Two Tenth-Century C.E. Islamic Treatises on Admiralty and Maritime Laws from the Mediterranean Sea and Western Indian Ocean

By Hassan S. Khalilieh

Nautical issues are treated by Islamic law from two distinct perspectives governed by two different systems. The first is public international law, which covers themes related to the customary law of the sea, specifically the legal status of the high seas and freedom of navigation, territorial sea related issues, right of transit passage, naval activities and war at sea, combating piracy and armed robbery at sea through bilateral and multilateral international treaties, and marine related environmental issues, and private commercial law. Second, admiralty and maritime law, a branch of private commercial law, governs legal issues related to both ships and the human element at sea. It covers physical characteristics, ownership, operation, and crewing. Predominantly, it focusses on the carriage of cargo by sea, contract forms, shipowners’ limited liability, jettison and general average loss and contribution, collision, salvage, qirāḍ/muḍāraba – partnership (commenda in Latin). Religious practices on board ships are also well-addressed in jurisprudential literature, irrespective of the madhāhib affiliations.

In the tradition of Islamic jurisprudence, problems peculiar to admiralty and carriage by sea are generally dispersed in chapters pertaining to hire, partnership, deposit, sales, jihād, fixed punishments, almsgiving, pilgrimage, fasting, prayer, and so forth. Extraordinary exceptions are two legal treatises from the tenth-century from the Islamic Mediterranean and Western Indian Ocean – Kitāb Akriyat al-Sufun wa’l-Nizāʿ bayna Ahlihā (Treatise on the Leasing of Ships and the Claims between their Parties) and Masāʾil fī Asbāb al-Baḥr (Jurisprudential Issues relating to Sea Affairs).

Written in the form of responsa, the core text of the Kitāb Akriyat al-Sufun, as composed by the original author Muḥammad Ibn ʿUmar al-Kinānī al-Andalusī al-Iskandarānī (d. 310 A.H./923 C.E.), consists of only nine chapters. An appendix of six jurisprudential inquiries was apparently added later by the compiler Khalaf Ibn Abī Firās – a Mālikī jurist from Qayrawān, who flourished between the years 330-359/941-969 and died there in 359/969 – or a later time. The first chapter deals with hiring seamen. Chapter Two treats the leasing of ships, forms of hire, and freight charges. Problems that may emerge between the contracting parties after concluding the charter agreement and that may prevent them from completing their transaction are discussed in the third chapter. The fourth chapter establishes the payment arrangements between the contracting parties if a technical malfunction in a ship should occur in the port of origin, en route, or after docking at the final destination. The fifth and longest chapter covers jettison, salvage, and contribution (pro-rata remedy for losses). Liability or otherwise of shipowners for what they carry is addressed in the sixth chapter. The author of the treatise devotes the seventh chapter to the procedures of loading and unloading goods. Partnership in a vessel is inadequately treated in the eighth chapter, while the ninth chapter refers to various maritime qirāḍ and payment arrangements. Finally, the appendix, whose legal inquiries date between the second half of the tenth and the first half of the eleventh century, concerns itself with the calculation of freight charges, overloading, the shipowner’s liability for the transport of specific goods to their destination, collision, jettison, and general average. The Kitāb Akriyat al-Sufun is thus not precisely a collection of maritime laws that treats ownership and possession of ships, methods of acquisition, rights of co-owners, master-crew relations, and so on, but rather a maritime treatise that treats mercantile and shipping matters exclusively.[1]

Dating back to the fourth century A.H., the corpus of Masāʾil fī Asbāb al-Baḥr, as transcribed by the Ibāḍī jurist Abū Saʿīd Muḥammad Ibn Saʿīd al-Kudamī (305-372/918-972), on the authority of his master teacher Abū al-Ḥasan Muḥammad Ibn al-Ḥasan al-Nazawī (early fourth century A.H.), is by far considered one of the oldest and most comprehensive Islamic corpora on admiralty and maritime laws in the Western Indian Ocean.[2] Its composition and promulgation coincided with the rapid bourgeoning of Omani maritime activities and overseas commerce with the east coast of Africa, India, and Southeast Asia. However, contrary to its Mediterranean parallel Kitāb Akriyat al-Sufun, which consists exclusively of legal opinions pertaining to maritime commercial law, the issues addressed in the Masāʾil corpus reflect actual life at sea from the moment the merchant, shipper, or passenger intends to conclude the charter agreement until he disembarks from the ship and stores his goods in the warehouse.

After espousing those elements that engender a sense of security, the jurist portrays the rules of etiquette on board: seat allocation, emergencies, facilities permitted for use on board, washing and cleaning garments, movement on board, and the right to use the water tank. The third section describes the liability for damage incurred on board including private property and ship’s tools and facilities intended for communal use. Section four is devoted to commercial transactions on board and the circumstances in which the business transaction can be executed between the parties in a lawful manner. The captain’s exclusive jurisdiction over the vessel, her contents, and all those on board is treated in the fifth section. Jettisoning cargo overboard and calculating the general average contribution are dealt with in the sixth section. Sections seven and eight portray the religious rituals at sea, especially the performance of congregational prayer and the treatment of the deceased on the high sea. The last section covers various issues related to testimony, adjudication, marriage contract, transfer of property, giving gifts, and promises.

