Gesetzgebung, verfahrensrechtliche Realität und Rechtslehre im römisch-holländischen Recht des 16. bis 18. Jahrhunderts. Das Problem des Mitverschuldens bei Schiffskollisionen

Abstract

This article presents the different solutions provided by various statutes, case law and legal doctrine on the subject of contributory negligence in the event of a collision of ships. With regard to collision cases in Roman-Dutch law, there were various views on the legal solution in cases where two ships collided and both captains had acted negligently. The Hoge Raad decided that where it was not clear who had acted negligently, or where the negligence was equal on both sides, the damage had to be regarded as common and both should bear the damage equally. This decision obviously contrasts with that advanced by Roman law. The Roman approach was adopted as a basis by legal doctrine scholars such as Van Bijnkershoek, and later Van der Keessel, who argued that each should bear his own loss. Interestingly, this view was supported by two local statutes. The article ends with a discussion on another situation, namely that of a stationary ship being hit by a sailing ship. Van der Keessel considered the fault of the sailing ship as more serious and therefore argued that the fault of the (captain of the) sailing ship could not be compensated by the fault of the stationary ship. Thereby he introduced a renewed application of the medieval culpae compensatio doctrine.