Civil Greece

GREECE is a civil law country. Its legal system is based on Roman law as it developed through the (Eastern) Roman Empire later known as Byzantium.

Since the Easter Roman Empire was effectively Greek, its law was applied by the Greeks as the law of the nation not only during Byzantium but also during the Ottoman occupation of Greece (1453-1821).

After independence, Greece continued to apply as its civil law "the laws of our ever-remembered Byzantine Emperors" until the introduction of its Civil Code in 1946. Thus Greek private law is based on Roman law. It should be noted, though, that the origins of Roman law come from the laws of Athens and other city states of Greece, which the Romans studied, before inscribing their law on the Duo-decem Tabulae.

On the commercial law side, Greece adopted the Code du Commerce of France, whilst on the civil procedural, criminal and criminal procedural law Greece introduced its own codes from the early years following independence, which codes were based effectively on German prototypes.

Maritime law was and still is deemed part of the commercial law. Yet the increasing importance and development of shipping business in Greece, particularly after the Second World War, necessitated certain initiatives which led to the introduction of important legislation.

In order to provide better security to mortgagees, Greek ship hypothecation law was drastically changed in 1953 when LD 2687/1953 was introduced.

In effect, this meant that mortgagees were given certain additional rights totally unknown and inconsistent with the civil law hypotheque, including, inter alia, the right to take possession of the mortgaged ship or to sell the ship by private treaty, if the owner of the ship is in default under the mortgage.

Such rights are not available in ships-hypotheque, which until 1953 was the only form of security in rem available to lenders under the existing legislation. Thus, the preferred ship mortgage under LD 2687/1953 looks more like an anglo saxon mortgage than a ships-hypotheque.

Following the enactment of LD 2687/53, Greece codified its private maritime law (Law 3816/1958). Surprisingly enough, the part relating to ship mortgages (Articles 196-204) is again based on the civil law understanding of hypothecation and totally ignores the anglo saxon concept of preferred ships mortgage already known in Greece. Instead, by LD 3899/1958 (enacted in the same year as the Private Maritime Code) the preferred ship mortgage is introduced as a separate form of hypothecation applicable on all ships over 500 grt.

Twenty years ago

IN 1997, I earned my living as the insurance and law editor of Fairplay International Shipping Weekly. In the September 29 issue for that year, I covered a dispute in the US Court of Appeals between Atlantic Lines and American Motorists Insurance Co.

Atlantic leased 700 pieces of equipment, including chassis and containers, to use on board two vessels which it used to operate a liner service between New York and various ports.

When the service was terminated, it was discovered that two containers and six chassis were missing.

Atlantic admitted complete ignorance of the cause of the disappearance. It just didn’t know where they were. The underwriters, meanwhile, denied liability for the loss on the basis that there was no cover under the policy for lost equipment and, in any case, Atlantic had not met the burden of proof of establishing that the equipment was no longer in existence.

What manner of insurance policy was this, one wonders. The US Court of Appeals held that, in construing the language of an insurance policy, the standard is what a normally constituted person would have understood it to mean in its actual setting.

The court did not believe that the average insured would not equate a mysterious disappearance with a fortuitous loss, and judgment was given in favour of Atlantic.

Surprisingly, the court of first instance had previously found for the underwriters, pointing out that a party normally demonstrates that a loss was fortuitous by proving the cause of absence. The average insured, or anybody else for that matter, would surely deem this an unthinkable decision. For me, the unthinkable thing is that I am now apparently so old that I am featuring on historical pages. Surely some mistake.