A unique feature of these treatises is the jurists’ jurisprudential approach of reconciling Islamic legal principles with the established customs and traditions of those engaged in maritime trade and shipping. They achieved this by issuing legal opinions that adhered to Islamic law while also acknowledging the customary practices, so long as there was no contradiction between the two. With the Islamic expansion in the eastern and western hemispheres from the seventh century onwards came a gradual process of mutual acculturation, by which Muslims absorbed and accommodated to themselves local customs that became an inseparable part of the social and legal norms. Both Muslim judicial and ruling authorities not only retained the pre-Islamic customs and traditions, but also adapted and Islamicized laws and customs so long as they were consistent with the Qurʾān and Sunnah. This may explain why jurists and judges often took into consideration general custom (ʿurf ʿāmm), specific custom (ʿurf khāṣṣ), jurists’ custom (ʿurf al-fuqahāʾ), artisans’ custom (ʿurf al-ṣunnāʿ), merchants’ custom (ʿurf al-tujjār), and so on in key areas of litigation. In the first chapter of the Kitāb Akriyat al-Sufun, the author emphasizes the role of the local custom and practices in the conclusion of commercial contracts. The treatise’s author goes further, claiming that the custom (ʿurf) replaces and even supersedes an explicit stipulation. Citing the prominent North African jurist Saḥnūn Ibn Saʿīd al-Tanūkhī (160-240/777-854), he rules that “if hiring arrangements are to be admitted solely on the basis of analogy (qiyās), most will be invalidated; [only recourse to custom makes them licit].”[3] Accordingly, in the absence of a written contract and explicit stipulations, jurists and judges would normally resort to local custom. Similarly, the author of the Masāʾil underscores the significance of referring to customary practices when engaging the services of shipowners: “Knowledge is that which is mashhūr (recognized practice), which reason comprehends as a human need to which the heart is inclined with a sense of confidence. This is because the maʿrūf (established convention/custom) is that which is perceived by prudential intellects and accepted with confidence by the hearts, while the munkar (vice/evil) is that which is rejected by reason and cripples the breast.”[4]

While both treatises provide valuable legal and historical insights, a comprehensive understanding of Islamic admiralty and commercial maritime law requires a broader approach. This includes examining earlier and later jurisprudential sources alongside merchant letters from the eleventh and twelfth centuries found in the Cairo Geniza.[5] For example, these treatises remain silent on crucial issues. One such omission is whether Islamic law recognizes a ship as a distinct legal entity. This silence impacts rulings on matters like shipowner’s bankruptcy, liability, jettison of cargo, and salvage operations. Significantly, the Cairo Geniza offers a groundbreaking example from a 1030 merchant letter. This document represents the earliest recorded instance of a ship being personified in maritime legal history.[6]

Finally, similar to the lex mercatoria Islamica, where Muslim merchants formulated their own commercial regulations for local, regional, and long-distance trade, shipowners and seafarers, drawing on their rich maritime heritage, crafted their own admiralty and maritime laws, ensuring harmony with Islamic legal principles. One of the key duties of the ruling circles was to cultivate environments conducive to facilitating trade at local, regional, and global levels. Ruling elites’ involvement in formulating laws and regulations governing maritime commerce and shipping was almost negligible.

Source: Manuscript no 1.155 (2) of la Biblioteca del Real Monasterio de San Lorenzo de El Escorial, folios 41v.-42r.

Notes:

[1] Manuscript no 1.155 (2) of la Biblioteca del Real Monasterio de San Lorenzo de El Escorial, folios 41v. to 55r. The entire manuscript was published by Muṣṭafā A. Ṭāher, “Kitāb Akriyat al-Sufun wa’l-Nizāʿ bayna Ahlihā,” Cahiers de Tunisie 31 (1983): 6-53; an English rendition of the treatise is appended to my Admiralty and Maritime Laws in the Mediterranean (ca. 800-1050): The Kitāb Akriyat al-Sufun vis-à-vis the Nomos Rhodion Nautikos (Leiden: E.J. Brill, 2006), 273-330.

[2] The treatise is fully copied by Muḥammad ibn Ibrāhīm al-Kindī, Bayān al-Sharʿ (Muscat: Ministry of National Heritage and Culture, 1404/1984), 6:99-113.

[3] Tāher (ed.), “Akriyat al-Sufun,” 15.

[4] Kindī, Bayān al-Sharʿ, 6:99.

[5] Hassan S. Khalilieh, Islamic Maritime Law: An Introduction (Leiden: E.J. Brill, 1998), 13-21.

[6] Hassan S. Khalilieh, “Goitein, the Geniza, and Aspects of Islamic Maritime Laws and Practices,” Jewish History 32, no. 2 (2019): 531-33.

(Suggested Bluebook citation: Hassan S. Khalilieh,  Two Tenth-Century C.E. Islamic Treatises on Admiralty and Maritime Laws from the Mediterranean Sea and Western Indian Ocean, Islamic Law Blog (May 23, 2024), https://islamiclaw.blog/2024/05/23/two-tenth-century-c-e-islamic-treatises-on-admiralty-and-maritime-laws-from-the-mediterranean-sea-and-western-indian-ocean/)

(Suggested Chicago citation: Hassan S. Khalilieh, “Two Tenth-Century C.E. Islamic Treatises on Admiralty and Maritime Laws from the Mediterranean Sea and Western Indian Ocean,” Islamic Law Blog, May 23, 2024, https://islamiclaw.blog/2024/05/23/two-tenth-century-c-e-islamic-treatises-on-admiralty-and-maritime-laws-from-the-mediterranean-sea-and-western-indian-ocean/)

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