. If one of the passengers says to an owner of a load “cast your load to the sea” and the owner of the load casts on this man’s order, the price of the load is not paid. But this passenger if days “cast it, I will pay you its value”, this passenger pays his share (that the value of this casted load is divided to the number of passengers.) Also if this passenger says “cast it to the sea, all of us will pay you its value”, this passenger pays the complete value of this load. But if the other passengers hear this sentence of the passenger but they stay in silence, they do not say anything, they do not pay any money. But if they show consent (that is, if they say for example “okay”) this time, all of them pay. If it is feared to sinking a ship from a trouble in the sea, the heaviest load is casted to the sea, first of all. The other passengers and the owners of the loads in the ship, they do not pay anything to the owner of the heaviest load. But according to Imam Malik (great scholar and founder of Malekey School) the casted load to the sea, if this load is a commercial load, it is necessary to pay its value to its owner. But if this load is a kind of food, it is not necessary to pay an indemnity. Imam Malik’s this opinion is interesting opinion but I think it is invalid in the modern world. But according to Zahiris: if the cast of the heaviest load will be trouble and will take (last) a long time (to throw out) and if they fear the sink of ship, this time the load of the lighter in weight will be casted to the sea.

B) ACCIDENTS ON THE SEAS In our time, the ships and their tonnages have become very big. In the sinking, huge damages, loss of money, loss of properties, loss of loads and sometimes loss of casualties may happen. The causes of the sea-accidents sometimes are from natural events like fogs, mists, storminess, sometimes technical problems like over speed, the errors of maneuvers, the errors of courses (routes) and the breakdowns of machine (of the ship) and the breakdowns of rudder that they are unexpected and inevitable. The accidents of sea are two parts that are the faulty accidents and non-faulty accidents. If the captain (of the ship) acts as a captain of cautious and follows the preventive rules and takes the necessary precautions and after all these, if the accident occurs, this is a non-faulty accident. In non-faulty accidents, who pays the damages? Interested-side pays the damage. The rigger pays the damage of the ship, the owner of the load pays the damage of the load, the passengers pay the damages (occur to (in) their bodies), and also interested-man (side) pays their (other) losses. In the accident in which the cause of the accident is unknown and uncertain, according to the Kanunnama al Tejarat-al Bahreyya (The Decree of Maritime Trade): “the riggers are responsible at the rate of their ships.” According to the Code of Trading of France, it is said: “the riggers are responsible on a fifty-fifty basis.” In Islamic law, a contemporary Islamic jurist Hayraddun Karaman says: “One of the captain of two ships, if he is faulty, for example: it was possible to stop his ship or it was possible to turn the direction the ship’s course but he did not do and (or) he had not got complete instruments and personnel (some instruments and personnel in the ship were absent) the captain pays the indemnity. And (for example) one of the ship is motionless and the other is going, (or in the rivers: one of the ship is in the direction of current (flow) and the other ship is on the opposite direction) the indemnity is paid from the captain of going (and the captain on the direction of current) (but this captain is faulty also). If the accident occurs from the reason of inevitable events, for example\ because of storm, both of the owners of the ships do not pay any indemnity. In the other events, the indemnity is compared to the accidents of land. C) THE MARITIME INSURANCE In western world, the concept of insurance was born from the overseas trade. The oldest maritime-insurance policy, its date 1347 CE and it had been written in Italian in Genoa. Another maritime-insurance policy have been hidden in the British Admiralty Department that its date is 1547 CE. But Edward Lloyd who had done the insurance, as an establishment, he was a jew that he had got a coffeehouse in Tower –Street in London. Lloyd began this job in 1666. When he died in 1712, he had developed his job. In western world and in Islamic world the insurance system had not developed for centuries. The reason of this, the inculcations of religious men that “What God wrote, it occurs”. In the Ottoman Empire the maritime insurance was accepted very late. Religious and social reasons influenced this delay. At the end, a fatwa (opinion of an Islamic jurist) was decreed from the Department of Shaykh-al Islam (Shaykh-al Islam was the official of the most superior scholar of Ottoman Empire, he was the third man in the Ottoman protocol after Sultan (Padishah) and Grand Vizier (Sadrazam.) In this decree “every person has to protect his property that these properties are given by God.” The first judgments of insurance, we see, in the Kanunnama Tejarat-al Bahreyya (The Decree of Maritime Trade) of 1864. And in 1906 was added 25 articles about the other subjects of insurance system and these amendments’ source was the maritime insurance. ACCORDING TO ISLAMIC LAW, the majority of Islamic jurists still look to the

insurance system with doubts. The Islamic trade system has been very sensitive about suspicion (uncertainty) of interest. In Islam, interest-free system is forbidden. To realize the values (premiums) in interest-free system is not appropriate according to Islam. And also there are some other problems in modern insurance system that is forbidden according to Islamic rules. That’s why to develop the system of cooperative-average will be the more appropriate for Muslim sailors and tradesmen. D) THE RIGHT OF PAWN The western maritime law gives a right of keeping (pawn) to the owner of the ship on the load (cargo). (In some conditions: for example, the customer did not pay the price of transportation) In Islamic law, on the contrary, there is not any right keeping the load. If the rigger keeps the load and the load is ruined, the rigger pays the damage (value) of the load. E) LOAN ON BOTTOMRY The loan on bottomry is a taking loan of the captain (that he is the judicial responsible for the ship) that he pawns ship or freight or load or one of them or more and on condition that premium to taking of creditor his right. For this purpose the captain writes a bond of loan on bottomry and signs. The amount of money is written and “to pay a premium” is undertaken. The premium is a fixed percent of the capital and is higher than labor. Loan on bottomry is an interest-free procedure. That’s why Islamic law does not permit this kind of loan. But in extraordinary conditions, if the rigger of the ship does not stand as protector or patron and the ship is far from its agent’s country (company’s country) and the captain can not find any capital to return to the country, in this condition of obligation, the captain may sign a bond of loan on bottomry. CONCLUSION At the end of this study we saw a lot of subjects of modern maritime law that they also can be found in the books of Islamic law. Especially in the parts of Islamic fiqh books in Kitab al-Ijarah (The Leasing/Renting Book) Kitab-al Bay’ (The Trading (Buying and Selling)Book) Kitab al-Shuf’ah (The Book of Pre-Emption) and Kitab-al Rahn (The Book of Pawn). We believe that the studies about Islamic Maritime Law will be very useful to codificate of this branch in Islamic law and for Islamic culture and it will give useful thoughts to Western Law. (1)The Chapter of Kahf, v, 60-82 (2)The Chapter of Saffat, v, 139-47 (3)The Chapter of Hud, v, 37 (4)Al Mu’jam-ul Mufahras (5)Muslim, Sahih, K.Hajj, B. 43, Hd, 259 (6)Ibn Majeh, Sunan, K.Tahara (7)Bukhari, Sahih, K.Buyu, B.112; Muslim, K.Musaqat, B.13 (8)Bukhari, K.Magazi; Muslim, K.Sayd wa-z Zabaih, B,4 (9)Muslim, K.Masajed, B,39 (10)Bukhari, K.Riqaq (11)Caga Tahir, The History of Maritime Law, v,1, p,3 (12)Ibid, p, 2 (13)Zilelioglu Hilal, Legislative Precautions for Prevent The Pollution Of Seas, p, 512

(14)Tirmizi, Sahih, v,1, p,100 (we see this sentence in all of the hadith books) (15)Al Marghinani, al-Hedayah, v, 4, p, 221; al-Mavsili, al-Ikhtiyar, v, 5, p, 57; Damat, al-Majma al-Anhur, v, 2, p, 684 BIBLIOGRAPHY Bilmen Umar Nasuhi, Istilahat-i Fikhiyye Kamusu (Qamus-al Estelahat-al Fiqheyya), 1985 Bukhari Muhammad b. Ismail, Al Jamiu al-Saheyh, 1289 AH Caga Tahir, Deniz Hukuku (The Maritime Law), 1990 Ceker Orhan, Fikih Dersleri (The Lessons of Fiqh), 1991 Damad, Shaykhzadeh Abdurrahman, Majma-al Anhur fi Sharh al-Multaqa al-Abhur, 1317 A.H Karaman Hayreddin, Islam Hukuk Tarihi (The History of Islamic Law), 1989 Majallah, 1329 A.H. Muhammad Fuad Abdu al-Baqi, al-Mu’jam al-Mufahras Marghinani Burhanuddun, al-Hedaya, 1965 Mawsili Abdullah b. Mahmud, al-Ikhtiyar, 1980 Sofuoğlu Mehmed, Sahih al-Muslim and its Translation, 1974 Shawkani, al-Nayl al-Awtar, 1971 Tirmizi Muhammad b. Isa, Sahih al-Tirmizi, Yavasca Cemalettin, The Maritime Law, 1993 Zilelioglu Hilal, Legislative Precautions To Prevent the Pollution of Seas, 1991

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